Spain – Amnesty International Report 2011

Allegations of torture and ill-treatment by law enforcement officials persisted, and investigations into such allegations continued to be inadequate. Spain refused to abolish incommunicado detention despite repeated recommendations by international human rights bodies. A man suspected of terrorism was extradited to Morocco despite risks of torture and unfair trial. The armed group Euskadi Ta Askatasuna (ETA) announced a ceasefire. Former detainees from Guantánamo Bay were granted international protection. Reports of violence against women and girls increased. An investigating judge was suspended for launching an investigation into international crimes committed during the Spanish Civil War and the Franco regime.
Torture and other ill-treatment

Allegations of torture and other ill-treatment by law enforcement officials continued. No measures were taken to compile and publish data on cases which may have involved violations of the human rights of people in police custody, as provided by the Human Rights Action Plan adopted by the government in 2008.

In June, the reform of the criminal code did not amend the definition of torture, despite recommendations by the UN Committee against Torture to bring it in line with international human rights standards. The criminal code continued to distinguish between “serious” infringements of the article prohibiting torture and infringements “which are not”.

“    The trial of two police officers charged with killing Osamuyia Akpitaye while he was being forcibly deported from Spain in June 2007 was set for 16 and 17 March 2011.

Counter-terror and security

The authorities continued to hold in incommunicado detention people suspected of terrorism-related activities. People can be held for up to 13 days during which time they cannot appoint their own lawyer or consult their duty lawyer in private, do not have access to a doctor of their own choice and cannot let their family know of their whereabouts. In May, the government rejected recommendations from the UN Universal Periodic Review to abolish this form of detention.

“    Following a formal complaint by Mohammed Fahsi’s lawyer, in January Investigating Court No. 23 of Madrid agreed to examine his allegations of torture, but in April it had closed the investigation. Mohammed Fahsi had alleged he had been tortured during his incommunicado detention following his arrest by the Civil Guard in January 2006. His complaint was initially rejected by the Public Prosecutor and investigating judge. The Investigating Court reasoned that the complaint had been filed more than three years after the events and that Mohammed Fahsi had told the forensic doctor that the treatment he received was “normal”. An appeal against the court’s decision was pending at the end of the year. In January, Mohammed Fahsi had been sentenced to seven years’ imprisonment for belonging to a terrorist organization; he had already spent four years in pre-trial detention. He had appealed that decision before the Supreme Court and was released pending the ruling.
“    On 25 June, Investigating Court No. 1 of Madrid dismissed the complaint by Maria Mercedes Alcocer of torture, injury and serious threats by members of the Civil Guard while she was held incommunicado from 10 to 13 December 2008. A forensic report, dated 12 December 2008, documented bruises and traces of kicks and blows. However, in its decision to close the case the court stated that none of the forensic reports revealed any external sign of violence against Maria Mercedes Alcocer and implied that the complaint’s only aim was to identify the members of the Civil Guard who had been involved in her detention. Her appeal against the decision was pending at the end of the year. In May, Maria Mercedes Alcocer had been charged before the National High Court for collaborating with an armed group. The verdict was pending at the end of the year.
“    On 28 September, the European Court of Human Rights found that Spain had violated the prohibition of torture and other ill-treatment. The authorities had failed to investigate allegations of torture by Mikel San Argimiro Isasa during the five days he spent in incommunicado detention at the Directorate-General of the Civil Guard in Madrid in May 2002.
“    On 30 December, the Criminal Court of Guipúzcoa convicted four civil guards of torturing Igor Portu and Mattin Sarasola while they were in police custody on the morning of 6 January 2008. The court ruled that the fact that the two men had been convicted of belonging to the armed group ETA and committing serious terrorism offences did not make their statements unreliable. However, their allegations of ill-treatment during their subsequent detention and transportation were rejected for lack of proof. The 11 other civil guards on trial were acquitted.

Extradition

“    On 14 December, the Spanish authorities extradited Ali Aarrass, a dual Moroccan-Belgian national accused of terrorism-related offences, to Morocco. By doing so the Spanish authorities breached interim measures ordered by the UN Human Rights Committee calling on Spain not to enforce the extradition until the Committee had taken a decision on his case.

Abuses by armed groups

In March, a French police officer was killed by members of the armed group ETA in a shoot-out in Dammarie-lès-Lys, near Paris. On 5 September, ETA announced that it would not carry out any “offensive armed actions”.

Refugees and migrants

According to the Ministry of the Interior, 3,632 irregular migrants arrived on Spanish coasts, which was 50 per cent less than in 2009 and the lowest number for the decade. The decrease was due in part to the continued policies of interception of migrants and asylum-seekers at sea, and readmission agreements signed with countries of origin and transit.

In September, the government rejected the recommendation by the Universal Periodic Review working group to sign and ratify the UN Migrant Workers Convention.
Guantánamo Bay detainees

In February, the then Foreign Minister confirmed that Spain was willing to provide five former detainees from Guantánamo with international protection. The announcement was followed by the arrival of a Palestinian man on 24 February, a Yemeni man on 4 May and an Afghan man on 21 July, all of whom had been held in US custody at Guantánamo Bay.
Trafficking in human beings

In June, the government amended the definition of human trafficking in the criminal code and brought it into line with the Council of Europe Convention on Action against Trafficking in Human Beings. However, there were concerns that the right to a recovery and reflection period for foreign nationals in an irregular situation who are believed to be victims of human trafficking was not always respected in practice. Such a period is enshrined in the Law on Foreign Nationals for a minimum of 30 days during which expulsion proceedings should be suspended. At the end of the year no measures had been taken to instruct the relevant authorities on how to identify victims of trafficking according to the law.

“    On 17 March, Gladys John, a Nigerian citizen who was two months pregnant, was expelled to Nigeria despite concerns of the UN refugee agency, UNHCR, that she could be a victim of human trafficking. On 10 March, the Central Court for Administrative Litigation No. 6 in Madrid had rejected her asylum application and refused to recognize her as a victim of human trafficking.

Children’s rights

Allegations of corporal punishment, isolation, abusive prescription of drugs and inadequate health care in centres for minors with behavioural or social problems persisted. In September, the UN Committee on the Rights of the Child expressed concern that those centres might constitute a form of deprivation of liberty. The Committee recommended that Spain should ensure that legislation and administrative regulations in all autonomous communities conform fully to the Convention on the Rights of the Child.

Violence against women

According to the Ministry of Health, Social Policy and Equality, the number of women killed at the hands of their partners or former partners increased to 73, of whom 27 were migrant women.

Migrant women in an irregular situation who were victims of domestic or gender-based violence continued to fear registering a complaint with the police due to the risk of expulsion following such a complaint. An amendment to the Law on Foreign Nationals in December 2009 included expulsion proceedings to be initiated when migrant women in an irregular situation register a complaint of gender-based violence.

Victims of gender-based violence also continued to encounter many obstacles to fair and timely reparation.

“    In July, 10 years after the events, Ascensión Anguita received compensation from her ex-husband for the serious physical and mental effects he caused by stabbing her 15 times. She was unable to work and suffered from post-traumatic stress disorder, and had been living on a monthly disability allowance.

Racism and discrimination

The authorities failed to take steps to combat discrimination against foreign nationals and to support freedom of expression and religion.

“    In January, a circular issued by the General Directorate of the Police and Civil Guard allowed for the preventive detention of foreign nationals who do not produce identity documents during identity checks. Police unions were concerned that this could lead to unlawful detentions, and called for the immediate withdrawal of the circular.
“    In May, the government supported the recommendations by the UN Universal Periodic Review working group to collect and publish statistics on racially motivated crimes and to develop a national plan of action against racism and xenophobia. However, at the end of the year no further steps had been taken. The provision by the Human Rights Plan of 2008 to establish a National Strategy to Combat Racism had still not been implemented.
“    Several municipalities passed regulations banning the wearing of full-face veils in municipal buildings. The Senate approved a motion in June urging the government to ban the use of full-face veils “in public spaces and events”. There were concerns that a wide-ranging ban would violate the rights to freedom of expression and religion of women who choose to wear a full-face veil as an expression of their identity or beliefs.

Enforced disappearances

Although amendments were made to the criminal code in June, the government failed to introduce a definition of crimes under international law such as enforced disappearances and extrajudicial executions.

“    In April, the Supreme Court accused investigating judge Baltasar Garzón of breaking the 1977 Amnesty law. Baltasar Garzón had initiated Spain’s first ever investigation into crimes committed during the Spanish Civil War and the Franco regime, involving the enforced disappearance of over 114,000 individuals between 1936 and 1951. Subsequently, in May the General Judicial Council suspended him from duty for the duration of his trial before the Supreme Court. Amnesty laws and statutes of limitation for enforced disappearance, torture or crimes against humanity are inconsistent with international law, and in 2008, the UN Human Rights Committee had called on Spain to consider repealing the 1977 Amnesty law. However, it still remained in force at the end of the year.

International justice

In September and November, the National Criminal Court closed investigations into crimes committed in Myanmar and Tibet. The decisions were taken following the limitation of universal jurisdiction by an amendment to the Law on the Judiciary in October 2009. Since the amendment, domestic courts were no longer able to prosecute cases unless the victims were Spanish citizens, the alleged perpetrator was in Spain, or there was another “relevant connecting link” with Spain and only if there was no effective investigation or prosecution already in another country or international court.

“    In September, the government requested the extradition of Faustin Kayumba Nyamwasa, head of the Rwandan army, from South Africa. In 2008, the National Criminal Court had charged him with genocide and crimes against humanity in Rwanda.

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