4.1.1 Formal Acceptance

In the period of the adoption of the 1978 Constitution and the restoration of democracy (1968–1990), Spain ratified most of the UN core human rights treaties, with the exception of the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (cmw). In parallel, Spain joined the most relevant Council of Europe (CoE) and European Union (EU) human rights treaties (1979–2007). Spain has also accepted the individual complaints procedure before eight UN treaty bodies (untbs), with the exception of cmw Cttee, in the period 1985 to 2014, and the inquiry procedure before five untbs, with the exception of the cescr Cttee, in the period 1987 to 2014.

Neither early warning measures by the cerd Cttee nor urgent actions by the ced Cttee were adopted regarding Spain. The spt paid a visit to Spain in 2017. The crpd Cttee conducted an inquiry visit to Spain in 2017.

Spain entered an interpretative declaration to the Optional Protocol to ccpr (op1-ccpr) to preserve the competence of the ECtHR; a reservation to the Convention on the Elimination of All Forms of Discrimination against Women (cedaw) to preserve the constitutional provisions concerning succession to the Spanish crown (preference to male heirs); and minor reservations to articles 21(d) and 38 of the Convention on the Rights of the Child (crc).

4.1.2 Non-Acceptance of cmw¹⁶

cmw currently has 57 state parties, but none of them is a member of the European Union (EU),¹⁷ largely because the EU takes the view that its position was not considered when the Convention was drafted and adopted by the UN General Assembly. In 2010 and 2015 Spain reported to the Universal Periodic Review (upr) that, as in the case of all other developed countries that are destinations for international migratory flows, it is not a signatory to cmw. It further noted that ‘Part iii of the Convention confers rights on all workers and their families without distinction, ie regardless of whether or not they are in a regular situation (articles 8 to 35)’.¹⁸ However, the Spanish Aliens Act¹⁹ sets forth two categories of rights and freedoms for foreigners in Spain: (a) rights to which all foreigners are entitled, namely, fundamental rights; and (b) social rights that only foreigners lawfully residing in Spain may exercise.

As discussed by some academics, the Spanish accession to cmw would allow the rights of all migrant workers and their families to be extended along with the principle of non-discrimination established by the ccpr and the International Convention on the Elimination of All Forms of Racial Discrimination (cerd), irrespectively of their administrative status. However, it will require the amendment of discriminatory provisions in the 2000 Aliens Act, which are allowed by article 13 of the Constitution.²⁰

Finally, many treaty bodies recommended that Spain join cmw. This is the case of the most recent Concluding Observations (cos) adopted by the cescr Cttee,²¹ the crc Cttee,²² the cedaw Cttee,²³ the cat Cttee²⁴ and the cerd Cttee.²⁵

4.1.3 General Attitude of Spain towards UN Treaty System

Spain considers that recommendations contained in cos, as well as interim measures and views adopted by UN committees, are merely recommendations and, therefore, not legally binding.²⁶ Since the recovery of democracy, the judiciary has for a long time followed this pattern. The Supreme Court judgment of 17 July 2018 unexpectedly found that the state has an obligation to comply with the views emanating from cedaw and its Optional Protocol.²⁷ Therefore, it paved the way towards a more significant impact of the treaties and the committees’ decisions in the future.²⁸

4.1.4 Level of Awareness

As a general trend there is not a high level of awareness of the treaties among the executive, the legislative, the judiciary and legal practitioners.²⁹ untbs are not part of the school and university curricula, including the judiciary school. Treaties are not officially translated into local languages. Only a few law schools offer courses related to untbs at master’s degree level. Therefore, awareness of untbs is confined to some university researchers and a few human rights non-governmental organisations (ngos) specialising in particular treaties.³⁰ When the media sporadically covers treaty body activities relevant to Spain, the information provided often is inaccurate or manipulated.³¹

4.1.5 State Reporting

Spain generally meets its reporting obligations, while occasionally accumulating some delays and some overdue reports.³² Reports on cerd were submitted 20 months late; the fifth periodic report on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (cat) was received more than three years late.

The Human Rights Office within the Directorate-General for the United Nations and Human Rights at the Ministry of Foreign Affairs, European Union and Cooperation is the lead agency for coordinating reporting on human rights obligations. This unit prepares the draft reports incorporating inputs from relevant departments and ministries. Reports are formally shared with ngos only once they have been finalised and sent to Geneva.

The reports are rather formal since they refer extensively to legal texts, but they lack sufficient data to evaluate real treaty implementation by the executive and the judiciary. Shortcomings are not recognized.

In 2002 the cat Cttee commended Spain for sending ‘a large and highly-qualified delegation’.³³ Since then none of the delegations sent to treaty bodies included high-ranking officials, with the exception of the delegation sent in 2004 to the cedaw Cttee, headed by the Minister of Equality;³⁴ in 2018 the crc Cttee received a ‘high-level and multisectoral delegation’.³⁵

The National Ombudsman (Defensor del Pueblo) only submitted one alternative report to the cerd Cttee (2011).³⁶ In its capacity as national mechanism for the prevention of torture, it submitted alternative reports to the cat Cttee in 2009 and 2015.³⁷ The National Ombudsman as well as the Basque and Catalan Ombudsmen also submitted their own reports to the crc Cttee.

The cerd Cttee received six alternative reports from ngos in relation to Spain’s twenty-first to twenty-third periodic reports³⁸ and four with respect to the eighteenth to twentieth periodic reports.³⁹ Coalitions of ngos submitted alternative reports to the HRCtte and the crc, ced, cescr and cedaw Cttees.

Both the Spanish Committee of Representatives of Persons with Disabilities (cermi) and Defensor del Pueblo (national human rights institution with UN status A) have been formally appointed in 2011 as national independent monitoring mechanisms in accordance with article 33 of the Convention on the Rights of Persons with Disabilities (crpd).⁴⁰

4.1.6 Domestic Implementation Mechanisms

Concluding Observations are posted on the official website of the Ministry of Justice. They are summarised by some media and are not translated into local languages. A few ngo websites offer cos and, more rarely, general comments or recommendations adopted by committees.⁴¹ The Human Rights Office of the Ministry of Foreign Affairs is also responsible for following up and monitoring the implementation of the committees’ recommendations. However, outputs are not shared with ngos. In 2012 the National Plan on Human Rights dealing with the implementation of cos was discontinued.

No reprisals against human rights defenders engaging in the reporting process have been reported. However, in individual cases victims and their lawyers were slandered in the media.⁴²

4.1.7 Treaty Body Membership

There is no national process for nomination of treaty body members. The following seven committees had or have Spanish members: the crc Cttee;⁴³ the cescr Cttee;⁴⁴ the cedaw Cttee;⁴⁵ the cat Cttee;⁴⁶ the ced Cttee;⁴⁷ the cerd Cttee;⁴⁸ and the spt.⁴⁹ Most of these members are officials from different ministries or university professors. Their activities are rarely reported in domestic media.

4.2.1 Incorporation and Reliance by Legislature and Executive

In accordance with article 96(1) of the 1978 Constitution and article 23 of Act 25 of 2014, on treaties and other international agreements, treaties ratified by Spain, once published in the official gazette, form part of the Spanish legal system and are directly applicable by the executive and the judiciary. In addition, article 10(2) of the Constitution provides that fundamental rights and freedoms recognised by the Constitution will be interpreted in accordance with the Universal Declaration of Human Rights and international treaties and agreements on the same matters ratified by Spain. Nevertheless, comprehensive definitions of criminal offences (for instance, torture⁵⁰ and enforced disappearances) included in international treaties have to be adopted first through amendments to the domestic Criminal Code to be directly applicable by Spanish courts.

In addition, article 53(3) of the Constitution states that economic, social and cultural rights, with the exception of the right to education, are considered principles inspiring the economic and social policy. Therefore, they would require further legislative development to enable them to be protected by the judiciary.

Based on recommendations by treaty bodies, Spain revised some domestic legislation to comply with international treaties. Upon adoption of the HRCttee’s views of 20 July 2000, Organic Act 19 of 2003 introduced the principle that would allow the establishment of appeal proceedings in high courts ensuring that all convictions and judgments can be reviewed in a second instance to comply with article 14(5) of ccpr. Similarly, in 2015 the Spanish Criminal Code was revised with a view to better tackling hate crimes,⁵¹ and legislation was enacted to strengthen support for victims of crime, including racially-motivated acts.⁵²

Following the recommendations made by the crc Cttee in 2002, Spain modified article 154 of the Civil Code to delete the provision stipulating that parents could reasonably and moderately discipline their children.⁵³ However, in 2002 crc Cttee reiterated its previous recommendation that Spain appropriately integrate the general principles of crc, namely, articles 2, 3, 6 and 12, in all relevant legislation concerning children. It further recommended the approval of an integral law on violence against children.⁵⁴ In 2018 the crc Cttee welcomed new legislative amendments introduced by Act 26 of 2015 on the modification of the system for the protection of children and adolescents.⁵⁵ However, it recommended the adoption of additional extensions to the statute of limitations in child sexual abuse cases, and to ensure the alignment of regional legislation with national legal frameworks related to children’s rights. In 2010 it also recommended the development of systematic educational programmes on the principles and provisions of crc for the general public, children, families and professionals working with children, including judges, lawyers, law enforcement officials, teachers, health personnel and social workers.

Spain enacted Act 26 of 2011, on normative adaptation to crpd to ensure appropriate harmonisation of domestic legislation with the treaty. By Legislative Royal Decree 1 of 2013, the Consolidated Text of the General Act on the Rights of Persons with Disabilities was approved. However, in March 2019 the crpd Cttee found the text not in compliance with the human rights model of disability.⁵⁶ The crpd Cttee commended Spain for taking steps to guarantee the right to vote of all persons with disabilities on an equal basis with others. Spain adopted many laws and regulations, as well as policies and practical measures in implementing crpd. However, major challenges persist in key areas of crpd such as the full recognition of legal capacity of persons with disabilities; the right to inclusive education; accessibility; and the right of persons with disabilities to live independently and being included in the community. Official budgets were either insufficient or not allocated in line with crpd. Women with disabilities continue to experience intersectional discrimination based on disability, gender and other statuses limiting their advancement, development and empowerment as actors of change. More needs to be done in the key area of raising awareness of crpd and the human rights model of disability, as the medical model of disability continues to be largely entrenched in society, and contributes to perpetuate negative stereotyping, prejudices and stigma against persons with intellectual, psychosocial and multiple disabilities.⁵⁷ In 2019 the crpd Cttee lamented the lack of training for professionals in fields such as education and health and the judiciary to raise awareness about the rights of persons with disabilities. It also regretted the overall lack of awareness about the provisions of crpd among lawyers, court staff, judges, prosecutors and law enforcement officials.⁵⁸

The Constitution recognises the principle of equality as one of the highest values of the legal system (article 1(1)) and elevates it to a fundamental right (article 14). Pursuant to article 53, the principle of equality is also binding on all public authorities and enjoys the protection of the courts. However, article 13(1) of the Constitution provides that ‘foreigners in Spain shall enjoy the public freedoms guaranteed in this title under the terms established by treaties and the law’. Unfortunately, the 2000 Aliens Act sets forth two categories of rights and freedoms for foreigners in Spain.⁵⁹

4.2.2 Reliance by Judiciary

In many of the judicial proceedings quoting cerd the participation of ngos, through private prosecutions or the public right of action, has been fundamental.

References to ccpr were found in 238 judgments and 68 court orders by the Constitutional Court. In 2006 it reiterated the important hermeneutical function that the international human rights treaties ratified by Spain have to determine the content of fundamental rights, having expressly stated that the content of human rights recognised in ccpr is also part of fundamental rights, ‘forming the minimum and basic standard of fundamental rights of every person in the Spanish legal system’.

In 2012 the Plenary of the Constitutional Court warned about the need to build the legal culture of rights, not only from the systematic and literal interpretation of legal texts, but also taking into account the international treaties, the jurisprudence of the international bodies that interpret them, and the opinions and views elaborated by the competent organs of the UN system.⁶⁰ However, in 2018 the Constitutional Court regarded as constitutional the Organic Act 1 of 2014, which had drastically reduced the application of the universal jurisdiction principle in Spain.⁶¹

References to the International Convention on Economic, Social and Cultural Rights (cescr) were only found in 12 judgments of the Constitutional Court.⁶² In 2012 the cescr Cttee recommended to Spain to ensure that the provisions of cescr are fully justiciable and applicable by domestic courts; to carry out awareness-raising campaigns for rights holders on the justiciability of economic, social and cultural rights; and to provide training to the actors responsible for the implementation of cescr (especially judges, lawyers, law enforcement officials, members of Parliament and others).⁶³ cat, cedaw and crc are regularly invoked in judgments by domestic courts, strictly for interpretative purposes. The reception of crpd by domestic tribunals is diverse, from both a qualitative and a quantitative point of view. It is not always referenced in domestic judgments and the interpretation of crpd by domestic courts is not always in line with the human rights model of disability enshrined in both crpd and general comments of the crpd Cttee.⁶⁴

4.2.3 Impact on and through Non-state Actors and Independent State Institutions

Publications of human rights ngos and basic textbooks on law generally cite human rights treaties. There is a remarkable research production by university academics about ccpr, cescr, cat, cedaw, crc and ops.⁶⁵

The participation of ngos in the examination of periodic reports has increased significantly between 2015 and 2018, reaching 13 before the HRCttee, 15 before the cescr Cttee and seven before the cat Cttee.

For the last two reports on cescr, the National Ombudsman (Defensor del Pueblo) also contributed his own reports as the national human rights institution recognised by the UN.

cermi has since 2008 published annual reports on disability and human rights. In 2011 the Ombudsman (Defensor del Pueblo) published a national report on human rights and disability.⁶⁶ The annual reports of the Ombudsman also include chapters on the implementation of the rights of persons with disabilities. cermi acknowledges that different awareness-raising measures have been adopted, but they lack systematic and structural dimensions.⁶⁷ Priority actors, which require systematic attention, are the national and regional parliaments, public administrations and judges. cermi’s 2013 annual report reproduces the recommendations of the crpd Cttee and describes the measures adopted by Spain in implementing these.⁶⁸

4.2.4 Impact of State Reporting

Most of the recommendations contained in the cos adopted by treaty bodies remain unimplemented. As they are considered by Spain to be not binding, there is no effective national follow-up mechanism to ensure their appropriate implementation. International mechanisms to follow up are also weak. The sporadic replies by Spain are insufficient since they do not meet the required criteria established by the treaty bodies. This situation generates frustration among victims of human rights violations and other stakeholders that discontinue their cooperation with treaty bodies. Only a limited number of ngos are aware of the relevance of the recommendations and continue their advocacy in an attempt to persuade both the executive and the legislative to take urgent action on unattended recommendations. As an example, in 2015 the HRCttee selected three issues to follow up, requesting Spain to report within one year on the implementation of recommendations dealing with ill-treatment and excessive use of force by the police, past human rights violations and unaccompanied minors. Spain replied on 21 July 2016.⁶⁹ One ngo submitted its follow-up report on 22 May 2017.⁷⁰ On 18 April 2018 the Special Rapporteur on follow-up, having assessed a lack of substantive progress, transmitted the HRCttee’s decision to discontinue the procedure.⁷¹

4.2.5 Impact of Individual Communications⁷²

Up to 30 June 2019, six treaty bodies out of eight adopted a total of 37 views on Spain finding violations of conventional norms, as follows: HRCttee (26); cescr Cttee (2); cedaw Cttee (1); cat Cttee (3); crc Cttee (4); and crpd Cttee (1).

The prevailing position of Spain has been that the recommendations emanating from views where committees found violations of the respective treaties are not binding, since the committees are not courts and their decisions are mere opinions and not judgments.⁷³ Furthermore, there has for a long time been no mechanism in the Spanish legal order by which the victims of violations declared by international bodies can seek reparation. Spain also maintained that the respective treaties do not include the obligation of state parties to establish such mechanisms. As this rigid and very conservative position has over the years become problematic, particularly with respect to the judgments of the echr, an amendment to the Organic Act of the Judiciary was adopted in 2015.⁷⁴ According to its article 5bis, victims of violations found in judgments of the echr can file a review appeal before the Supreme Court in order to seek reparation. Unfortunately, views of the untbs were left out of the scope of this new provision, with the result that victims continue to be confronted with the refusal by the government and domestic courts to take measures of reparation. Consequently, the vast majority of views remain unimplemented.

This situation may evolve in the right direction following the unexpected Supreme Court judgment of 17 July 2018⁷⁵ in connection with the reparations ordered by the cedaw Cttee in the case of Ángela González Carreño.⁷⁶ While acknowledging that article 5bis of the Act of the Judiciary does not apply to decisions by the UN treaty bodies, the Court declared that the state had the obligation to comply with the views emanating from cedaw and its op, since it voluntarily acknowledged the competence of the cedaw Cttee to examine individual complaints. Furthermore, cedaw was part of the Spanish legal system, as set up in articles 96 and 10(2) of the Constitution. The Court also indicated that the views are the result of a legal procedure conducted by the cedaw Cttee with full participation of Spain and voluntarily entered into by Spain.⁷⁷ Accordingly, such views are part of the Spanish legal system and have the supra-legal value provided to them by articles 95 and 96 of the Constitution. This strong judgment by the Supreme Court sets a precedent that will be difficult to ignore. It paves the way for a more significant impact of the treaties and the untbs’ decisions not only in the lives of human rights victims, but also in the Spanish legal system as a whole. As proposed by some academics, the legislative should again revise article 5bis of the Organic Act of the Judiciary to include decisions by both the UN committees and the UN Working Group on Arbitrary Detention along with judgments of the ECtHR.⁷⁸

4.2.6 Impact of Other Measures: Inquiry by crpd Cttee and Visit by spt

The crpd Cttee carried out an inquiry in Spain in 2017 regarding systematic violations of article 24 crpd (right to education).⁷⁹ It found violations of the right to an inclusive and quality education related primarily to certain features of the education system that have been maintained despite reforms and that continue to exclude persons with disabilities – particularly those with intellectual or psychosocial disabilities or multiple disabilities – from mainstream education on the basis of assessments conducted according to the medical model of disability. In 2018 Spain rejected the crdp Cttee’s findings arguing that the report did not reflect the real situation in the country.⁸⁰ In 2019 the crpd Cttee remained concerned about the limited progress made by Spain with regard to inclusive education, including the lack of a clear policy and action plan for the promotion of inclusive education, and called upon Spain to implement all the recommendations contained in its inquiry report.⁸¹

The spt visited Spain from 15 to 26 October 2017. It addressed one report to the state and one to the national preventive mechanism. Spain also replied in 2018.⁸² Against ngo opinion,⁸³ the national preventive mechanism was established in 2009 as part of the National Ombudsman’s mandate. It is composed of a unit within the organisational structure of the Office of the Ombudsman created to that effect and an advisory board of independent experts. The spt reported that the budget allocated to the national preventive mechanism is included, without differentiation, in the overall budget of the Office of the Ombudsman, which makes it difficult for the national preventive mechanism to effectively fulfil its mandate. The mechanism does not have a sufficiently large team of professionals to perform its mandate on a national scale. Furthermore, it does not adequately engage in constructive dialogue with senior authorities with a view to effectively monitoring the implementation of its recommendations. Finally, it should increase its interaction with civil society and the offices of the ombudsman of the autonomous communities (regions).⁸⁴

4.2.7 Additional

The treaty body system is complemented by Charter-based hrc special procedures. Among them, 11 thematic special procedures paid relevant visits to Spain between 2003 and 2019,⁸⁵ producing many recommendations – still unimplemented – that reinforce recommendations adopted by treaty bodies addressing inter alia incommunicado detention, the 1977 Amnesty Act and the human rights of migrants.

5.1.1 Incorporation and Reliance by Legislature and Executive

Article 1(1) of the 1978 Constitution recognised the principle of equality as one of the highest values of the legal system and elevated it to a fundamental right (article 14).⁸⁹ Pursuant to article 53(2), this principle is also binding on all public authorities and enjoys the protection of the courts.⁹⁰ In addition, the Constitution requests public authorities to remove any obstacles that prevent or hinder the full enjoyment of freedom and equality of individuals and the groups to which they belong and reminds them of their obligation to facilitate participation of all citizens in political, economic, cultural and social life (article 9). Article 13(1) of the Constitution provides that ‘foreigners in Spain shall enjoy the public freedoms guaranteed in this title under the terms established by treaties and the law’. Accordingly, pursuant to article 3(1) of the Aliens Act,⁹¹ foreigners in Spain enjoy the rights and freedoms recognised in Title I of the Constitution under the terms established in international treaties, in this Act and in laws regulating the exercise of such rights and freedoms.⁹²

In 2015 the Spanish Criminal Code was revised with a view to better tackling hate crimes,⁹³ and legislation was enacted to strengthen support for victims of crime, including racially-motivated acts.⁹⁴ The Comprehensive Strategy against Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance, adopted in 2011, is currently the main instrument for action in this sphere and implementing Spain’s obligations under various international human rights treaties. The Strategy also provides a framework for institutional cooperation and coordination and for collaboration with civil society.⁹⁵ The Council for the Elimination of Racial and Ethnic Discrimination,⁹⁶ which was created in 2003, includes among its functions to provide independent assistance to victims of direct or indirect discrimination on racial or ethnic origin when it processes their claims.⁹⁷ Another measure worth mentioning is the appointment of special prosecutors on hate crime.⁹⁸

5.1.2 Reliance by Judiciary

A detailed listing of recent judicial decisions relating to the provisions of articles 1 to 7 of cerd can be found in the twenty-first to twenty-third periodic reports of Spain.⁹⁹ In many of these judicial proceedings the participation of ngos, through private prosecutions or the public right of action, has been fundamental.¹⁰⁰

5.1.3 Impact on and through Non-state Actors

Human rights ngos generally cite cerd in their publications and other outputs and follow the work of the cerd Cttee. They submit shadow reports, follow the examination of periodic reports, contest inaccurate and/or misleading statements by the government, and send information to the media and social media.¹⁰¹

5.1.4 Impact of State Reporting

The cerd Cttee considered the sixteenth and seventeenth,¹⁰² eighteenth to twentieth¹⁰³ and twenty-first to twenty-third¹⁰⁴ periodic reports of Spain at its sixty-fourth (February-March 2004), seventy-eighth (February-March 2011) and eighty-ninth (April-May 2016) sessions, respectively.¹⁰⁵ On average, the state party’s reports under article 9 of cerd were submitted 20 months late.¹⁰⁶ The preparation of the twenty-first to twenty-third periodic reports was coordinated by the Human Rights Office of the Ministry of Foreign Affairs and Cooperation, with the support of the Racism and Xenophobia Monitoring Centre,¹⁰⁷ which is also responsible for following up and monitoring the implementation of the cerd Cttee’s recommendations.¹⁰⁸ Consultations were also held with ngos specialising in this field.¹⁰⁹

In its 2011 cos the cerd Cttee welcomed the contribution made by the Ombudsman Institution (Defensor del Pueblo).¹¹⁰ However, the national human rights institution did not submit a public alternative report in relation to Spain’s twenty-first to twenty-third periodic reports in 2016. In its 2004 cos, the cerd Cttee acknowledged that the sixteenth and seventeenth periodic reports of Spain had addressed many of the concerns and recommendations included in its previous cos.¹¹¹ Nevertheless, in 2014 the cerd Cttee again noted that the periodic reports of Spain did not contain recent, reliable data on economic and social indicators that could be used, in particular, to compare the status of minorities and immigrants with that of the general population.¹¹²

Six alternative reports were submitted to the cerd Cttee in relation to Spain’s twenty-first to twenty-third periodic reports¹¹³ and four with respect to the eighteenth to twentieth periodic reports.¹¹⁴ In its 2011 cos the cerd Cttee welcomed the active engagement and contributions from ngos.¹¹⁵ In 2004 the cerd Cttee welcomed the attendance of a large delegation,¹¹⁶ while in 2011 it appreciated that Spain had sent a high-level delegation.¹¹⁷

There have been no communications sent to the government by the Committee’s Focal Point for Reprisals.¹¹⁸

During the period under review, identity checks and police raids carried out on the basis of ethnic and racial profiling were a recurrent cause for concern.¹¹⁹ The cerd Cttee expressed grave concern over the practice of the Spanish security forces of summarily returning irregular migrants and potential asylum seekers to Morocco from the cities of Ceuta and Melilla, thereby depriving them of access to the asylum procedure.¹²⁰ In this connection, the cerd Cttee was concerned about reports of ill-treatment perpetrated during deportation operations by both Spanish and Moroccan officials operating on Spanish soil.¹²¹ The cerd Cttee expressed concern over the persistent difficulties in finding employment, housing and access to education faced by the Gypsy/Roma population in the country;¹²² the healthcare restrictions imposed on irregular migrants;¹²³ the poor conditions of detention and services in migrant detention centres;¹²⁴ and the lack of independence and adequate resources of the Council for the Elimination of Racial and Ethnic Discrimination.¹²⁵

In 2016 the cerd Cttee requested Spain to provide, within one year, information on the implementation of the recommendations in paragraphs 12 (reinstatement of universal public health care) and 28 (measures against identity checks based on racial and ethnic profiling) of the cos.¹²⁶ On 7 November 2017 Spain submitted its follow-up replies.¹²⁷ Subsequently, in a letter dated 17 May 2018, the cerd Cttee’s Chairperson expressed appreciation for the information provided concerning Decree Law 16/2012 and the extent to which it and other laws allow undocumented individuals to access public health services, although it requested Spain to provide further information on the practical application of these laws.¹²⁸

In 2016 the cerd Cttee commended Spain for the publication of a training handbook to assist members of the security forces in recognising and documenting racist and xenophobic incidents.¹²⁹ Recently, various public information and awareness-raising actions have been launched aimed at increasing knowledge in this area and promoting the training of key actors.¹³⁰

During the period under review, the cerd Cttee’s consideration of periodic reports generated significant media coverage.¹³¹ Spanish media has also reported about the submission of complaints to the cerd Cttee under article 14 of cerd.¹³²

5.1.5 Impact of Individual Communications

There have been no views adopted by the cerd Cttee on alleged violations of cerd.

5.2.2 Reliance by Judiciary

In several judgments of Provincial Courts and Superior Courts of Justice (regional), the application of different provisions of ccpr was considered. However, the reference to ccpr has greater relevance in the decisions of the Constitutional Court. The search for decisions in which the Court mentions ccpr reached 238 judgments and 68 court orders.¹⁴¹ Among others, a judgment of 2006 is particularly relevant, since the Court reiterated the important hermeneutical function that the international human rights treaties ratified by Spain have to determine the content of fundamental rights, having expressly stated that the content of human rights recognised in the Covenant is also part of fundamental rights, ‘forming the minimum and basic standard of fundamental rights of every person in the Spanish legal system’. To this end, the Court emphasised that this interpretation of the constitutional norms on human rights ‘cannot do without what, in turn, guarantee bodies established by those same international treaties and agreements’.¹⁴²

In 2012 the Plenary of the Constitutional Court warned about the need to build the legal culture of rights taking into account the international activity of states manifested in the international treaties, the jurisprudence of the international bodies that interpret them, and the views by the competent organs of the UN system.¹⁴³

5.2.3 Impact on and through Non-state Actors and Independent State Institutions

In its fifth periodic report, Spain informed that ccpr is widely disseminated, as evidenced by the constant references made to it by the courts. Since it has been incorporated into national legislation, ccpr is included in all basic textbooks on law, together with other treaties on fundamental rights and freedoms ratified by Spain.¹⁴⁴ However, judicial references to ccpr should be accompanied by the interpretation provided by the HRCttee, which is exceptional. In 2015 the HRCttee included in the list of issues related to the sixth periodic report of Spain a question on the dissemination of information on ccpr and its op, as well as detailed information on the participation of civil society, ngos and the national human rights institution in the preparation of the report.¹⁴⁵ Spain replied that ccpr and its ops, along with the HRCttee’s activities, are covered in training and outreach activities undertaken by the Human Rights Office of the Ministry of Foreign Affairs and Cooperation. In addition, the periodic report was shared with the Ombudsperson and with a wide spectrum of a highly-representative sample of civil society organisations. It was also presented for information to the Foreign Affairs Committee of the Congress of Deputies.¹⁴⁶ There is an increasing number of studies by university scholars on ccpr and the ops, and the practice of the HRCttee, demonstrating a greater understanding of ccpr than in the past.¹⁴⁷ Some ngos are especially active in the promotion and defence of the rights recognised in ccpr.¹⁴⁸

5.2.4 Impact of State Reporting

The HRCttee considered the fifth¹⁴⁹ and sixth¹⁵⁰ periodic reports of Spain during its 94th (13–31 October 2008) and 114th sessions (29 June-24 July 2015), respectively. Since 2008, the participation of ngos in the examination of periodic reports has increased significantly: Thirteen and 11 ngos contributed to the respective reports.

The Spanish delegation attending the review of the fifth periodic report (2008) was composed of representatives of the Permanent Mission in Geneva and representatives of the Ministries of Foreign Affairs and Cooperation, Interior and Justice.¹⁵¹ The Spanish representation was much broader and more representative when the sixth periodic report (2015) was examined, since four representatives of the Permanent Mission were part of the Spanish delegation, as well as representatives of the Office of the Attorney-General of the state (2); Ministries of Foreign Affairs and Cooperation (1); Justice (29); Interior (4); Education, Culture and Sports (2); Employment and Social Security (2); and Health, Social Services and Equality (4).¹⁵²

5.2.5 Issues of Concern and Recommendations

In 2015 the HRCttee recommended to Spain to adopt the second human rights plan; to provide the Council for the Elimination of Racial and Ethnic Discrimination with resources and independence; to eliminate the use of ethnic profiling by the police; to ensure equal treatment for everyone in its territory or under its jurisdiction; to ensure that immigrants, foreigners and ethnic minorities do not suffer discrimination in access to housing, employment, education, equal pay and health care; to obtain the free and informed consent of persons with disabilities whenever sterilisation is practised; to increase participation by women in the public and private sectors and to reduce the wage gap; to combat violence against women and young girls; to prevent and eliminate torture and ill-treatment providing more human rights training for law enforcement officials; to establish independent complaint bodies to address claims of ill-treatment by the police; to ensure that all complaints of torture and ill-treatment are investigated promptly, thoroughly and independently and that victims receive appropriate reparation and rehabilitation; to prohibit the granting of pardons to persons found guilty of torture; and to ensure the recording of interrogations of all persons deprived of liberty in places of detention.

In addition, the HRCttee recommended to Spain to avoid the detention of asylum seekers; to ensure that the detention of foreigners is resorted to for the shortest period possible, only where existing alternatives have been considered inappropriate; to put an end to incommunicado detention and to guarantee the rights of all detainees to medical services and to freely choose and consult (in complete confidentiality) a lawyer, who can be present at interrogations; to repeal or amend the 1977 Amnesty Act; to encourage investigations into all past human rights violations; to investigate allegations of trafficking in persons; to determine the age of unaccompanied children; to ensure that in accordance with the principle of the best interests of the child, this is given due consideration in all decisions concerning unaccompanied children; to ensure that the Code of Criminal Procedure meets full compliance with article 14 of ccpr; and to ensure that all individuals fully enjoy their rights to freedom of expression, association and peaceful assembly in accordance with General Comment 34.¹⁵³

The follow-up mechanism was discontinued by the HRCttee in 2018 having assessed a lack of substantive progress.¹⁵⁴

5.2.6 Impact of Individual Communications¹⁵⁵

The HRCttee adopted 26 views in which it found violations of various provisions of ccpr. Spain generally cooperated with the procedure by providing the Committee with comments to the allegations formulated by the complainant.¹⁵⁶ The vast majority of complaints were submitted by individual lawyers not linked to a specific ngo.

Fourteen out of the 26 views in which the HRCttee found violations of ccpr concern the right of everyone convicted of a crime to have the conviction and sentence being reviewed by a higher tribunal (article 14(5) ccpr). Communication 701/1996 (Gómez Vázquez v Spain)¹⁵⁷ was the first case in which the HRCttee found that the review in second instance of the complainant’s conviction and judgment, carried out by the Supreme Court through a cassation appeal, did not comply with the requirements of ccpr, as such review had been limited to the formal or legal aspects of the conviction and, according to the domestic law, the evidence had to be evaluated exclusively by the first instance court. Accordingly, the HRCttee stated that the complainant’s conviction had to be reviewed in accordance with article 14(5) of ccpr.

In its response Spain on several occasions has maintained that, following the HRCttee’s position on the matter, the jurisprudence of the Supreme Court had enlarged the scope of the cassation appeal to comply with the provisions of ccpr. Spain also argued that the right to an appeal may also be interpreted as the right to a review of the lawfulness of a lower court’s ruling, but not necessarily a review of the whole trial, in accordance with ccpr and the jurisprudence of echr.

As the HRCttee continued to reiterate its position in subsequent views, Organic Act 19 of 2003 introduced the principle that would allow the establishment of appeal proceedings in high courts ensuring that all convictions and judgments can be reviewed in a second instance.¹⁵⁸

While this system does not seem to be operational, the HRCttee observed an evolution in the practice and jurisprudence of the Supreme Court when deciding cassation appeals in criminal cases in the sense that the Court would not only consider formal aspects regarding the application of the law by the lower court, but would also carry out some examination of the facts and evidence on the basis of which the conviction was established. In many of the cases decided by the HRCttee this was considered to be sufficient in order to satisfy the requirements of article 14(5) of ccpr.¹⁵⁹ While the new approach has contributed to a better protection of the right enshrined in this provision, the HRCttee’s requests in 14 complaints that the conviction and judgment should be reviewed remain unimplemented, and those victims who initiated domestic proceedings seeking such review did not find satisfaction.¹⁶⁰

No measures of reparation were taken in other types of communications. For instance, in Communication 1473/2006 (Morales Tornel) of 20 March 2009, where the HRCttee found a violation of article 17(1) of ccpr in connection with the refusal of prison authorities to facilitate contacts between a sick prisoner and his family and requested to grant compensation, after several exchanges the HRCttee decided to suspend the follow-up dialogue, with a finding of unsatisfactory implementation of the recommendation.¹⁶¹

Communication 1493/2006 (Williams Lecraft),¹⁶² where the HRCttee found a violation of article 26 of ccpr for discrimination on the basis of racial profiling, up to now is the only case where the HRCttee considered that the response provided by Spain was satisfactory and decided to close the follow-up procedure. Spain informed the HRCttee that the text of the views had been included in the information bulletin of the Ministry of Justice and had been sent to all main judicial bodies and organs related to them, including the General Council of the Judiciary, the Constitutional Court, the Supreme Court, the General Attorney’s Office and the Ministry of Interior. Furthermore, the Minister of Foreign Affairs and other high officials at his Ministry had met with Ms Williams Lecraft and offered to her apologies for the acts of which she was a victim. She had also received oral and written apologies from the Deputy Interior Minister for Security Affairs.¹⁶³

5.3.1 Incorporation and Reliance by Legislature and Executive

In accordance with articles 96(1) of the Constitution and 23 of the Law 25/2014, on Treaties and other International Agreements, cescr is part of the Spanish legal order, and is directly applicable.¹⁶⁶ However, the cescr Cttee is concerned that rights recognised in cescr continue to be viewed as nothing more than guiding principles for social and economic policy (with the exception of the right to education, which is one of the fundamental rights enshrined in the Constitution) and that, as a result, they can be invoked before the courts only after having been developed by domestic law or in connection with other rights that enjoy full protection, such as the right to life.¹⁶⁷

5.3.2 Reliance by Judiciary

Spain has reported that cescr has been invoked before domestic courts, both by the parties and by the judges themselves, as legal grounds for the defence and protection of the rights enshrined therein.¹⁶⁸ The impact of cescr in the jurisprudence of the Constitutional Court has been limited, since only 12 judgments refer to it.¹⁶⁹

In 2012 the cescr Cttee recommended that Spain take appropriate measures to ensure that the provisions of cescr are fully justiciable and applicable by domestic courts.¹⁷⁰ It also recommended to carry out awareness-raising campaigns for rights holders on the justiciability of economic, social and cultural rights and to provide training to the actors responsible for the implementation of cescr (especially judges, lawyers, law enforcement officials, members of Parliament and others) on the content of the rights recognised, including the Committee’s general comments concerning what those rights cover, and on the possibility of invoking cescr before the courts.¹⁷¹

Unfortunately, the Constitutional Court consolidated jurisprudence against the justiciability of economic, social and cultural rights was confirmed in 2019 in relation to the right to housing, maintaining that when article 11(1) cescr states the right of persons to a sufficient standard of living to ensure adequate housing, it is not recognising a subjective right; it is rather a mandate for state parties to adopt appropriate measures to promote public policies aimed at facilitating the access of all citizens to decent housing.¹⁷²

5.3.3 Impact on and through Non-state Actors

University researchers have studied and researched about cescr and its op and followed the practice of the cescr Cttee.¹⁷³ Some ngos are especially active in the promotion and defence of the rights recognised by cescr.¹⁷⁴ The coverage of the cescr Cttee’s work in the media is relatively important in recent times, as the media only addresses some economic, social and cultural rights, such as the right to food, housing and health.¹⁷⁵

5.3.4 Impact of State Reporting

The cescr Cttee considered the fourth,¹⁷⁶ fifth¹⁷⁷ and sixth¹⁷⁸ periodic reports of Spain during its thirty-second (26 April-14 May 2004); forty-eighth (30 April-18 May 2012) and sixty-third sessions (12–19 March 2018), respectively. The participation of ngos in the examination of periodic reports has increased notably in the fifth and sixth reports, receiving 15 non-governmental reports. The National Ombudsman (Defensor del Pueblo) also contributed to the review process with his own reports as the national human rights institution with UN status A.¹⁷⁹

5.3.5 Issues of Concern and Recommendations

In 2004 cescr Cttee referred to (i) the precarious situation of undocumented immigrants, which only enjoyed a limited protection of their economic, social and cultural rights and were victims of xenophobic incidents; (ii) the vulnerable situation of the Roma population especially with regard to employment, housing, health and education; (iii) the promotion of gender equality; (iv) the high level of unemployment and the precarious situation of the large number of persons employed under short-term temporary contracts and the high number of occupational accidents; (v) the vulnerable situation of domestic workers, unaccompanied migrant children arriving in Spain and the growing problem of homelessness; (vi) the rising number of fatal cases of domestic violence; (vii) the deteriorating conditions of housing; (viii) the high abortion rate among adolescent women; and (ix) the high rate of drug and alcohol abuse and tobacco smoking, particularly among young people.

In 2012 the cescr Cttee urged Spain to ensure the effective protection of economic, social and cultural rights of all persons residing within its territory, and to promote the regularisation of undocumented immigrants.¹⁸⁰

In 2018 the cescr Cttee recommended to Spain to (i) ensure that companies comply with their obligation to perform human rights with due diligence; (ii) address the disparities between the different autonomous communities (regions); (iii) address the impact of austerity measures on the effective enjoyment of economic, social and cultural rights; (iv) assess the fiscal policy to address the adverse effects of the growing social inequality; (v) ensure non-discrimination, including multiple discriminations and persistent de facto discrimination; (vi) address the gender stereotypes in society; (vii) address the wage gap between men and women; (viii) address the criminal prosecution of workers who have participated in strikes; (ix) address the deficit shown by the pension system; (x) address the high percentage of the population at risk of poverty and social exclusion; (xi) address the social housing deficit and evictions; and (xii) address the difficulties experienced by migrants, asylum seekers and refugees with regard to the enjoyment of their economic, social and cultural rights.¹⁸¹

As a follow-up, the cescr Cttee requested Spain to provide information within 18 months on the action taken to give effect to the recommendations referred to austerity measures, evictions and right to health.¹⁸²

5.3.6 Impact of Individual Communications¹⁸³

By 2019, the cescr Cttee had received around 75 complaints against Spain, out of which only two had by 30 June 2019 been concluded with findings of violations. Most of the cases did not pass the test of admissibility or a friendly settlement was reached. Compared to other state parties to the op-cescr, the number of cases submitted against Spain has been particularly high,¹⁸⁴ revealing a real interest of Spanish civil society in this rather new procedure. Spain generally cooperates with the formal procedure by formulating observations to the complainants’ allegations.¹⁸⁵

In Communication 5/2015 (Djazia and Bellili v Spain) the cescr Cttee found violations of the complainants’ rights under article 11(1) of cescr.¹⁸⁶ The issue raised was whether the complainants’ eviction from their rental accommodation by court order on grounds that their contract had ended, and the authorities’ failure to grant alternative housing constituted a violation of the right to adequate housing, taking into account the fact that the complainants were left homeless. The cescr Cttee considered the arguments provided by Spain insufficient to demonstrate that it had made all possible effort, using all available resources, to realise, as a matter of urgency, the right to housing of persons who, like the complainants, were in a situation of dire need. As reparation the cescr Cttee requested that the complainants be provided, among others, with an effective remedy and compensation.

In Communication 2/2014 (idg v Spain)¹⁸⁷ the complainant claimed shortcomings in the manner in which she had been notified of mortgage enforcement proceedings, which had resulted in lack of protection by courts of her right to housing. The cescr Cttee examined the system of notification used by the court and concluded that Spain had not shown that the court had exhausted all available means to serve notice in person and that the irregularities in the notice procedure revealed a violation of article 11(1) of cescr. As for remedies, the cescr Cttee held that Spain had an obligation to ensure that the auction of the author’s property did not proceed unless she had due procedural protection and due process.

At the time of writing, these cases were still under the follow-up procedure. Accordingly, the cescr Cttee had not yet taken a position on whether Spain had implemented the measures of reparation requested.

5.4.1 Incorporation and Reliance by Legislature and Executive

cedaw and its op are part of the Spanish legal order pursuant to articles 96(1) of the Constitution, 1(5) of the Civil Code and 23 of Act 25 of 2014, on Treaties and other International Agreements. Therefore, they are directly applicable. Upon ratification, Spain entered a reservation, indicating that it shall not affect constitutional provisions concerning succession to the Spanish crown (preference being given to male heirs).

In its cos of the fifth periodic report of Spain, the cedaw Cttee expressed concern that no specific definition of discrimination against women in line with article 1 of cedaw had been included in domestic legislation.¹⁹⁰ Subsequently, on the occasion of the sixth periodic report of Spain, the cedaw Cttee noted that Organic Act 3 of 2007 on effective equality for men and women included a definition of discrimination against women in line with cedaw. In addition, Organic Act 1 of 2004 on integral protection measures against gender violence, and Act 33 of 2006 on the equality of men and women in the order of succession to titles of nobility, were based on cedaw.¹⁹¹

Spain also adopted Act 4 of 2015 on the legal status of the victims of crime; Organic Act 1 of 2015 amending the Criminal Code with regard to violence against women; Act 12 of 2009 on asylum and subsidiary protection, which implemented EU directives on asylum and explicitly recognised gender-based persecution of women as grounds for refugee recognition. Moreover, Spain adopted a National Strategy for the Eradication of Violence against Women (2013–2016); the Strategic Plan on Equal Opportunities (2014–2016); and the Action Plan for Equality between Women and Men in the Information Society (2014–2017).

In 2015, however, the cedaw Cttee requested Spain to revise its legislation on violence against women to include other forms of gender-based violence, such as violence by care providers, police violence and violence in public spaces, workplaces and schools.¹⁹²

In its fifth periodic report, Spain pointed out that it adopted policies in compliance with its obligations under cedaw such as the fourth Plan of Action for Equal Opportunities, the Second Comprehensive Plan against Domestic Violence, the Optima Program for Women in Business and annual Plans of Action for Employment, the Social Inclusion Plan and the Comprehensive Family Support Plan, all of which include a gender dimension.¹⁹³

Yet, in 2015 the cedaw Cttee noted with concern that restructuring of the Spanish national machinery for the advancement of women had affected the ability of Spain to ensure the development and effective implementation of gender policies. It further noted the absence of a consistent strategy on gender equality at the national level and insufficient institutionalised and systematic coordination between the autonomous communities (regions) and the central administration.¹⁹⁴ While noting the adoption of a framework protocol for the protection of victims of trafficking in human beings, the cedaw Cttee was concerned about the prevalence of the trafficking of women and girls to Spain and the absence of comprehensive anti-trafficking legislation, as well as the failure of Spain to criminalise all forms of trafficking. It further expressed concern about the limited definition of pimping, which could impede the adequate prosecution of the exploitation of prostitution.¹⁹⁵

5.4.2 Reliance by Judiciary

In 2015 concerns were raised noting that women themselves, especially women in rural areas and migrant women, were unaware of their rights under cedaw and thus lacked the information necessary to claim such rights.¹⁹⁶ The cedaw Cttee requested Spain to provide mandatory training for judges, prosecutors, police officers and other law enforcement officials on cedaw and its op,¹⁹⁷ and to increase women’s awareness of and access to education, health and social services, training and employment, as well as to familiarise them with their rights to gender equality and non-discrimination.¹⁹⁸ In a landmark judgment of 17 July 2018¹⁹⁹ the Supreme Court acknowledged that cedaw and its op are part of domestic law. Therefore, the cedaw Cttee’s views are obligatory for Spain.

5.4.3 Impact on and through Non-state Actors

Human rights ngos, as well as other civil society organisations, generally refer to cedaw in their legal and advocacy activities.²⁰⁰ The cedaw Cttee’s consideration of periodic and follow-up reports, as well as its views under op-cedaw, generated significant media coverage.²⁰¹

5.4.4 Impact of State Reporting

The cedaw Cttee considered the fifth,²⁰² sixth²⁰³ and combined seventh and eighth²⁰⁴ periodic reports of Spain at its thirty-first session (July 2004), forty-fourth session (July-August 2009) and sixty-first session (July 2015), respectively. The sixth periodic report was prepared under the leadership of the Women’s Institute, an autonomous agency operating under the Ministry of Labour and Social Affairs. It included information provided by other ministries and the autonomous communities. There was no specific information available on the process of preparation of the fifth and combined seventh and eighth periodic reports by Spain. In the examination of its combined seventh and eighth period report, the Spanish delegation was composed of the Permanent Representative in Geneva and representatives of the Office of the Public Prosecutor and six ministries. In the examination of its sixth report, the cedaw Cttee commended Spain for its large and high-level delegation, headed by the Minister of Equality, which included representatives of various ministries.²⁰⁵

5.4.5 Issues of Concern and Recommendations

Although the cedaw Cttee took note of the measures implemented and efforts made by Spain to comply with its obligations under cedaw, it raised some similar issues of concern that were recurrent in its three cos in relation to persistence of entrenched traditional attitudes and stereotypes concerning the roles and responsibilities of women and men in the family and in society, which were a root cause of violence against women and contributed to women’s disadvantaged position in a number of areas, including in the labour market and in decision-making positions.²⁰⁶

While welcoming Spain’s measures to combat and eliminate violence against women such as the adoption of Organic Act 1 of 2004 on integral protection measures against gender violence, the cedaw Cttee was concerned about the prevalence of violence against women, including sexual violence, and by the high percentage of women who had died as a result of a gender-based violence, particularly the alarming number of reported murders of women by current and former spouses or partners.²⁰⁷

In its cos with respect to the fifth period report, while commending Spain for its legal and other measures against trafficking, the cedaw Cttee remained concerned about increasing incidents of trafficking in women and girls,²⁰⁸ as well as the under-representation of women in senior positions in some areas of professional and public life, such as the judiciary and the foreign service.²⁰⁹ It was also concerned that Roma women remained in a vulnerable and marginalised situation, especially with regard to education, employment, housing and health.²¹⁰ It further noted the continuing high level of unemployment among women, the high number of women in part-time and temporary jobs as well as the wage discrimination faced by women.²¹¹

With regard to the sixth periodic report, the cedaw Cttee expressed concern by the continuing prevalence of trafficking in women and girls; exploitative prostitution;²¹² the participation of women in the labour market;²¹³ the high rates of unwanted pregnancies and voluntary interruptions of pregnancy; the increasing rates of hiv among women;²¹⁴ the relegation of women in rural areas to secondary roles and their difficulties to benefit fully and equally from legislative and policy framework for the promotion of gender equality;²¹⁵ and the situation of Roma women, women of ethnic and minority communities, migrant women and women with disabilities, who might be more vulnerable to poverty and violence and were at risk of multiple forms of discrimination with respect to education, health, employment and social and political participation.²¹⁶

On the occasion of the combined seventh and eight periodic report, the cedaw Cttee also expressed concerns about the prevalence of the trafficking of women and girls to Spain;²¹⁷ the low participation of women in political and public life;²¹⁸ the persistent gender wage gap and low representation of women in managerial and decision-making positions and on boards of directors;²¹⁹ the situation of migrant women, Roma women, older women and women with disabilities; and the disproportionate impact on women, particularly women with disabilities, older women and women domestic workers, by the austerity measures introduced in response to the economic and financial crisis.²²⁰

At its sixty-eighth session (November 2017) the cedaw Cttee examined the follow-up report of Spain²²¹ concerning its previous cos. It noted inter alia the measures and steps taken by Spain to amend its legislation on violence against women, for instance, to include other forms of gender-based violence against women, including in its Criminal Code. Yet it considered that such measures were insufficient to fully implement its recommendations, since some forms of gender-based violence, such as violence perpetrated by care providers, police violence and other violence in public spaces and workplaces, had not been addressed by Spain.²²²

5.4.6 Impact of Individual Communications²²³

Over the period under review, the cedaw Cttee has examined three complaints against Spain,²²⁴ out of which only one, Communication 47/2012 (Ángela González Carreño v Spain), ended with a finding of violation.²²⁵ The complainant claimed violations of cedaw in connection with the events leading to the killing of her minor daughter by the latter’s father, and the question before the cedaw Cttee concerned the responsibility of the state for not having fulfilled its duty of diligence in connection with the father’s visiting rights in a context of domestic violence. The cedaw Cttee noted that Spain

had adopted a broad model for dealing with domestic violence which included legislation, awareness-raising, education and capacity-building. However, in order for a woman victim of domestic violence to see the practical realisation of the principle of non-discrimination and substantive equality and enjoy her human rights and fundamental freedoms, the political will expressed by that model must have the support of public officials who respect the obligations of due diligence by the state party. These include the obligation to investigate the existence of failures, negligence or omissions on the part of public authorities which may have caused victims to be deprived of protection.²²⁶

In this case, that obligation had not been discharged and, as a result, Spain had infringed the rights of the complainant and her deceased daughter under articles 2(a)-(f), 5(a) and 16(1)(d) of cedaw. As a remedy, the cedaw Cttee requested Spain to grant the complainant appropriate reparation and comprehensive compensation commensurate with the seriousness of the infringement of her rights; and to conduct an exhaustive and impartial investigation to determine whether there had been failures in the state’s structures and practices that had caused the complainant and her daughter to be deprived of protection.²²⁷

Following the cedaw Cttee’s views, the complainant initiated administrative and judicial proceedings for the implementation of the recommendations. She failed to obtain satisfaction in first and second instance courts, until she finally reached the Supreme Court in cassation. In a landmark judgment of 17 July 2018,²²⁸ the Court acknowledged the infringement of the complainant’s rights and ordered the state to grant her €600 000 as reparation for moral damages.

5.5.1 Incorporation and Reliance by Legislature and Executive

cat forms part of the Spanish legal order, in accordance with article 96(1) of the Constitution,²³² and is directly applicable. Nevertheless, it should be noted that comprehensive definitions of criminal offences included in international instruments have to be adopted first through amendments to the domestic Criminal Code to be directly applicable by Spanish courts.²³³

5.5.2 Reliance by the Judiciary

cat is regularly invoked in judgments by domestic courts, strictly for interpretative purposes.²³⁴

5.5.3 Impact on and through Non-state Actors

Researchers and ngos generally cite cat in their publications and other outputs and follow the work of the cat Cttee at the examination of periodic reports, contesting inaccurate and/or misleading statements by government representatives, and sending information to the media and social media.²³⁵ Awareness by lawyers of the provisions of cat is focused among those whose areas of expertise include criminal law and international human rights law.²³⁶

5.5.4 Impact of State Reporting

The fourth,²³⁷ fifth²³⁸ and sixth²³⁹ periodic reports of Spain were considered during the cat Cttee’s twenty-eighth (11–22 November 2002), forty-third (2–20 November 2009) and fifty-fourth (20 April-15 May 2015) sessions, respectively. Spain submitted its fourth and sixth periodic reports with minor delays of less than two months, but its fifth periodic report was received more than three years after the due date.²⁴⁰ On 4 June 2019 Spain submitted its seventh periodic report²⁴¹ in response to the list of issues prior to reporting prepared under the simplified reporting procedure.²⁴²

The Human Rights Office within the Directorate-General for the United Nations and Human Rights at the Ministry of Foreign Affairs, European Union and Cooperation is the lead agency for coordinating reporting on human rights obligations. This unit prepares the draft reports incorporating inputs from relevant departments and ministries, and finalises them in consultation with some stakeholders. It is also responsible for following up and monitoring the implementation of treaty body recommendations.²⁴³

The Ombudsman Institution (Defensor del Pueblo), in its capacity as national mechanism for the prevention of torture, submitted alternatives reports to the cat Cttee for its consideration during the reviews of Spain’s fifth and sixth periodic reports in 2009 and 2015, respectively.²⁴⁴

In 2002 the cat Cttee observed that although Spain’s fourth periodic report contained abundant information on legislative developments, it provided little information on the implementation in practice of cat.²⁴⁵ In response to the subsequent cos, a database was established within the State Secretariat for Security to collect information on claims of torture or ill-treatment and deprivation of rights during police custody.²⁴⁶ This database was used to supply the detailed statistics contained in Spain’s sixth periodic report.²⁴⁷ Nevertheless, the cat Cttee has continued to lament the scarcity of available data.²⁴⁸

During the last cat Cttee review of Spain’s report in 2015, seven alternative reports were submitted by human rights ngos and other civil society actors.²⁴⁹ There had been nine ngo/cso submissions in relation to the previous periodic report.²⁵⁰

Despite the fact that in 2002 the cat Cttee appreciated Spain’s sending ‘a large and highly-qualified delegation’,²⁵¹ none of the delegations sent by Spain to the cat Cttee’s reviews since then included high-ranking officials.

There have been no communications sent to Spain by the cat Cttee’s Rapporteur on reprisals under article 19 of cat.²⁵²

The cat Cttee expressed serious concern at Spain’s failure to effectively investigate allegations of torture and ill-treatment committed during incommunicado detention, as well as instances of excessive use of force by the police, with particular reference to social protests and abuses carried out against immigrants by border officials.²⁵³ It recommended that Spain ensure the prosecution and punishment of perpetrators, noting with concern the fact that officials accused of these crimes seem to be given light sentences or are granted pardons.²⁵⁴ Concerns have also been raised about the insufficient emphasis placed on the prohibition of torture and the legitimate use of force in law-enforcement human rights training programmes.²⁵⁵ The difficulties faced by victims in obtaining reparation owing to the absence of proper investigation was an additional matter of concern.²⁵⁶

The cat Cttee repeatedly recommended that Spain review the incommunicado detention regime with a view to its abolition, and to ensure that all persons deprived of their liberty enjoy fundamental legal safeguards from the moment of their arrest.²⁵⁷ Spain was also urged to impose a total ban on prolonged solitary confinement.²⁵⁸

While the Spanish Criminal Code was amended in 2003 with the aim of explicitly including discrimination among the purposes for inflicting torture, in compliance with a former recommendation by the cat Cttee,²⁵⁹ cat members still considered that article 174 of the Criminal Code does not fully reflect the definition contained in article 1 cat.²⁶⁰ The cat Cttee also recommended that Spain ensure appropriate penalties for acts of torture²⁶¹ and that torture is never subjected to a statute of limitations.²⁶²

The 1977 Amnesty Act remains an issue of grave concern for cat experts.²⁶³ They urged Spain to take all necessary measures to ensure, in law and in practice, that crimes of torture, including enforced disappearances, are not subject to amnesty or a statute of limitations. They also noted with concern that extradition requests in respect of persons suspected of crimes of torture under the Franco regime had been denied by Spain on grounds that the acts of which they were accused did not constitute crimes against humanity and, therefore, were subject to a statute of limitations.²⁶⁴

Other issues of serious concern included the continuing high level of overcrowding in temporary migrant holding centres and the appalling material conditions in these facilities;²⁶⁵ the practice of summary forced return of irregular migrants and asylum seekers with no prior risk assessment of their personal circumstances;²⁶⁶ as well as other alleged breaches of the principle of non-refoulement.²⁶⁷

As follow-up the cat Cttee requested Spain to inform on the steps taken to carry out recommendations on incommunicado detention and fundamental legal safeguards; temporary migrant holding centres; solitary confinement; and the excessive use of force by law enforcement officials. In the light of the information provided by Spain,²⁶⁸ the cat Cttee considered that the recommendations had still not been fully implemented and requested updated information on the steps taken to achieve their implementation.²⁶⁹

In 2015 there was some media coverage of the consideration of the sixth periodic report of Spain²⁷⁰ and the subsequent adoption of the cos by the cat Cttee.²⁷¹ The focus was placed on incommunicado detention, solitary confinement, the lack of effective investigation of torture allegations and non-refoulement.

5.5.5 Impact of Individual Communications²⁷²

Between July 1999 and 30 June 2019, the cat Cttee found violations of cat in three communications concerning Spain:²⁷³

In Communication 212/2002 (Urra Guridi v Spain),²⁷⁴ decided on 17 May 2005, the complainant alleged violations of cat in view of the light sentence and subsequent pardon granted to the three civil guards who had been found guilty of torture in his regard. The cat Cttee was of the view that, in the circumstances of the case, the measures taken by Spain were contrary to the obligation in article 2 of cat, according to which states must take effective measures to prevent acts of torture. It also considered that the imposition of light penalties and the granting of pardons were incompatible with the duty under article 4(2) of cat to impose appropriate punishment. Violations of article 14 of cat were also found in that the compensation received did not cover all damages suffered by the complainant. Therefore, it urged Spain to ensure that the complainant receive full redress.

Regarding Communication 368/2008 (Sonko v Spain),²⁷⁵ the cat Cttee on 25 November 2011 decided that the information before it disclosed a violation of articles 12 and 16 of cat in connection with the circumstances in which the complainant’s brother died after having been rescued by a civil guard vessel, when he was swimming to enter the Spanish city of Ceuta. It urged Spain to carry out a suitable investigation into the events and to provide an effective remedy to the family. As follow-up, Spain on 28 July 2015 informed that the competent court had revoked the decision by which it declared the preliminary inquiry closed and reopened the investigation. Mr Sonko’s relatives were informed of the new legal avenues opened to them in that regard. However, since none of the relatives submitted an application to that effect, the inquiry concerning the death of Mr Sonko was again closed. Furthermore, the relatives did not initiate domestic proceedings in order to seek compensation. The follow-up procedure remains open.²⁷⁶

Finally, in Communication 453/2011 (Gallastegi v Spain),²⁷⁷ the complainant claimed that the allegations made to the courts of having been subjected to torture and ill-treatment while being held incommunicado did not lead to a prompt, independent and impartial investigation. The cat Cttee could find nothing to justify the failure of the courts to take evidence that was relevant. It therefore considered that Spain was under an obligation to provide the complainant with an effective remedy, including a full and thorough investigation of his claim. As follow-up, Spain informed that, while disagreeing with the cat Cttee’s findings, it had adopted the following measures: (a) in September 2012, the decision was published in the Official Bulletin of the Ministry of Justice; and (b) the decision was notified to all judicial and other concerned authorities.²⁷⁸

In a case decided in the period predating the time frame of this study,²⁷⁹ some measures relevant to implementation may be noted. In this communication, the cat Cttee found that the lack of investigation of the complainant’s allegations, which had been made to the forensic physician and repeated before the judge of the National High Court, and the length of time that passed between the reporting of the facts and the initiation of judicial proceedings, were incompatible with the obligation to proceed to a prompt investigation enshrined in article 12 of cat. The cat Cttee also found violations of article 13 cat in connection with the refusal of the judge to interview witnesses proposed by the complainant. Despite these findings, the cat Cttee did not request any particular measure of reparation, limiting itself to request that Spain provide information on any relevant measures taken in accordance with its views. Following the decision, Spain on 25 May 2009 informed the cat Cttee that it had been sent to all judges for information, as well as the office of the prosecutor which drafted guidelines for all prosecutors to the effect that all claims of torture should merit a reply by the judiciary. The follow-up procedure remains open.²⁸⁰

5.5.6 Impact of spt Visit²⁸¹

Spain ratified op-cat on 4 April 2006.²⁸² The spt visited the country from 15 to 26 October 2017. As a result, it addressed one report to the state,²⁸³ and one to the national preventive mechanism (npm).²⁸⁴ Spain replied in 2018.²⁸⁵

The spt recommended to Spain to harmonise article 174 of the Criminal Code with the definition of torture in article 1 of cat; to remove the distinction between severe and non-severe torture; to establish appropriate penalties for perpetrators of torture which take into account the seriousness of the offence in accordance with article 4(2) of cat; and to establish the non-applicability of statutory limitations to all acts of torture.²⁸⁶

While incommunicado detention was reduced in 2015 from 13 to 10 days, the spt recommended its abolishment and, in the interim, to prohibit it to juveniles between the ages of 16 and 18 years.²⁸⁷ It noted that coercive measures in prison should be used only on an exceptional basis, and not used as a punishment for persons deprived of their liberty who are at risk of committing suicide.²⁸⁸ Solitary confinement should not exceed 15 days and should be used only as a last resort in exceptional cases and under proper medical examination.²⁸⁹ The closed regime should not be extended indefinitely; persons subjected to it should receive appropriate medical attention and have access to group activities and common areas, including the library.²⁹⁰

In addition, Spain should ensure that complaints of torture or ill-treatment are investigated in an efficient, thorough and transparent manner; that those responsible for such acts are prosecuted and punished; and that impunity is combated by having an independent mechanism to carry out transparent investigations into all allegations of torture or ill-treatment by law enforcement officials.²⁹¹ Persons who have reported cases of torture or ill-treatment should be protected against reprisals.²⁹² Persons accused or convicted of acts of terrorism should not be systematically transferred to detention centres far from their families, in violation of rule 59 of the Nelson Mandela Rules.²⁹³ The spt also recommended further development of current training programmes for judges, prosecutors, public defenders, doctors²⁹⁴ and psychiatrist,²⁹⁵ including instruction concerning the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).²⁹⁶ Places of confinement should be established for patients with psychiatric disorders.²⁹⁷ Finally, it addressed recommendations dealing with persons belonging to groups deprived of their liberty in vulnerability, such as women, migrant, children and adolescents.²⁹⁸

Against civil society’s preferred view,²⁹⁹ the npm was established in 2009 as part of the National Ombudsman’s mandate.³⁰⁰ It is composed of a unit and an advisory board of independent experts. The npm is responsible for conducting periodic visits to places of deprivation of liberty that are overseen by various public authorities, in order to make recommendations with a view to preventing torture and other cruel, inhuman or degrading treatment or punishment. In its first eight years of its existence the npm carried out 754 visits.³⁰¹ Out of these 107 were conducted in 2017, 52 of which were follow-up visits.³⁰²

In accordance with the 2018 report of the spt to the npm, the budget allocated to it is included, without differentiation, in the overall budget of the Office of the Ombudsman, which makes it difficult for the npm to effectively fulfil its mandate. In this connection, the npm does not have a sufficiently large team of professionals to perform its mandate on a national scale, with the result that it needs to recruit specialists, such as doctors and psychologists, in order to build its capacities in an interdisciplinary manner.³⁰³ Therefore, the spt recommended that the npm submit a proposal to the legislature in order to obtain a budget of its own and to build an interdisciplinary team of specialists and professionals that will enable it to perform its mandate.³⁰⁴ These observations were welcomed by the npm. While indicating that, over the years, its budget had increased gradually, allowing the hiring of additional staff and external experts, it replied that it would address a request to Parliament in order to adjust the budget to its mandate and functions.³⁰⁵

The spt also noted that the npm does not adequately engage in constructive dialogue with senior authorities with a view to effectively monitor the implementation of its recommendations. It thus recommended that, after each visit, the npm should submit rapidly recommendations to the relevant authorities and conduct follow-up visits promptly. The npm should also establish, together with the relevant authorities if possible, an effective mechanism for monitoring the implementation of its recommendations.³⁰⁶ The npm replied that it considered it feasible to strengthen the mechanism.

The spt further recommended that the npm take steps to effectively increase its interaction with civil society and the offices of the ombudsmen of the autonomous communities.³⁰⁷ The npm showed its readiness to take initiatives in this respect. Concerning cooperation with the offices of the ombudsmen of the autonomous communities, a decision had been taken in 2013 by which staff from the latter participates in some of the visits carried out by the npm. This cooperation could be strengthened in the future.³⁰⁸

Following its visits to places of deprivation of liberty, the npm addresses suggestions or recommendations to the public authorities, an account of which is contained in its annual reports. As an example, the npm refers in 2017 to the follow-up to its recommendation concerning the premises of the local police in the town of Barbastro (Huesca). It found that the cells were not appropriate to hold detainees and recommended their closure while awaiting full renovation; the mayor of Barbastro ordered such closure.³⁰⁹ A similar recommendation was made regarding the cells in the Civil Guard premises of Armunia (León), as a result of which the cells were closed.³¹⁰ Still, the npm indicates that a large number of its recommendations are not implemented and that its follow-up mechanisms need to be strengthened.³¹¹

5.6.1 Incorporation and Reliance by Legislature and Executive

In accordance with articles 96(1) of the Constitution and 23 of the Act 25 of 2014, on Treaties and other International Agreements, crc is part of the Spanish legal order and is directly applicable. However, in 2002 the crc Cttee was concerned because the principles of non-discrimination, the best interests of the child, the right to life, survival and development of the child and respect for the views of the child were not fully reflected in the Spanish legislation and administrative and judicial decisions, as well as in policies and programmes relevant to children at both national and local levels. Consequently, it reiterated previous recommendation that Spain appropriately integrate the general principles of crc, namely, articles 2, 3, 6 and 12, in all relevant legislation concerning children.³¹⁸

In 2010 the crc Cttee recommended to Spain to ensure that legislation and administrative regulations in all the autonomous communities fully comply with the principles and provisions of crc. It also requested to improve an effective and adequate coordination system within the central administration and between the autonomous communities to implement policies for the promotion and protection of children. Besides, it welcomed the recognition in the domestic legislation of the child’s right to be heard and other children’s participation rights. Nevertheless, it was concerned that, in certain circumstances, recourse to higher courts was still necessary in order to obtain recognition for the right of a child to appear independently of his or her legal guardians before a court, in particular in judicial and administrative procedures affecting the child.³¹⁹ In 2018 it asked Spain to ensure the alignment of regional legislation with national legal frameworks related to children’s rights, ensuring its homogeneous implementation and adequate and sufficient human, technical and financial resources.³²⁰ The crc Cttee further recommended that all the provisions of crc be widely known and understood by adults and children, and called on Spain to develop systematic educational programmes on the principles and provisions of crc for the general public, children, families and professionals working with children, including judges, lawyers, law enforcement officials, teachers, health personnel. and social workers.³²¹

5.6.2 Reliance by the Judiciary

crc is regularly invoked in judgments by domestic courts, strictly for interpretative purposes.³²² It is legally encouraging to verify the incorporation of the crc Cttee jurisprudence in judicial decisions. For example, the Supreme Court judgment 41/2018 of 15 January 2018 in a matter relating to the regime of visits between grandparents and grandchildren noted that a flexibility criterion must be applied that allows the judge to issue a prudent and weighted trial, taking into account the particularities of the case and always having as a fundamental guide the principle of the best interests of the child (article 3 crc), which derives from article 8(1) of crc. Precisely, for the establishment of this regime of visits and communications, the will of the child must be considered in accordance with article 12 of crc as well as General Comment 14 (2013) of the crc Cttee on the right of the child to have his or her best interests taken as a primary consideration.³²³

5.6.3 Impact on and through Non-state Actors

crc has been widely studied by university researchers³²⁴ and is widely invoked by non-governmental actors. Some ngos are especially active in the promotion and defence of crc. This is the case of the unicef-Spanish National Committee, Fundación Raíces, Noves Vies, Defence of Children International, Sociology Group of Childhood and Adolescence, the Federation of Associations for the Prevention of Child Mistreatment (fapmi)³²⁵ and Spanish Multidisciplinary Association for Research on Parental Interferences (asemip).

The unicef Spanish Committee, for instance, covers all autonomous communities, focusing on political advocacy for the rights of children, the situation of children and education on rights, promoting a rights-based approach in classrooms and educational centres. In 2017 it reported to the crc Cttee on general measures for the implementation of crc and its general principles, the rights and civic freedoms of children, violence against children, the family environment, disability in childhood, educational, cultural and leisure measures or special protection measures in the event of trafficking in minors and migrant and refugee children.³²⁶

In April 2017 Fundación Raíces and Noves Vies reported to the crc Cttee on the situation of mena (unaccompanied migrant children), addressing issues such as location and immediate care; identification and documentation; the age assessment procedure; immigration detention centres (cie); residence and work authorisations; the right of children to be informed about their rights; the right to education; institutional violence; deportations without guarantees; and a lack of resources in the child protection system.³²⁷

In 2017 dci Spain (Defence of Children International) and gsia (Sociology Group of Childhood and Adolescence) also reported to the crc Cttee on civil and political rights and migratory itineraries of children and adolescents in Spain.³²⁸ Finally, asemip reported on the consequences for children and adolescents of delays in Spanish civil jurisdiction procedures.³²⁹

Regarding coverage of the crc Cttee’s work in the media, it has since 2015 become relatively important, but remains incomplete. The media fails to provide references to cos or general comments, while it should contribute to disseminating and raising awareness of the importance of crc by making a broader reference to relevant cos, rather than selecting specific issues within the broad framework of rights covered by crc.³³⁰

5.6.4 Impact of State Reporting

The crc Cttee considered the second,³³¹ third/fourth (combined)³³² and fifth/sixth (combined)³³³ periodic reports of Spain on the implementation of crc during its thirtieth (21 May-7 June 2002), fifty-fifth (13 September-1 October 2010) and seventy-seventh (15 January-2 February 2018) sessions, respectively. It also considered the initial reports of Spain regarding op-crc-sc on sale of children, child prostitution and the use of children in pornography³³⁴ and op-crc-ac on the participation of children in armed conflicts.³³⁵

More than ten ngos submitted alternative reports in the framework of the examination procedure of the fifth and sixth reports. The National Ombudsman as well as the Basque and Catalan Ombudsmen also submitted their own reports.

In the examination of the third/fourth (combined) reports (2010), the delegation of Spain was composed of members of the Permanent Mission and 13 representatives of seven ministries. In the examination of the fifth/sixth (combined) reports (2018), the Spanish delegation consisted of the Secretary of State for Social Services and Equality, five members of the Permanent Mission, 17 representatives from seven different ministries, two representatives of the State Attorney-General’s Office, one of the General Council of the Judiciary, and three representatives of the Autonomous Community of Galicia.

In 2002 the crc Cttee welcomed the legislative amendments to ensure better compliance with crc along the lines indicated by previous recommendations made in 1994.³³⁶ This is the case of the amendment of the Civil Code and the Civil Proceedings Act (the Protection of Minors Act, 1996), the improvement of safeguards in the cases of intercountry adoption (Act 1/1996) and the amendments to the Criminal Code with reference to offences against sexual integrity (1999). In 1999 the Observatory for Children was established and some autonomous communities created institutions or services specifically responsible for children. However, the crc Cttee regretted that Spain had insufficiently addressed its previous recommendations relating, inter alia, to coordination mechanisms existing in its constitutional and legislative framework: data collection; resources for children; to prevent discriminatory attitudes or prejudices towards vulnerable groups of children (including migrant children and gypsies); and the situation of asylum-seeking and unaccompanied children. In addition, the crc Cttee asked Spain to guarantee children’s equal access to the same standard of services, irrespective of where they are living, in the areas of health, education and other social welfare services. It further recommended to Spain to (i) increase the minimum age of marriage; (ii) appropriately integrate the general principles of crc (articles 2, 3, 6 and 12 crc) in domestic legislation and practice; (iii) amend article 154 of the Civil Code in order to delete the reference to reasonable chastisement and prohibit all forms of violence; (iv) ensure that protection procedures for children have a minimum common standard and are compatible with the best interests of the child; (v) adopt measures and policies to address domestic violence and abuses, teenage pregnancies or female genital mutilation; (vi) ensure regular attendance at schools and the reduction of truancy and drop-out rates, to prevent bullying and violence in schools and to promote the culture of peace and tolerance; and (vii) address other concerns related to labour and sexual exploitation of minors, unaccompanied minors and vulnerable groups or the administration of juvenile justice.³³⁷ Some of the concerns raised were reiterated in the 2010 cos.³³⁸

Regarding the general principles, the crc Cttee welcomed the efforts to combat the discrimination suffered by children belonging to vulnerable groups and to include the principle of the best interests of the child in the legislation and in the judicial decisions affecting the children. Moreover, it recommended the adoption of a strategy against de facto discrimination and a uniform process to determine what constitutes the best interests of the child at national and regional level, as well as to continue and strengthen efforts to fully implement and promote due respect for the views of the child at any age in administrative and judicial proceedings.³³⁹

Following the recommendations made by the crc Cttee in 2002, Spain modified article 154 of the Civil Code to delete the provision stipulating that parents could reasonably and moderately discipline their children, stating that parental authority shall always be exercised for the benefit of children, according to their personality ‘and with respect for their physical and psychological integrity’.³⁴⁰

The crc Cttee further recommended the approval of an integral law on violence against children, which would guarantee the reparation of their rights and minimum attention standards in the different autonomous communities. Other concerns were linked to the family environment and alternative care; basic health and health care; education, leisure and cultural activities; and special protection measures in favour of asylum-seeking children, refugees and unaccompanied foreign children, victims of sexual exploitation and abuse, and in the field of administration of juvenile justice.³⁴¹

In 2018 the crc Cttee welcomed new legislative amendments introduced by Act 26 of 2015, on the modification of the system for the protection of children and adolescents.³⁴² However, it recommended to Spain to adopt additional extensions to the statute of limitations in child sexual abuse cases.³⁴³ In addition, it required Spain to adopt urgent measures in the following areas: the allocation of resources; non-discrimination; children deprived of a family environment; the standard of living; education; asylum-seeking and refugee children; and unaccompanied foreign children.³⁴⁴ In addition, Spain should, inter alia, (i) ensure that the business sector complies with the rights of the child; (ii) remove exceptions to the minimum age for marriage under 18 years; (iii) ensure that children born through international subrogation have access to information about their origins; (iv) monitor and enforce the prohibition of corporal punishment; (v) guarantee the integral protection of children against violence; (vi) strengthen the fight against the sexual exploitation of children; and (vii) end the use of incommunicado detention of all children, increase the number of specialised judges for children, ensure the availability of specialised juvenile court facilities and child-friendly procedures and strengthen capacity building and awareness raising of judges on crc and its ops.³⁴⁵

Regarding op-crc-sc, the crc Cttee recommended the establishment of a central database for registering violations of the op disaggregated by age, sex, minority group and origin;³⁴⁶ to make the op widely known, particularly to children, their families and communities,³⁴⁷ raising the age of sexual consent (13 years);³⁴⁸ bringing its Criminal Code in full compliance with articles 2 and 3 of op-crc-sc, including the provisions on remuneration and improperly induced consent,³⁴⁹ criminalising trafficking in persons in accordance with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; ratifying or acceding to the CoE Convention on Action against Trafficking in Human Beings (2005) and the Convention on Cybercrime (2001);³⁵⁰ prosecuting child pornography and allocate more resources to investigating crimes of child prostitution and the sale of children;³⁵¹ and earmarking resources to strengthen social reintegration and physical and psychosocial recovery measures, in accordance with article 9(3) of op-crc-sc.³⁵² Finally, regarding op-crc-sc, the crc Cttee made a number of recommendations in 2007, including the reform of the Criminal Code.³⁵³ In 2018 it reiterated that Spain should increase the number of professionals providing assistance for the physical and psychological recovery and social reintegration of asylum-seeking and refugee children who may have been involved in hostilities abroad.³⁵⁴ No reply has been received.

5.6.5 Impact of Individual Communications³⁵⁵

The crc Cttee found Spain in violations of the crc in four instances:³⁵⁶

First, in nbf v Spain,³⁵⁷ a case concerning the age assessment procedures as applied to unaccompanied migrant children, the crc Cttee concluded that the absence of a multidisciplinary age assessment procedure and the lack of safeguards led to a finding that the best interests of the child were not a primary consideration in the age determination procedure to which the complainant, who alleged to be a minor, was subjected, in breach of articles 3 and 12 of crc. The Committee also concluded that by not taking the interim measure of providing the complainant with accommodation in a centre for unaccompanied minors, as requested, Spain breached its obligations under article 6 of op-crc-cp. The crc Cttee indicated no specific measure of redress in connection with the complainant, but limited itself to remind Spain of its obligation to prevent similar violations in the future. At the time of writing Spain had not yet submitted information on measures taken in accordance with the views.

Second, in dd v Spain,³⁵⁸ the crc Cttee found violation of articles 3, 20 and 37 of crc when the police in 2014 deported a Malian minor from Melilla to Morocco. The victim was allowed no protection as a minor. Spain should provide him with adequate reparation, including financial compensation and rehabilitation for the harm suffered; prevent similar violations from occurring in the future, in particular by revising Organic Act 4 of 2015 on safeguarding the security of citizens, which was adopted on 1 April 2015; and revise the tenth additional provision of that law, on the special regime applicable in Ceuta and Melilla, which would authorise the practice of indiscriminate automatic deportations at the border.

Third, in al v Spain,³⁵⁹ the crc Cttee found violation of articles 3, 8 (Spain failed to respect the identity of the author by denying that the birth certificate had any probative value) and 12 crc (the best interests of the child were not a primary consideration in the age determination process); and article 6 of op-crc-cp (failure to implement the requested interim measure of transferring the author to a child protection centre).

The fourth finding, in jab v Spain, similar to nbf and al, concerns violations in the context of age determination of an unaccompanied minor.³⁶⁰

Consequently, the crc Cttee recommended that Spain provide the authors with adequate reparation, and prevent similar violations in the future by ensuring that all procedures for determining the age of possible unaccompanied children are carried out in a manner consistent with crc and, in particular, that in the course of such procedures they are granted prompt access to a qualified representative free of charge. As follow-up, Spain should within 180 days provide information about the measures it has taken to give effect to the crc Cttee’s views, to publish them and to widely disseminate them. However, no reply has been received.

5.7.1 Incorporation and Reliance by Legislature and Executive

Once published, ced is part of the domestic legislation,³⁶² and the latter should be interpreted in line with ced.³⁶³ ced can be invoked directly before domestic tribunals.³⁶⁴

The ced Cttee noted as a positive development the adoption of Instruction 12/2009 by the State Secretariat for Security regulating the Register of Detainees; and Instruction 12/2007 on the behaviour required of members of the security forces and units to guarantee the rights of detainees and persons in police custody.³⁶⁵ However, the Cttee recommended that Spain ensure that security forces of which the members are suspected of having committed an enforced disappearance do not participate in the investigation.³⁶⁶ In addition, the search for persons who have been the victims of enforced disappearance and efforts to clarify their fate are obligations of the state even if no formal complaint has been laid; relatives are entitled to know the truth about the fate of their disappeared loved ones. Therefore, Spain should set up ‘an ad hoc body responsible for searching for persons who were the victims of enforced disappearance’.³⁶⁷

In accordance with article 24(2) of ced, all victims of enforced disappearance have the right to know the truth. The ced Cttee recommended that Spain set up ‘a commission of independent experts charged with establishing the truth about past human rights violations, in particular enforced disappearances’.³⁶⁸ Unlike the national government, some regional governments made investigations of disappearances during the Franco dictatorship. This is the case of Catalonia, Andalusia and the Basque country governments.³⁶⁹

5.7.2 Reliance by Judiciary

In 2012 the Supreme Court confirmed that the Amnesty Act of 1977 does not allow the judiciary to investigate the fate of disappeared persons in the period 1936 to 1952. It then dismissed a suit brought by a group of associations for the recovery of historical memory that had been initially accepted by Magistrate B Garzón.³⁷⁰ Judgments 75/2014 and 478/2013 of the Provincial Court of Madrid both confirmed that criminal proceedings are not the proper avenue for seeking satisfaction for the claims of complainants on the exhumation of the remains of family members in the Valle de los Caídos. However, the ced Cttee recommended that Spain ensure that the courts’ exercise of jurisdiction over offences of enforced disappearance is guaranteed, in accordance with the obligations arising from article 9 of ced and, in particular, the principle of aut dedere aut judicare.³⁷¹ Moreover, all cases of enforced disappearances should ‘remain expressly outside military jurisdiction and can only be investigated by ordinary courts’.³⁷² Finally, Spain should provide the necessary judicial assistance, including providing all evidence at its disposal, to the authorities of other states that may request it in connection with investigations into possible cases of enforced disappearance.³⁷³

5.7.3 Impact on and through Independent State Institutions

The Ombudsman (Defensor del Pueblo) has not submitted reports to the ced Cttee. The annual reports of the Ombudsman do not deal with the issue of disappearances.³⁷⁴ The ced Cttee recommended to Spain to ‘ensure that the Office of the Ombudsman has sufficient financial, human and technical resources effectively to perform its role as the mechanism for the prevention of torture’.³⁷⁵

5.7.4 Impact on and through Non-state Actors

One ngo on 30 April 2008 submitted a report on the rights of victims of disappearances in Spain;³⁷⁶ a statement of 27 November 2008 before the Working Group on Enforced or Involuntary Disappearances;³⁷⁷ and a report of 16 February 2010 on the incompatibility of the 1977 Amnesty Act with international law,³⁷⁸ which was supported by numerous ngos and academics.³⁷⁹ Two ngos in November 2014 reported that all recommendations of the ced Cttee remained unimplemented.³⁸⁰ On 30 August 2018 four ngos addressed persistent shortcomings to the Spanish authorities both from the executive and the judiciary.³⁸¹ The reply of 26 September 2018 from the Attorney-General stated that the Supreme Court’s judgment of 2012 was a consolidated jurisprudence preventing any investigation of past disappearances.³⁸²

5.7.5 Impact of State Reporting

The ced Cttee considered the report of Spain³⁸³ at its 62nd and 63rd meetings, held on 5 and 6 November 2013. At its 74th meeting, held on 13 November 2013, it adopted the cos.³⁸⁴

Spain was asked to take legislative measures ‘to make enforced disappearance a separate offence in line with article 2 ced’; the offence ‘should be punishable by appropriate penalties’;³⁸⁵ to ensure that ‘the term of limitation actually commences at the moment when the enforced disappearance ends’; ‘all disappearances are investigated thoroughly and impartially’; ‘remove any legal impediments to such investigations in domestic law, notably the interpretation given to the 1977 Amnesty Act’; ‘perpetrators are prosecuted and, if found guilty, punished in accordance with the seriousness of their actions’; and ‘victims receive adequate reparation that includes the means for their rehabilitation and takes account of gender issues’.³⁸⁶

Spain was further requested ‘to prohibit carrying out an expulsion, refoulement, rendition or extradition when there are substantial grounds for believing that the person would be in danger of being subjected to enforced disappearance’;³⁸⁷ to ensure that all persons, regardless of the offence with which they are charged, enjoy all the safeguards provided for in article 17 of ced;³⁸⁸ that ‘the right to apply for habeas corpus may be neither suspended nor restricted under any circumstances, even when a state of emergency or siege has been declared’;³⁸⁹ to establish a definition of victim that conforms to that contained in article 24(1) of ced.³⁹⁰

Finally, the ced Cttee recommended to Spain to incorporate as specific offences the acts described in article 25(1) of ced on removal of children and to provide appropriate penalties that take into account the extreme seriousness of the offences; ‘to search for and identify any children who may have been the victims of removal, enforced disappearance and/or identity substitution’, in conformity with article 25(2) of ced; and to ensure that ‘national dna bank holds genetic samples for all cases that have been reported whether through administrative or judicial channels’,³⁹¹ given that children who are victims of enforced disappearance are especially vulnerable to numerous human rights violations, including identity substitution.³⁹²

As follow-up, by 15 November 2014 Spain was required to provide information on its implementation of selected recommendations;³⁹³ and no later than 15 November 2019 on the implementation of all its recommendations; and to facilitate the participation of civil society, in particular organisations of relatives of victims, in the preparation of this information.³⁹⁴

The information provided by Spain in its 2015 response revealed no progress on the implementation of recommendations selected for follow-up.³⁹⁵ Spain indicated that it did not share the interpretation provided by the ced Cttee of article 35 of ced dealing with its own competence ratione temporis regarding individual complaints, since it sets forth a broad interpretation extending its competence to encompass an unspecified length of time in the past; it will also entail a duplication of efforts and a clear overlap with other human rights treaty bodies and, in particular, with the Working Group on Enforced or Involuntary Disappearances.³⁹⁶

No urgent actions under article 30 of ced or reports of reprisals have been received by ced Cttee regarding Spain.

5.7.6 Impact of Individual Communications

No individual complaints from Spain were received by the ced Cttee.

5.8.1 Incorporation and Reliance by Legislature and Executive

crpd is part of the domestic legislation,³⁹⁸ and the latter should be interpreted in line with the Convention.³⁹⁹ crpd can be invoked directly before domestic tribunals.⁴⁰⁰ Spain enacted Act 26 of 2011, on normative adaptation to crpd to ensure appropriate harmonisation of domestic legislation with the treaty. According to this Act, all proposed laws and regulations should include, when relevant, analytical studies on their impact on the equality of opportunities, non-discrimination and accessibility of persons with disabilities.⁴⁰¹

In the period 2006 to 2016, 42 laws, 75 Royal Decrees and 14 Ministerial Orders were adopted in relation to persons with disabilities.⁴⁰² Act 26 of 2011 was regulated by the Royal Decree 1276/2011, which in turn amended 11 Royal Decrees.⁴⁰³ By Legislative Royal Decree 1/2013, the Consolidated Text of the General Act on the Rights of Persons with Disabilities was approved.⁴⁰⁴ However, the text was found not in compliance with the human rights model of disability when the crpd Cttee considered the second and third periodic reports of Spain in March 2019.⁴⁰⁵ The Committee commended Spain for taking steps to guarantee the right to vote of all persons with disabilities on an equal basis with others.⁴⁰⁶

In 2009 Spain adopted the Third Plan of Action for persons with disabilities 2009–2012. It was followed by the long-term strategy for persons with disabilities (2012–2020), which included objectives for the short and medium term.⁴⁰⁷

Both the Spanish Committee of Representatives of Persons with Disabilities (cermi) and Defensor del Pueblo (UN status A) have been formally appointed as the National Independent Monitoring Mechanisms following article 33 of crpd.⁴⁰⁸

With regard to budget allocations, in key areas of crpd such as accessibility, inclusive education and living independently and being included in the community, the crpd Cttee observed that public budgets were either insufficient or not allocated in line with crpd.⁴⁰⁹

With regard to accessibility, in 2019 the crpd Cttee expressed concern over the ineffectiveness of policies regarding accessibility in public administration, the lack of sufficient budget allocations and the lack of mandatory admissibility criteria in public procurement at all levels.⁴¹⁰

With regard to the implementation of the right to live independently and being included in the community, the crpd Cttee regretted ‘the continuing investment of public funds in the construction of new residential institutions for persons with disabilities’.⁴¹¹

On 22 February 2019 the government established 3 May as the national day of crpd.

5.8.2 Reliance by Judiciary

The reception of crpd by domestic tribunals is diverse, from both a qualitative and a quantitative point of view. It is not always referenced in domestic judgments and the interpretation of crpd by domestic courts is not always in line with the human rights model of disability enshrined in crpd and general comments of the crpd Cttee. As an example, a judgment of the Civil Chamber of the Supreme Court considered that the restrictions to the right to vote of a person with a disability was compatible with crpd.⁴¹² On the right to education, the Constitutional Court, in its judgment 10/2014 of 27 January, found segregation from the mainstream educational system based on impairment assessment compliant with crpd.⁴¹³ However, in 2015 the Superior Court of Justice of Catalonia considered that such segregation infringed upon the right to equal treatment and the prohibition of non-discrimination.⁴¹⁴ Also, in judgment 3/2018 of 22 January, the Constitutional Court highlighted the importance of reasonable accommodation and the prohibition of discrimination on the basis of disability.⁴¹⁵

5.8.3 Impact on and through Independent State Institutions

In 2011 the Ombudsman (Defensor del Pueblo) published a national report on human rights and disability.⁴¹⁶ The annual reports of the Ombudsman regularly include chapters on the implementation of the rights of persons with disabilities.⁴¹⁷

cermi has since 2008 published annual reports on disability and human rights.⁴¹⁸ These are based on a variety of sources such as information collected by grassroots organisations of persons with disabilities, decisions of public administrations, decisions and judgments of tribunals, and information from the media. cermi acknowledges that different awareness-raising measures have been adopted by Spain, but indicates that they lack systematic and structural dimensions.⁴¹⁹ cermi identifies as priority actors, which require systematic attention, national and regional parliaments, public administrations and judges.

cermi submitted an alternative report to the initial report of Spain, and the Defensor del Pueblo submitted an alternative report prior to the adoption by the crpd Cttee of the list of issues under the simplified reporting procedure.⁴²⁰ Other civil society organisations also submitted alternative reports.⁴²¹ cermi’s 2013 annual report, which is available on cermi’s website, reproduces the recommendations of the crpd Cttee and describes the measures adopted by Spain in implementing those recommendations. Both cermi and the Defensor del Pueblo submitted alternative reports in relation to the consideration of the second and third periodic reports of Spain.⁴²²

In 2018 cermi pointed out the lack of awareness about crpd and the human rights model of disability among professionals, public officers and service providers in key areas of crpd such as the right to equal recognition before the law, inclusive education, and the prohibition of forced sterilisation or involuntary institutionalisation. cermi explains this lack of understanding of crpd by the fact that diverse and multiple training activities lack a comprehensive strategy on the subject.⁴²³

In 2019 the crpd Cttee noted with regret the lack of training for professionals in fields such as education, health and the judiciary to raise awareness about the rights of persons with disabilities. It also lamented the overall lack of awareness about the provisions of crpd among lawyers, court staff, judges, prosecutors and law enforcement officials.⁴²⁴

5.8.4 Impact of State Reporting

Spain submitted its initial report on 3 May 2010, exactly two years after the entry into force of crpd in Spain.⁴²⁵ The report was considered by the crpd Cttee on 20 September 2011. It did not identify recommendations for follow-up as this procedure was only subsequently adopted.⁴²⁶

The crpd Cttee adopted a list of issues under its simplified reporting procedure regarding Spain in April 2017,⁴²⁷ and requested it to submit its combined second and third reports in May 2018. Spain complied with this requirement by submitting these on 3 May 2018.⁴²⁸ This report does not specify whether organisations of persons with disabilities and civil society organisations were consulted. Both the initial report and the combined second and third reports described in detail the laws, policies and measures adopted in the implementation of crpd. During the first constructive dialogue held with the crpd Cttee in September 2011, the delegation of Spain responded openly to the questions raised by members of the crpd Cttee.⁴²⁹

In 2019 the crpd Cttee expressed concern on several areas where there was not significant progress since 2011. These areas include abolishing legal provisions that reinforce a negative perception of disability by allowing the late termination of pregnancy based on foetal impairments; abolishing legislative initiatives aimed at allowing euthanasia in case of disability;⁴³⁰ ‘the predominance of a paternalistic approach and the lack of human rights-based provisions within mental health systems’;⁴³¹ and ‘the lack of training for professionals in fields such as education, health and the judiciary to raise awareness about the rights of persons with disabilities’.⁴³²

Spain was asked to ‘prohibit multiple and intersectional discrimination on the grounds of disability, sex, age, ethnicity, gender identity, sexual orientation and any other status, in all areas of life’; and ‘recognise the denial of reasonable accommodation as a form of discrimination’.⁴³³ Spain was also asked to ‘provide protection from multiple discrimination against women and girls with disabilities, in particular women and girls with intellectual or psychosocial disabilities’;⁴³⁴ to ‘end the institutionalisation of children with disabilities’;⁴³⁵ to ‘ensure accessibility in all areas, including buildings and facilities open or provided to the public’;⁴³⁶ to ‘address gender-based violence against women with psychosocial disabilities’;⁴³⁷ to ‘repeal all discriminatory legal provisions with a view to fully abolishing substituted decision-making regimes’;⁴³⁸ to ‘remove barriers for persons with disabilities in their access to justice’;⁴³⁹ to ‘prohibit forced institutionalisation and treatment on the grounds of disability’;⁴⁴⁰ to ‘ensure the free and informed consent of the person concerned in all procedures and stages of the mental health system’;⁴⁴¹ and to ‘establish an independent human rights-based mechanism for monitoring mental health facilities and services in all autonomous communities’.⁴⁴²

In addition, Spain was requested to ‘repeal article 156 of Organic Act No 10/1995 to fully abolish the administration of sterilisation, medical treatment and research on all persons with disabilities without the full and informed consent of the person concerned’;⁴⁴³ to ‘recognise the right to personal assistance in law, ensuring that all persons with disabilities are entitled to personal assistance’;⁴⁴⁴ to ‘discontinue the use of public funds to build residential institutions for persons with disabilities’;⁴⁴⁵ and to expedite legislative reform in line with crpd, in order to ‘clearly define inclusion and its specific objectives at each educational level’ and ‘to view inclusive education as a right’.⁴⁴⁶

As follow-up, the crpd Cttee in 2019 requested Spain to pay urgent attention ‘to the recommendations contained in paragraphs 34, on protecting the integrity of the person, and 46–47, on inclusive education’.⁴⁴⁷ No reply has been received.

No reports of reprisals have been received by the crpd Cttee regarding Spain.⁴⁴⁸

5.8.5 Impact of Individual Communications

By 30 June 2019 the crpd Cttee has found Spain in violation of the crpd in one communication, vfc v Spain.⁴⁴⁹ In the complaint, dealing with a municipal employee who, due to an accident leading to motor disability was compelled to go on mandatory retirement and was refused the possibility of modified-duty assignment, the Cttee concluded that Spain failed to fulfil its obligations under articles 27(a), (b), (e), (g), (i) and (k), read alone and in conjunction with articles 3(a), (b), (c), (d) and (e); articles 4(1)(a), (b) and (d) and (5); and articles 5(1), (2) and (3) of crpd.⁴⁵⁰ As for individual-focused remedies, the crpd Cttee stated that the victim has the right to compensation and to undergo an assessment of fitness for alternative duties for the purpose of evaluating his potential to undertake modified duties or other complementary activities, including any reasonable accommodation that may be required. As for general measures, the crpd Cttee recommended that Spain take measures to prevent similar violations in the future; to align the modified-duty regulations of the Barcelona municipal police and their application with the principles enshrined in crpd to ensure that assignment to modified duty is not restricted to persons with a partial disability; and similarly harmonising the variety of local and regional regulations governing the assignment of public servants to modified duty.⁴⁵¹ As follow up, Spain should within six months report on any action taken in light of the present views; to publish them, to have them translated into the official languages of the state and to circulate them widely, in accessible formats, in order to reach all sectors of the population.⁴⁵²

5.8.6 Impact of Inquiry

The crpd Cttee carried out an inquiry on Spain regarding grave or systematic violations of article 24 of crpd (right to education), on the basis of information received from ngos alleging structural exclusion and segregation of persons from the mainstream education system on the basis of disability. The period examined spanned from 2011 to June 2017 and the inquiry included a visit to the country conducted from 30 January to 10 February 2017.⁴⁵³ The crpd Cttee found violations of the right to an inclusive and quality education related primarily

to certain features of the education system that have been maintained despite reforms and that continue to exclude persons with disabilities – particularly those with intellectual or psychosocial disabilities or multiple disabilities – from mainstream education on the basis of assessments conducted according to the medical model of disability. This, in turn, results in educational segregation and denial of the reasonable accommodation needed to ensure the non-discriminatory inclusion of those with disabilities in the mainstream education system. This segregation … [affected] around 20 per cent of persons with disabilities, with negative repercussions on their social inclusion.⁴⁵⁴

On 25 May 2018 Spain rejected the crpd Cttee’s findings arguing that the report did not reflect the real situation in the country. Inclusive education was a principle that had prevailed in the legislation and policies of successive governments, both at the central and regional levels, but it was a permanent process in the course of which adjustments were required in accordance with the principle of the best interests of the child.⁴⁵⁵

In 2019 the crpd Cttee remained concerned about the limited progress made by Spain with regard to inclusive education, including the lack of a clear policy and action plan for the promotion of inclusive education. It was particularly concerned that Spain has maintained regulatory provisions on special education and a medical impairment-based approach. It regretted that a high number of children with disabilities, including autism, intellectual or psychosocial and multiple disabilities, are still receiving segregated education. The crpd Cttee called upon Spain to implement all the recommendations contained in its inquiry report.⁴⁵⁶

5.8.7 Brief Conclusion

Spain has adopted many laws, regulations, policy and practical measures to implement crpd. While progress has been made in several areas, resulting in broader social inclusion of persons with disabilities, major challenges persist in key areas of crpd such as the full recognition of legal capacity of persons with disabilities;⁴⁵⁷ the right to inclusive education;⁴⁵⁸ accessibility;⁴⁵⁹ and the rights of persons with disabilities to live independently and being included in the community.⁴⁶⁰ Women with disabilities continue to experience intersectional discrimination based on disability, gender, and other statuses limiting their advancement, development and empowerment as actors of change.⁴⁶¹ More needs to be done at all levels – national, regional and local levels – in the key area of raising awareness of crpd and the human rights model of disability, as the medical model of disability continues to be largely entrenched in society, and contributes to perpetuate negative stereotyping, prejudices and stigma against persons with disabilities and, particularly, against persons with intellectual, psychosocial and multiple disabilities.⁴⁶²