Committee on the Elimination of Racial Discrimination considers report of Spain

24 February 2011

The Committee on the Elimination of Racial Discrimination has considered the eighteenth through twentieth periodic reports of Spain on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.

Presenting the report, Isaac Salama, State Counsel for the Ministry of Justice, referred to the Universal Declaration of Human Rights and said Spain believed firmly in every word of that declaration, and as a democracy it was making efforts to align itself with the Declaration. Mr. Salama said the promotion and protection of Human Rights was a priority of the Spanish government and announced that Spain had joined the small number of countries with an official Human Rights Plan, part of which was directly or indirectly linked to the Committee’s recommendations. The State was committed to the protection of the rights of aliens, including those who lacked documentation, in order to allow them enjoy all civil rights.

Regarding equality, Mr. Salama emphasized the particular significance of the State’s creation of a council to foster equal treatment irrespective of racial grounds and the protection of the Gypsy community. There was the newly introduced idea of education for human and civic rights, and several activities had been carried out to ensure that the media grasped the need to eliminate stereotypes regarding the Gypsy community.

During the interactive discussion Committee Experts sought further information about the conspicuous absence of comprehensive data on the demographic composition of the Spanish population, the exact number and nature of all minority groups, details about incidents and victims of racial discrimination, and efforts made by the State to halt the propagation of overtly racist declarations in newspapers and graffiti. The Experts asked the delegation to explain whether there existed any legal instruments governing racism relating to torture and ill treatment of aliens by police and other administrative authorities. The delegation was asked to convey the State’s position on the allegation that certain Spanish police unions were given specific orders to set up road blocks to check identification papers in areas where immigrants were predominantly resident. Commending the State on the various plans of action geared toward the prevention of racial discrimination, Committee Members asked for an evaluation of the impact of such measures.

In preliminary concluding remarks, Jose Francisco Cali Tzay, Committee Expert serving as country Rapporteur for the report of Spain, noted with satisfaction the numerous measures which had been initiated to address the issue of racial discrimination, especially with regards to the Gypsy community. He welcomed information that female victims of sexual abuse were not deported, but expressed concern about how the State treated cases of rape committed against undocumented migrants that went unreported because the victims feared deportation. Mr. Cali Tzay asked the delegation to give serious consideration to racist jokes and insults which were said to be common in Spain and develop appropriate action against them so that those targeted did not feel attacked and discriminated against.
The delegation of Spain included representatives from the Ministry of Justice, the Ministry of Labour and Immigration, the Ministry of Health, Social Policy and Equality, the Ministry of Interior, the Ministry of Education, the Ministry of Foreign Affairs and Cooperation and the Permanent Mission of Spain to the United Nations Office at Geneva.

The Committee will present its written observations and recommendations on eighteenth through twentieth periodic reports of Spain, which were presented in one document, at the end of its session, which concludes on 11 March.

When the Committee reconvenes at 3 p.m. this afternoon it is scheduled to take up the initial report of Serbia (CERD/C/SRB/1).

Report of Spain

The eighteenth through twentieth periodic reports of Spain, submitted in one document (CERD/C/ESP/18-20), make particular reference to the act on the protection of personal information, which provides, in article 7, that personal information referring to racial origin, health and sexuality can be collected, processed and released only where, in the general interest, the law so provides, or the individual concerned gives express consent. The Act prohibits the creation of files for the sole purpose of storing data on, inter alia, the racial or ethnic origin of the individual, and considers that such data should have special protection. In this connection it is the Government’s view that the availability of statistics on the number of persons of each race or ethnicity would in fact result in discrimination. Accordingly, statistics on aliens and immigration refer to nationality, but never to the race, ethnic origin or religion of foreigners in Spain. Nor are such statistics compiled on Spanish nationals, although information is available on the Spanish Gypsy population.

The report outlines that the Constitutional recognition and protection of the principle of equality and non-discrimination is not confined to Spaniards but also applies to foreigners in Spain as specified in the Aliens Act. The list of rights recognized to foreigners in Spain is wide-ranging both in scope and content and includes the right to take part in public life, freedom of assembly, demonstration and association, freedom to join a trade union and to strike and other rights such as the right to education, the right to employment and social security, the right to health care, the right to housing assistance and the right to social security and social services. The Strategic Plan for Citizenship and Integration (2007–2010) is based on the principle of equality and non-discrimination, which implies equal rights and obligations for the immigrant and indigenous population within the framework of basic constitutional values. Equality and the fight against discrimination are therefore cross-cutting issues that have been taken into account in drawing up all programmes under the plan.

The report says the Government decided to prepare a comprehensive plan to combat trafficking in human beings for the purpose of sexual exploitation, with the initial design and coordination entrusted to the Ministry of the Interior. Human trafficking also covers the recruitment of children and young people for sexual purposes via the Internet and new technologies but should not be confused with the smuggling of migrants, which, according to the United Nations, is the “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State party of which the person is not a national or a permanent resident”. The measures set out in the plan were guided by the underlying principles of gender perspective; the combined violations of fundamental rights; the transnational nature of the problem which requires international cooperation and the indispensable role of the police and the courts.

With regard to measures to condemn racial segregation and apartheid and to prevent, prohibit, and eradicate all practices of this nature, it should be pointed out that both the Spanish Constitution and Spanish legislation establish the principle of equality and non-discrimination as one of the highest values of the legal system and as a fundamental right, which obviously translates to a complete condemnation of racial segregation. With regard to measures to declare illegal and prohibit organizations and activities which promote and incite racial discrimination, both the Constitution and the Criminal Code consider organizations that promote discrimination, hatred or violence based on belonging to an ethnic group, race or nationality to be illegal.

Presentation of Report

JAVIER GARRIGUES, Permanent Representative to the Permanent Mission of Spain to the United Nations at Geneva, in opening remarks, conveyed the appreciation of the Spanish government for the work done by the Committee to promote respect for human rights in the world. He reiterated Spain’s recognition of the primacy of human rights in the world and said this was why Spain took part in the open and frank activities of the Human Rights Council. It was in that respect that the State would report on the efforts made by the country to eradicate all forms of racial discrimination within the country.

ISAAC SALAMA, State Counsel at the Ministry of Justice, in presenting the periodic report of Spain, referred to the Universal Declaration of Human Rights and said Spain believed firmly in every word of that declaration, and as a democracy it was making efforts to align itself with the Declaration. Mr. Salama said that a lot of innovations had been introduced after 2004 and the delegation would be elaborating on the progress made so far on those aspects. He said the promotion and protection of human rights was the priority of the Spanish government and announced that Spain had joined the small number of countries with an official human rights plan, part of which was directly or indirectly linked to the Committee’s recommendations. The State was committed to the protection of the rights of aliens, including those who lacked documentation in order to allow them enjoy all civil rights. Currently, a new strategic plan of action for 2007-2014 was under development.

Regarding equality, Mr. Salama emphasized the significance of the State’s creation of a council to foster equal treatment irrespective of racial grounds and the protection and fostering of the situation of the Gypsy community. There was the recently introduced idea of education for human and civic rights. The criminalization of the trafficking of persons, most of the victims of which were foreigners, and other grounds for discrimination such as origin, race religion and sexual orientation were being explored. The reform of the Criminal Code would be made in such a way that severe sentences would be implemented on all those who were guilty of racial discrimination.

The State also wanted to create programme to implement an educational approach which encouraged cultural and religious pluralism in the society and the State was ready to provide any clarification requested from the Committee in that direction.

NICOLAS MARUGAN ZALBA, Director of the Observatory against Racism and Xenophobia at the Ministry of Labour and Immigration, said Spain’s policy to eliminate racial discrimination was based on the State’s legal system. Spain had been investing resources with a view to eliminating incidents of discrimination against migrants irrespective of their origin. Many of the economic and social rights, especially with regards to access to health services and employment, were guaranteed in Spain irrespective of migrants’ legal status. A strategic plan would be funded by the State for the integration of immigrants. The approval of the human rights plan was a very significant step towards the promotion of human rights.

The plan of action was based on the fact that it ought to apply to every individual living within Spain and guaranteed access to education, employment, social development and health services. The support fund for integration helped allocate services to foster the integration of migrant communities. Part of the fund was for reception and integration with regards to housing and employment while the other part targeted education of migrants.

In addition to the support fund, local bodies also granted subsidies for programmes to foster integration. Other programmes were designed to discourage xenophobia and other acts of racism, and promote social inclusion at the local level. The State had set priorities for the new plan which included racism and xenophobia, offered regular information regarding these two issues and disseminated information in order to better inform and educate the public. The State was committed to adopting new methods to promote and protect citizens and non- citizens alike against incidents of racism and xenophobia.

Efforts had been made to collect data specifically on acts of racism and xenophobia and the government was considering the development of a protocol to train public officials on how to properly detect incidents of racism and xenophobia. Every year, the State published a report which analyzed the attitude of Spanish people toward immigrants. There were actions put in place to cater to victims of discrimination and xenophobia.

The intervention strategy was based on dialogue between the State and vulnerable communities in order to learn new ways of combating discrimination and preventing its occurrence and spread. The security forces received compulsory human rights training and this was carried out in cooperation with people running police training in big cities in order to have a homogenous result. The State had committed itself to monitoring how the media treated immigrants and a practical guide had been distributed to the media to prevent them from encouraging stereotypical views of immigration.

The State was aware of the challenges facing the society but wanted immigrants to feel at home in Spain and was committed to working towards a programme that would ensure this.

IGNACIO SOLA, Secretary of the Council for the Promotion of Racial Equality at the Ministry of Health, Social Policy and Equality, said a key to building a modern democratic society was the inclusion of all members of that society and Spain had come a long way in recognizing this. The legal framework put in place to enhance this was only a starting point. The State was committed to making the concept of equality a reality such that it was applicable to all persons living in the State without any distinction.

The State secretariat for the promotion of equality had started work on establishing a network of centres to assist victims of discrimination and this had been submitted for evaluation and subsequent publication by the minister responsible. The network was also focused on raising awareness about the negative effects of discrimination.

In 2010 about 300 discrimination complaints were registered and the State would be dealing with the cases in the near future.

The government would carry out a survey asking people in Spain to explain their perception of discrimination, the aim of which was to come up with reliable data to help the State develop a national policy on discrimination. Analysis would also be made from secondary sources in order to determine discrimination based on origin. The Bill on Equal Treatment and Non-Discrimination was not targeted at minorities, but embraced all persons because the government wanted to have a broad based instrument covering all possible grounds for discrimination. The guarantee proved that rights could effectively be enjoyed and was based on measures which led to the prosecution of all forms of discrimination and rules regarding the burden of proof for crimes which could not be proved to have a discriminatory motive. Thanks to that bill, Spain aspired to the dream of Dr. Martin Luther King who had hoped to see the complete disappearance of all sorts of discrimination.

MARTIN DIEGO BLAZQUEZ, Adviser to the Ministry of Health, Social Policy and Equality, said the provision of equal treatment for the members of the Gypsy community had undergone a noticeable improvement whereby knowledge and awareness had been strengthened. The State had implemented technical training of public officials so that the Gypsy community could establish links with those responsible for applying the rules promoting the respect of their rights. Several activities had been carried out to encourage the media to eliminate stereotypes regarding the Gypsy community. The State had sought to disseminate information to the public for a better understanding of the Gypsy culture and this was done in collaboration with the Gypsy Institute. Reforms of the statutes about the territories in Spain had been carried out and this lent greater visibility and helped to protect the rights of the Gypsy community in the various territories.

Mr. Blazquez pointed out that the Gypsy community, which was a significant component of the Spanish population, benefited from several programmes to provide them with adequate housing facilities and many of them now owned their own homes and enjoyed other social services. Access to healthcare and education for the gypsy community had also been improved and the State was committed to revising these measures in order to make the general living conditions of this minority population as comfortable as possible.

ANGEL SANTAMARIA, Technical Assistant of the Cabinet in the Ministry of Education, underlined the legal provisions which had been established to improve on the basic education process for the Gypsies and all other minority communities in Spain. Resources had also been allocated to close the gap, especially for children who did not have Spanish as their mother tongue. There was no significant evidence of discrimination in relation to access to education against minority groups. There was equally a curriculum act which addressed the issues of citizenship and the common values which defined and made up a democratic state.

Questions Raised by the Rapporteur and Experts

JOSE FRANCISCO CALI TZAY, Committee Expert serving as country Rapporteur for the report of Spain, noted with regret that in preparing its report the State did not consult with the ombudsman or with regional human rights commissions and other members of the civil society. Mr. Cali Tzay asked about the legal framework banning racial discrimination and how citizens from countries with whom Spain had no formal agreements were treated with regards to their rights within Spanish territory.

He highlighted articles in the Convention which governed extermination of a particular race, and asked for more information about how these articles were effectively applied. Mr. Cali Tzay wondered whether there existed any legal instruments governing racism related to torture and ill treatment of aliens by State police and other administrative authorities. He asked the delegation to examine the incompatibility of the law governing immigration with the provision of the Convention. He recalled that certain Spanish police unions were given specific orders to set up road blocks to check identification papers in areas where immigrants were predominantly resident and asked the delegation to comment on this practice.

Regarding the committee that the State would set up to monitor the application of the National Human Rights Plan, the Rapporteur asked the delegation to provide subsequent information to the Committee on the progress made.

Mr. Cali Tzay commented on the gap that existed between the Arab and the Spanish community and the ensuing xenophobic attitudes as seen in various xenophobic graffiti propagated by a certain political party and asked why this was not prohibited. There were several other cases of crimes whose perpetrators received less severe sentences because racism was not considered a solid ground for a severe punishment and asked why such racial utterances were predominant in the Spanish press.

Mr. Cali Tzay went on to discuss the issue of human trafficking and the incidence of unlawful presence within the State’s territory and asked for the delegation’s clarification on how these two issues should be viewed. He also noted that the delegation did not provide any data about the exact demographic composition of immigrant and other minority communities, apart from the Gypsies, as well as that relating to cases of discrimination as a whole and asked the delegation to explain why such data was missing.

The delegation was asked to clarify the legal provisions for detaining aliens in special internment centres as well as the specific living conditions in those centres. The delegation was requested to convey the State’s position regarding the creation of more shanty towns in the country and what kind of impact this would have on the Gypsy community. He also requested more information about efforts the State was taking in order to change the mindset of members of the Gypsy community who were seemingly not interested in the education of the girl child.

An Expert underlined that the availability of demographic data as requested by the Rapporteur would help foster a more appropriate and effective fight against acts of discrimination, especially those targeting a given group. The Expert said that the presence of an ombudsman at the national level to defend victims of discrimination was a commendable development, but asked the delegation to explain how the cases of discrimination were addressed at the regional level.

Another Expert commented on the range of action plans geared towards protection against racial discrimination and asked the delegation to provide an evaluation of their effectiveness thus far. They asked the delegation about the employment practices of bar, restaurant and nightclub owners with regards to racial discrimination. The Expert highlighted the lack of data regarding complaints of racial discrimination against police and asked the delegation why it had not accepted the Committee’s recommendations made in that respect.

Regarding education of migrants, the Expert expressed concern about the sociological approach to racism on the grounds of the cultural superiority of some groups and asked the delegation what prospects were envisaged to combat that new form of racism. Another question raised by a Committee Member concerned the issue of freedom of movement which had become more and more fundamental. They asked the delegation if legislative measures had been envisaged to target people moving from Africa into Europe. Experts also asked the delegation to comment on the seemingly permanent hate speech based on racial background prominent within the football milieu and especially propagated by Spanish football fans.

Remarks by Civil Society Organizations

A speaker representing the Ombudsman for Human Rights said that this office had not been accorded an active role in Spain’s activities in the realm of racial discrimination and ask that the State consider engaging the Ombudsman in future activities. The speaker said the lack of data on incidents of racial discrimination could be attributed to the fact that those involved in violations of human rights did not realize that their acts were racially motivated. The speaker said one of the most important issues regarding racial discrimination was that despite complaints from foreign citizens about police systematic identification controls the State did not give clear information on the issue. The circular governing this issue was confusing on how it should be implemented because it allowed for a person to be detained on security grounds even when that person was known to have proper identification. The speaker stressed that the circular was open to interpretation given that the legal framework defining reasons for detention on criminal or preventive grounds was ambiguous. It still appeared that systematic police checks of identification papers were conducted purely on the basis of national origin and racial background.

The speaker said the ombudsman constantly visited homes where aliens were held in order to verify their living conditions and other basic rights. It was noted that repatriation for Moroccans in particular did not respect certain procedures such as the right to enter appeals and seek international protection.

The speaker said there had been a continued investigation into the use of racist and xenophobic attacks via the internet and supported the State’s efforts in eliminating incidents of racism and xenophobia.

Response by Delegation

The delegation informed the Committee that a majority of the action plans initiated to eliminate racial discrimination, xenophobia and other acts of racism had been implemented, the follow-up commission was working on the evaluation of the process put in place, and the results would be published on the website later.

Regarding the treatment of minor and unaccompanied children, the delegation indicated that the children in question were returned to the country of origin only when it was necessary, otherwise they would be awarded the right to stay in Spain.

Regarding questions about equal treatment of immigrants and Gypsies in education, the State had enacted legal provisions which guaranteed the equal treatment of school age children and this applied to private and public schools in the whole territory. There was a committee monitoring the strict application of this provision and parents were encouraged to apply to the school of their choice and the admission procedure had to be carried out under transparent terms. In certain regions there existed an autonomous admissions board which received applications and later distributed the children to the various schools in an unbiased manner. Specific measures were taken for children of Gypsy origin and immigrants in order to provide further transparency and conditions to speed up the integration process of this group.

Responding to questions about social policy in relation to the Gypsy population and unaccompanied minors, the State ensured that they received the same treatment as people of Spanish nationality. As such, the minors were sent to an open minor centre which offered basic education and healthcare. Regarding the question of the right to housing for the Gypsy population, the delegation said some 88 per cent of Gypsies lived in standardized housing and the State wished to continue efforts to increase the percentage until the whole Gypsy population was covered. A budget of about €3 million had been earmarked to deal with that issue. Gypsy women and girls were given special attention in order to guarantee their effective economic and social rights. There had been significant progress in the education of Gypsy girls and the latest teacher evaluation said that girls had test scores twice as high as boys.

Regarding female victims of gender violence, the delegation said the State was very concerned with this matter and foreign women had been placed on the priority position in all the general efforts to halt that practice. Since 2005, most victims of gender based violence had been allowed temporary residence in Spain and there was no case of expulsion of women of that category so far.

Concerning the issue of the reversal of burden of proof for those who suffered racial discrimination and sought redress, the delegation underlined that in civil trials and administrative issues where the victims’ allegations suggested instances of racial and ethnic discrimination, Spanish law required the accused to prove that he or she acted in a correct and acceptable manner. The delegation said the European Tribunal for Human Rights granted this rule of the burden of proof. The State would take initiatives to expand this burden of proof to cover all areas.

Regarding the protection of equal treatment and the promotion of equal rights, the State was prepared to supply further information to the Committee on the bill that it had enacted and implemented and on the progress of that process.

Addressing issues regarding the Ministry of Interior, the delegation said the police corps never used ethnic profiling in their work and there had never been any instructions to systematically check identification documents based on race, country of origin, or other discriminatory grounds. Most of the activities of the police in that respect were based on preventive and security reasons and care was taken to respect the stringent prescriptions of the rules.

The delegation explained that the detention period for migrants in holding centres was never more than 60 days. When this did happen a new court order was needed to extend the period and that was usually due to the length of the legal procedure. The detained persons had the right to contact non-governmental organizations and other immigrant protection bodies to ensure their rights to healthcare and other social services. Detainees were guaranteed adequate living conditions and the ministry in charge was committed to improving these conditions. Any State official guilty of violating the rights of the detainees was subject to punishment. The delegation did not have all the figures for people in the internment centres, but it could supply these to the Committee at a later stage.

Brazilian citizens were not subject to a particular policy and the return of several of them was due mostly to the fact that they could not give any concrete reason as to the aim of their visit. The delegation stressed that a lot of foreigners used Spain as a port of entry into Europe and usually did not meet all the requirements in force even if a visa had been issued. These requirements were in line with the European Union’s directives and as a member state Spain was committed to strictly complying with the regulations. However, delegation emphasized that only about 1 per cent of people seeking entrance were repatriated.

Regarding xenophobic language and its propagation in Spain, the delegation said it was disgusting and the State made no effort to hide this issue.

The delegation reiterated that there had been several convictions for hate and racially motivated crimes and those guilty had been severely sanctioned. The delegation explained that this was a novelty because crimes were previously not subject to punishment. The delegation expressly acknowledged the presence of a problem and said the State had set up plans and organs to address the issue.

The delegation explained that the number of foreigners in prison reflected the fact that foreigners were mainly male and young and this was a group that was more disposed to committing crimes. The delegation said it chose to look at the sex of the criminals rather than their race or country of origin. It was important to note that these crimes had to be dealt with against the backdrop of drug trafficking.

Regarding the issue of rejecting the international body in dealing with complaints against the police, the delegation said the State had an independent body which was dedicated to carrying out these investigations and did so in a transparent and objective manner.

Further questions and comments by Experts

Citing several incidents of aggressive racist language directed at foreign black sportsmen by fans and other major actors in football and racing, an Expert asked the delegation to shed more light on actions taken to eliminate the prevalence of racist language and offences in the realm of sport. The Expert asked the delegation to explain why Brazilians were repatriated at the airport when they did not need visas to enter Spain. The Expert also asked the delegation why it had taken the State up to 19 years to redress the discriminatory act perpetrated against Ms. Rosalind Williams.

An Expert asked the delegation to inform the Committee if there were statistics on the number of prisoners classified under national origin. Another Expert asked what the attitude of the Spanish people was on the issue of racism.

Response by delegation

The delegation said that the State was very aware of the importance that sports played in the realm of integration of foreigners in Spanish society. There had been legal provisions aimed at eliminating and punishing racism in sports and certain conduct perpetrated by those taking part, involved in organizing a sports event and the general public. The delegation told the Committee that since the law went into effect in 2007 there had been a significant decrease in offences of racist behaviour at sporting events.

The delegation said that Spanish legislation took into consideration European Union directives especially those concerning the right to free movement of immigrants. Spain recognized the rights of all immigrants, except the right to vote and to nationality.

The delegation said the State had not taken 19 years to issue an apology to Ms. Williams for undue detention because she had suspended the procedure herself after several courts did not agree with her. The State had complied with the international recommendations and that was why it had issued an official apology to Ms. Williams.

The delegation said it was prohibited to reserve the burden of proof in Spain and said it was up to the judge or courts to determine whether tests conducted to determine racial acts were acceptable or not. Tests had been used in the past as evidence but not due to a particular practice.

At the moment, the delegation said there was no disaggregated data on the prison population broken down by national origin, but it promised to this at a later date.

The delegation further explained that there was a shift in the attitude of Spaniards, especially among young people, from tolerance to a critical perspective. However, this critical or negative view was more concerned with the possibilities of employment and other social services.

Preliminary Concluding Observations

In preliminary concluding remarks, JOSE FRANCISCO CALI TZAY, the Committee Expert serving as country Rapporteur for the report of Spain, thanked the delegation for their numerous replies to the questions raised. He said this showed the interest of the Committee in having a dialogue in order to better understand the situation of the State under examination. He expressed satisfaction about the numerous measures which had been initiated to address the issue of racial discrimination, especially with regards to the Gypsy community. He expressed concern about the very low level of education of women in general and particularly of Gypsy girls. He welcomed information that female victims of sexual abuse were not deported, but he expressed concern about how the State treated unreported cases of rape committed against undocumented women who were afraid of being deported.

Mr. Cali Tzay asked the delegation to give serious consideration to racist jokes and insults which were said to be common in Spain and develop appropriate action against them so that those targeted did not feel attacked and discriminated against. Regarding the case of Ms. Williams, Mr. Cali Tzay noted the delegation’s assertion that it was not a policy to discriminate on the grounds of race and drew the attention of the delegation to the case of a Canadian citizen of Ghanaian origin who had been subjected to racist insults and physical abuse. He had been physically assaulted and expelled although he had been invited to attend a conference in Spain. He encouraged the delegation to undertake the proper collection of data in order to have a clear view of the situation and encourage people to report cases of racial discrimination.

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