In dialogue with Spain, Committee on Enforced Disappearances asks about draft law on democratic memory and about incommunicado detention

17 September 2021

The Committee on Enforced Disappearances today concluded its consideration of the report of Spain on measures taken to implement the provisions of the International Convention for the Protection of all Persons from Enforced Disappearance.  Committee Experts asked about draft laws currently in the process of approval, also raising the issue of incommunicado detention. 

Ms. Aurora Díaz-Rato Revuelta, Permanent Representative of Spain to the United Nations Office at Geneva and head of delegation, introducing the report, said that all the modalities of the crime of enforced disappearance were covered by the Spanish Criminal Code.  The code did not expressly use the term "enforced disappearance" because historically, that crime had been configured as an aggravated form of other crimes against liberty: illegal detention and abduction.  With regard to the concept of victim of the crime of enforced disappearance, she said a distinction was made between "direct victims", meaning the disappeared person, and "indirect victims" such as the victim’s spouse, children, parents, other relatives, and others close to them. 

Incommunicado detention, as it was currently configured, did not constitute secret detention, she underscored.  Rather, it constituted temporary restriction, under judicial authorisation and control, of the rights recognized in Article 18 of the Convention, on deprivation of liberty.  According to law, incommunicado detention should be exceptional and could only be approved when there was an urgent need to avoid danger to the life, integrity or physical integrity of a person or there was an urgent need to avoid seriously compromising the criminal proceedings.  Spain’s draft law on democratic memory was approved by the Council of Ministers, but the bill was under parliamentary discussion.  The draft law was based on the principles of truth, justice, reparation and guarantees of non-repetition.

Committee Experts asked about the statute of limitations on enforced disappearances, and whether it was applied in the case of missing minors.  Which persons came under the category of victims of enforced disappearance was also a theme for the dialogue.  The Committee was further concerned about the rights of persons held incommunicado.  Did Spain have a national register centralising all the genetic data information?  It would be appropriate to organise data in such a manner to assist the victims who suffered enforced disappearances, Committee Experts noted. 

The delegation of Spain consisted of representatives of the Ministry of Justice; the Ministry of Defense; the Ministry of the Interior; the Ministry of the Presidency Relations with the Courts and Democratic Memory; the Ministry of Foreign Affairs, the European Union and Cooperation; and the Permanent Mission of Spain to the United Nations Office at Geneva.

The Committee will issue its concluding observations on the report of Spain at the end of its twenty-first session on 24 September.  Those, and other documents relating to the Committee's work, including reports submitted by States parties, can be found on the session's webpage. 

The webcast of the Committee's public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 3 p.m. on Monday, 20 September to hold its dialogue with France. 

Report

The Committee has before it the report of Spain containing additional information under article 29 (4) of the Convention (CED/C/ESP/AI/1).

Presentation of the Report

AURORA DÍAZ-RATO REVUELTA, Permanent Representative of Spain to the United Nations Office at Geneva and head of delegation, introducing the report, said that Spain intended to engage in a fruitful dialogue with the Committee.  The meeting was an opportunity to exchange information and experiences, and to seek advice and answers.  In her opening remarks, she would be outlining the report submitted to the Committee as well as updating the information submitted.  All the modalities of the crime of enforced disappearance were covered by the Spanish Criminal Code.  Enforced disappearance was foreseen as a crime in the criminal code.  Spain’s penal code on crimes against the international community expressly punished enforced disappearance that occurred as a crime against humanity, that was to say, as part of a widespread or systematic attack against the civilian population or against a part of it.

The reason Spain’s criminal code did not expressly use the term "enforced disappearance" was because historically, that crime had been configured as an aggravated form of other crimes against liberty: illegal detention and abduction.  The penalty for the crime of enforced disappearance ranged from 12 years and 6 months of imprisonment to 22 years and 6 months of imprisonment, and could reach up to 30 years of imprisonment in some aggravated cases.  Spanish authorities were firmly committed to ensuring that all requests for judicial assistance that were received were processed swiftly.

With regard to the concept of victim of the crime of enforced disappearance, she said a distinction was made between "direct victims", meaning the disappeared person, and "indirect victims" such as the victim’s spouse, children, parents, other relatives, and others close to them.  Victims had a right to receive information on compensation available to them and the procedures for claiming such compensation.  Victims' Assistance Offices were a public service providing comprehensive assistance and care to victims, confidentially and free of charge.   

Incommunicado detention, as it was currently configured, did not constitute secret detention, Ms. Díaz-Rato Revuelta underscored.  Rather, it constituted a temporary restriction, under judicial authorisation and control, of the rights recognized in Article 18 of the Convention, on deprivation of liberty.  According to law, incommunicado detention should be exceptional and could only be approved when there was an urgent need to avoid danger to the life, integrity or physical integrity of a person or there was an urgent need to avoid seriously compromising the criminal proceedings.  The principle of non-refoulement applied to all return procedures, she said.  Any foreign national who had a well-founded fear of facing a real risk of suffering serious harm, could apply for international protection which would grant him or her the right not to be returned. 

Spain’s draft law on “democratic memory”, which the Committee had included on its list of issues, had been approved on 20 July by the Council of Ministers, Ms. Díaz-Rato Revuelta said.  The draft law was based on the principles of truth, justice, reparation and guarantees of non-repetition, and took into account the recommendations of the Committee, of the Rapporteur for the promotion of the principles of Truth, Justice, Reparation and Guarantees of Non-Repetition, and of the Working Group on Enforced Disappearances.  All civil society organisations and individuals who wished to participate had had an opportunity to point out main objectives for that legislative initiative, she said, and last year, a preliminary draft was approved by the Council of Ministers.  The bill was currently under parliamentary discussion. 

Questions by the Committee Experts

A Committee Expert expressed concern about the absence of the term “enforced disappearance” as a crime against humanity in Spanish legislation.  Why was there no specific punishment for the crime of “enforced disappearance”? Did military jurisdiction in Spain cover crimes against humanity, including enforced disappearances?  What was the situation around children whose parents were in prison?   

A Committee Expert asked for more information on cases of enforced disappearances.  How did legal authorities calculate the statute of limitations on enforced disappearances?  How did Spain guarantee penalties and investigations despite time elapsed?  The Committee had received information about limited access to documentation and additional relevant information to ensure that the search for the disappeared could be carried out comprehensively, impartially and in line with the truth of the matter.  Was there a plan on how to proceed with the identification of bodies?  How did Spain apply a statute of limitation in the case of missing infants?  Which reparation measures were provided to victims of enforced disappearances?  

Did a person who was not in direct family relation with the person who suffered enforced disappearance also have access to reparation measures, a Committee Expert asked?

Replies by the Delegation

The delegation explained that as regards the definition of a victim, there was no need for a definition of indirect victim.  The Spanish definition was simply broader as regards indirect victims.  Regarding “stolen” infants, or abducted minors, Spain had an overview of the cases.  The calculation of the statute of limitations did not begin because enforced disappearances were considered an ongoing crime, according to Spanish law.  The timeline for the statute of limitations began with the time of death.   

Military courts had no jurisdiction whatsoever to hear cases of enforced disappearance.  The military courts only intervened in the offenses referred to in the military penal code, with one exception, the one spelled out in article 9.2 of that code.  That was a restrictive jurisdiction, provided that the person was a military person, the delegation specified.

On reparations during the dictatorship, there were two laws before the Parliament.  One was at a very advanced stage, and there was also a law dealing with disappeared children.  There was a specific report on statistical data on discovered skeletal remains.  Over the past year and a half, the government had drawn up a set of search plans for investigations.  The State administration and other bodies were involved in the investigation.  A database on so-called stolen children already existed in Spain.  There were articles of law envisaged to correct the names of the graves, and map them properly.  The participation of family members was essential, and many of them had participated in events, such as acts of recognition.  Pedagogical handbooks were planned to be distributed. 

Follow-up Questions by the Committee Experts 

A Committee Expert asked for more information on individuals who were trying to illegally cross the borders of Ceuta and Melilla.  What measures were taken by the State party as per article 16 of the Convention?  How was a person held incommunicado guaranteed their rights as per the Convention?  Was there a specific plan for investigation of enforced disappearances, and if that was the case, what exactly was envisaged in it?  Were financial resources and training provided and granted to the relevant authorities for search and investigation for disappeared persons?

A Committee Expert asked whether there was a national register centralising all the genetic data information.  It would be appropriate to organise data in such a manner as to assist the victims who suffered enforced disappearances.  Was compensation envisaged as part of the draft bill on democratic memory? 

Replies by the delegation 

On people held incommunicado, the delegation emphasised that it was an exceptional measure.  Regarding the democratic memory draft, depending on parliamentary discussion, it might take some time.  Military jurisdiction in Spain was connected to the Higher Court, it was a jurisdictional entity and recognised as forming parts of the state judiciary.  If the military code was analysed in detail, it covered military specific issues only.   

Regarding prevention measures, Spain had established a number of provisions to prevent the danger of enforced disappearances.  Extradition would not be granted when the requesting state could not provide necessary guarantees.  In Ceuta and Melilla, special provisions were taken to secure the borders, respecting all international laws and standards.  Spain’s law on historic memory provided for safeguarding of unidentified skeletal remains.  There were real limitations to the identification process, but Spanish experts were making their best efforts to proceed with their work, despite the difficulties. 

Concluding Remarks 

The delegation thanked civil society for their contributions, and encouraged them to continue to help.  Spain would take all recommendations of the Committee into consideration. 

The Committee thanked the delegation for accepting the challenge of a virtual meeting.  The Committee emphasised its willingness to support Spain in the implementation of the Convention, to work together in to prevent enforced disappearances.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/09/le-comite-des-disparitions-forcees-deplore-que-la-le-gislation

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