UN SPECIAL RAPPORTEUR ON HUMAN RIGHTS AND COUNTER-TERRORISM CONCLUDES VISIT TO SPAIN

14 May 2008

The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Martin Scheinin, issued the following statement today, highlighting his preliminary findings during a press conference held in Madrid.

Introduction

The Special Rapporteur conducted an eight-day mission to Spain. The purpose of the mission, conducted at the invitation of the Spanish Government from 7 to 14 May 2008, was to undertake a fact-finding exercise and a legal assessment of Spain’s law and practice in the fight against terrorism, measured against international law, and considering the impact of counter-terrorism laws, policies and practices, including issues regarding investigation, detention, arrest and trial of terrorist suspects, the rights of victims of terrorism and persons negatively impacted by counter-terrorism measures. His approach to country visits is also aimed at identifying and disseminating best practice in the countering of terrorism. Following this visit, a full report, which will become publicly available, will be prepared and submitted to the Human Rights Council, a subsidiary body of the UN General Assembly.

The Special Rapporteur met with the Minister for Foreign Affairs, Mr. Miguel Angel Moratinos Cuyaubé and the Minister of Justice, Mr. Mariano Ferndández Bermejo. The Special Rapporteur had meetings on a specialist level with the Ministry of Foreign Affairs, Ministry of Interior, Ministry of Justice, the Ministry of Defence, the Presidency of the Government, the Ombudsman, members of Parliament and members of the Judiciary, including the President of the Supreme Court who also serves as the President of the General Council of the Judiciary and the President of the Audiencia Nacional. The Special Rapporteur visited the Soto del Real detention facility, where he was able to conduct confidential interviews with detainees suspected of terrorist crimes, and the Audiencia Nacional where he observed ongoing judicial proceedings. In the Basque Autonomous Community, Mr. Scheinin visited San Sebastián, Bilbao and Vitoria-Gasteiz, and met with Mr Juan José Ibarretxe, the President of the Government of the Basque Autonomous Community, as well as the Councillor of Justice, the Councillor of the Interior, the Ombudsman, the Human Rights Director and the delegate of the Spanish Central Government. He also visited the Basque Parliament. Both in Madrid and in the Basque Country he met with lawyers, academics, victims of terrorism and non-governmental organisations.

Terrorist threats in Spain

The Special Rapporteur is mindful of the tragic incidents of domestic and international terrorism that have had devastating effects in Spain. The long history of ETA (Euskadi Ta Askatasuna) terrorism primarily in the Basque Country, and the bomb attacks in Madrid on 11 March 2004 are graphic illustrations of the inexcusable nature of terrorist violence. During his visit, the Special Rapporteur was moved by his meetings with victims of terrorism and their families, as well as by an exhibition at the Basque Parliament dedicated to victims of terrorism.

The Special Rapporteur is mindful of the dark pages of Spanish history when the state itself during the Franco dictatorship resorted to methods that can be classified as terrorism, or when the Grupos Antiterroristas de Liberación (GAL) in the aftermath of the turn to democracy resorted to methods of terrorism in the name of countering terrorism. In the view of the Special Rapporteur, acts of terrorism, including those by ETA, amount to the destruction of human rights.

For nearly four decades Spain has struggled with the terrorist activities carried out by ETA, whose proclaimed political goal is self-determination for the Basque Country, a goal that is advocated also by political parties or other organizations that have nothing to do with terrorism. The Spanish Government has fought ETA terrorism through both law enforcement and judicial operations, which have, to a great extent, weakened the impact of the organization. ETA however, is still considered an ongoing threat, which affects not only the Basque Country, but the entire nation. After efforts to initiate a peace process between the Spanish central authorities and ETA broke down in 2007, the organization has returned to violent activities and announced its responsibility for 11 attacks during the four first months of 2008, including the death of one person. Spanish authorities told the Special Rapporteur that not only is the military branch of the organization perceived as a serious terrorist threat, but that the fight against ETA necessarily has to include all of its network, including political, social and grassroots organizations as well as media enterprises. The Special Rapporteur was informed that activities by such organizations are perceived as being closely linked to ETA, as they are promoting the goals of the terrorist organization through the provision of financial and material support as well as by altering the public order through violent demonstrations and threats against persons not agreeing with ETA’s aims or means.

Since the beginning of the 1990s, and in particular following the tragic events of 11 March 2004, Spain has strengthened its efforts against international terrorism. Due to repeated references to Spain by Al-Qaida leaders during last years and the development of what was described to the Special Rapporteur as self-radicalized Islamist terrorist cells inside Spain, their threat is perceived as constituting an ongoing danger. In addition Spanish authorities give regard to radical cells linked to Al-Qaida that operate outside the Spanish territory, mainly in Morocco and Algeria. The Special Rapporteur notes that, in general, Spanish authorities do not link the threat of international terrorism to illegal or legal immigration, while remaining aware of the risk that terrorist organizations may take advantage of immigrant communities as a ground for recruitment.

Spain’s international role

Within the United Nations and elsewhere Spain has an important role in the global fight against terrorism. The Madrid Summit of 2005 and its contribution towards the General Assembly’s 2006 Global Counter-Terrorism Strategy as well as the initiative Alliance of Civilizations represent important phases in that process. On the international level Spain has endorsed the imperative of respecting human rights while fighting against terrorism, both as an end in itself and as a key factor for the efficiency of action against terrorism. The Special Rapporteur identifies Spain’s active role on the international level a best practice and calls upon Spain to maintain that role, including through initiatives for further improvements of the UN terrorist listing and delisting procedures to bring them into line with human rights and due process.

Definitions of terrorist crimes

Many of the meetings during the visit focused on how terrorist crimes are defined in Spanish statutory law and judicial practice. Referring to his earlier work in the issue (see, in particular E/CN.4/2006/98), the Special Rapporteur once again emphasizes that the successful fight against terrorism requires strict adherence to the requirement of legality enshrined in article 15 of the International Covenant on Civil and Political Rights (ICCPR), so that all elements of the crime are in explicit and precise terms encapsulated in legal definitions of terrorist crimes. Underlining the centrality of deadly or otherwise serious physical violence against members of the general population or segments of it as a defining element of terrorist crimes, the Special Rapporteur warns against broad and vague definitions that ultimately undermine the strong moral message inherent in strict definitions based on the inexcusable nature of every single act of terrorism. Legitimately, and in compliance with international and European treaties against terrorism, Spain has criminalized not only terrorist violence itself but also associated crimes such as the financing of terrorism or incitement to terrorism.

After a careful examination of the law and evolving practice of defining terrorist crimes in Spain, the Special Rapporteur highlights at the end of his country visit two preliminary conclusions:

a) Article 571 of the Penal Code, defining the objective elements of terrorist crimes, is in the Special Rapporteur’s view based on a proper understanding of the phenomenon of terrorism and of the requirement of legality.
b) Other provisions of the relevant section of the Penal Code (articles 572-580), including the reference to “any other crime” in article 574, the notion of “collaboration” in article 576 and the amended provision of article 577 on street violence, however, carry the risk of a “slippery slope”, i.e. the gradual broadening of the notion of terrorism to acts that do not amount to, and do not have sufficient connection to, acts of serious violence against members of the general population.

The Special Rapporteur calls the attention of Spanish authorities to the latter finding, especially because of the existence of multiple factors that in the context of Spain highlight the risk of a “slippery slope”: the classification of crimes as terrorist ones triggers the application of incommunicado detention, replaces the jurisdiction of the territorial criminal court by the jurisdiction of the Audiencia Nacional, a specialized court with nationwide jurisdiction, and results in aggravated penalties and often also modifications in the rules related to the serving of sentences. As many recent high-profile prosecutions are pending before the Audiencia Nacional or subject to review by the Supreme Court, the Special Rapporteur will not at this stage comment upon the application of articles 571-580 of the Penal Code in these cases. However, he is aware of vocal criticism against a trend of broadening the scope of practical application of these provisions by the Audiencia Nacional. Mindful of the double risk of such a trend resulting both in compromising the requirement of legality enshrined in ICCPR article 15 and undermining the legitimacy and hence efficiency of the fight against terrorism, the Special Rapporteur calls upon the Spanish Government to initiate a process of independent expert review over the adequacy of the current definitions.

In his final report on the country visit, to be prepared in consultation with the Spanish authorities, the Special Rapporteur will make proposals concerning the methodology of such a process of expert review and offer his own detailed comments on the existing definitions under Spanish law.

The framework of human rights law

None of the authorities the Special Rapporteur met with made any reference to arguments that would deny or reduce the applicability of international human rights law in respect of counter-terrorism measures by Spain. In particular, no reference was made to the existence of an armed conflict or a state of emergency as excuses that might result in derogation from human rights law. Furthermore, both national police authorities (the National Police and the Civil Guard) explicitly excluded the use of a necessity defence or analogous arguments as justification for the use of methods of interrogation that by way of exception would depart from Spanish law or international standards. The Special Rapporteur underlines the importance of an unconditional commitment by all authorities to the principle that terrorism must be combated within the framework of the law, including human rights law.

The Special Rapporteur appreciates the assurances given by his interlocutors that Spain is currently not engaged outside its national territory in any activities that would violate human rights, and does not allow the use of its territory for such acts. However, it was acknowledged that Spanish consular and intelligence authorities in 2002 were present in the interrogations of a number of persons detained in Guantánamo Bay, including one Spanish national and one Moroccan legally residing in Spain. Subsequently two persons were brought to trial in Spain. In this regard the Special Rapporteur welcomes the recent decision by the Audiencia Nacional to dismiss the charges as any information obtained in Guantánamo interrogations is inadmissible as evidence in any type of judicial proceedings. The Special Rapporteur also received information related to Spain’s involvement in the CIA programme of extraordinary renditions and is aware of a judicial investigation that is underway as to the use of Spanish airports in the transfer of terrorist suspects. The authorities informed the Special Rapporteur that such flights had in fact landed at Spanish civilian airports in 2004, stating that no evidence of human rights violations had been established in relation to these incidents. The Special Rapporteur stresses the obligation of the state to conduct proper and thorough investigations into the case and awaits with interest the results of the judicial investigation in the matter. He recalls that the practice of extraordinary renditions on its own amounts to a human rights violation as arbitrary detention, enforced disappearance or inhuman, cruel or degrading treatment.




Prohibition against torture and other forms of inhuman, cruel or degrading treatment

The Special Rapporteur calls for increased vigilance in implementing Spain’s commitment to the eradication of torture. Mindful of the widespread use of torture and other forms of cruel, inhuman or degrading treatment by authorities during the Franco dictatorship, the Special Rapporteur expresses his concern over the fact that allegations of torture or other forms of ill-treatment continue to be made by terrorism suspects and do not systematically result in rapid and thorough independent investigations. The Special Rapporteur sees this situation as delegitimizing the Government’s fight against terrorism among those segments of Spanish society that would most need to be convinced of the genuineness of the central Government’s dedication to zero tolerance of torture.

Against this assessment, the Special Rapporteur identifies further measures against torture or ill-treatment as a priority in the improvement of Spain’s framework of counter-terrorism. During the visit the Special Rapporteur was informed of recent positive developments, such as the so-called “Garzon protocol”, applicable in cases where the detainee is held in incommunicado detention. The protocol encompasses a system of oversight through constant video-surveillance of police detention facilities and interrogation rooms, examinations by forensic doctors of the detainee’s own choice as well as the possibility to receive visits by family members. The Special Rapporteur welcomes these measures but is aware, however, that the protocol has not yet been systematically implemented. It is applied only through judicial decision in an individual case and hence, by definition, in many cases not from the moment of arrest. Further, only some of the Audiencia Nacional judges apply the protocol. As an element of best practice, the Special Rapporteur learned that incommunicado detention has been practically eradicated in cases where the Basque autonomous police forces detain terrorism suspects and apply more advanced protocols adopted by the relevant Basque authorities.

The Special Rapporteur calls for the complete eradication of the institution of incommunicado detention. This step, proposed, inter alia, by the Human Rights Committee in 1996 (CCPR/C/79/Add.61) and the Special Rapporteur on Torture in 2003 (E/CN.4/2004/56/Add.2) would strengthen the credibility of counter-terrorism measures by the law enforcement bodies as a whole and would at the same time further assure that those falsely accused of ill-treatment of terrorism suspects could be cleared.

Measures related to the Madrid 2004 bombings and international terrorism

The Special Rapporteur welcomes the statements by his interlocutors that the terrorist acts of 11 March 2004 have not resulted in xenophobic reactions among the Spanish population. However, the Special Rapporteur was informed by lawyers and NGOs of incidents of inappropriate treatment of Muslim detainees, including disrespect for their religious beliefs and practices. The penitentiary authorities admitted to the Special Rapporteur that such instances of improper conduct by prison officials have occurred, and assured that authorities are aware of the counterproductive consequences of any discrimination or unprofessional behaviour. The Special Rapporteur welcomes and encourages the willingness of the Government to initiate human rights training within the penitentiary system.

The Special Rapporteur received detailed information on the practical challenges of organizing the multi-accused trial concerning the March 2004 Madrid bombings. While being mindful of the fact that appeals are still pending, the Special Rapporteur notes that many features of the trial phase could serve as best practice in organizing the criminal trial of a major act of international terrorism.

Despite this highly pertinent information concerning the actual M-11 trial, the Special Rapporteur is mindful of particular difficulties encountered by the defence in the preparation of the trial. It was preceded by months or years of pre-trial detention during which time court-appointed lawyers were in practice unable to provide any assistance to their clients due to a number of factors: the secrecy of the investigation, the dispersal of the detainees to different parts of the country, the inadequacy of compensation of travel costs and the unavailability of independent interpretation services as part of the legal aid system for meetings between lawyer and client.

The Special Rapporteur was provided with statistics compiled by the penitentiary authorities according to which 120 persons in pre-trial detention or serving their sentences are categorized as “Al-Qaida”. Having met with two persons in this category during his visit to the Soto del Real detention facility, the Special Rapporteur calls for the reconsideration of such a classification.

During his visit to Spain the Special Rapporteur learned about a case concerning a Chechen possibly facing extradition to Russia for crimes of terrorism. While the Special Rapporteur acknowledges that formal assurances have played a useful role in respect of the death penalty where the executive authorities of the receiving country can commit themselves to not asking for capital punishment and their compliance with the assurances will be controlled through a public trial, there is widespread agreement that diplomatic assurances do not work in respect of the risk of torture or other ill-treatment. The Special Rapporteur notes with surprise that Audiencia Nacional appears to have combined traditional death penalty assurances in the pending case with the condition that the UN Committee Against Torture will be able to send a delegation to visit him. Mindful of the fact that CAT does not conduct such visits and of the inadequacy of assurances in respect of the risk of torture, the Special Rapporteur proposes that the Government seeks a new judicial opinion if it wishes to pursue the extradition of the individual in question.

The right to review by a higher court

All persons convicted of a crime have, pursuant to article 14, paragraph 5, of the ICCPR, a right to have their conviction and sentence reviewed by a higher court. According to established Human Rights Committee case law under this provision, cassation review by a higher instance, limited to issues of law, is not sufficient for compliance with the ICCPR. Because of terrorism cases in Spain are heard exclusively by a single court, the Audiencia Nacional, and the role of the Supreme Court is traditionally limited to issues of law, the existing mechanisms of review by a higher court appear to suffer from a structural deficiency. The Special Rapporteur is mindful of judicial and legislative measures taken by Spanish authorities to reach compliance with ICCPR article 14 (5). Nevertheless, he wishes to point out that the problem remains valid in respect of major pending terrorism-related cases with dozens of accused or convicted persons. The Special Rapporteur requests the Spanish Government to give consideration to the possibility of including terrorism crimes in the jurisdiction of ordinary courts, instead of a single central specialized court (Audiencia Nacional). This would correspond to the principle of normalcy and address terrorism as a crime, rather than an emergency calling for departure from standard procedures. The Special Rapporteur believes that transferring jurisdiction for terrorism crimes to ordinary courts with territorial jurisdiction would enhance the legitimacy of Spain’s fight against terrorism and add to its efficiency.

Victims of terrorism

Mindful of the fact that terrorist attacks cause widespread suffering and grievances throughout the society, the Special Rapporteur notes that Spanish authorities have undertaken a number of legislative and administrative measures in order to properly address, through material, legal and psychological assistance, the situation faced by victims of terrorism, including victims of violent attacks carried out by ETA, victims of international terrorist acts and victims of GAL in the 1980s. Proper consideration given to those who individually, or collectively, have suffered harm, is an essential measure in order to further good community relations. Spanish authorities highlighted that annual ceremonies are organized to pay tribute to the victims of the Madrid bombings of 2004. The Special Rapporteur stresses the highly important value of human rights education and the fostering of tolerance and solidarity within the society as a means of avoiding conditions conducive to the spread of terrorism.

Acknowledgements

The Special Rapporteur appreciates the cooperation of the Government of Spain. He also thanks all his interlocutors for sharing their insights and ideas.

For further information or questions please contact the Special Rapporteur's assistant Ms Sonia Cronin at the Office of the High Commissioner for Human Rights at +41 22 917 9160 or by email: scronin@ohchr.org

Mr. Scheinin accepted the appointment of Special Rapporteur by the United Nations Commission on Human Rights on 7 August 2005. The mandate, established by Resolution 2005/80, was renewed by Resolution 6/28 by the Human Rights Council. The Special Rapporteur is mandated to develop a regular dialogue and to cooperate with all relevant actors, including Governments, to exchange information, make recommendations and to identify and promote best practices on measures to counter terrorism that respect human rights and fundamental freedoms. As Special Rapporteur, he is independent from any Government and serves in his individual capacity.

He is a Professor of Constitutional Law and International law and Director of the Human Rights Institute at Åbo Akademi University in Turku, Finland.