禁止酷刑委员会审议西班牙的报告（部分翻译）

禁止酷刑委员会

2015年4月29日

禁止酷刑委员会今日结束审议西班牙关于落实《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》条款情况的第六次定期报告。

西班牙常驻联合国日内瓦办事处代表安娜·玛利亚·梅内德斯（Ana Maria Menéndez）介绍了报告，她强调了西班牙在落实《公约》方面的瞩目进展，尤其是在立法和司法改革上。在委员会提出建议后，强迫失踪和贩运人口被列为独立的罪行。一项关于受害者地位并提供了全面赔偿措施的新法律获得了通过。梅内德斯女士描述了在剥夺自由期间保护人权的措施，着重提到一个关于被警方扣押者的数据库，并强调单独拘留是一种极少使用的例外机制。打击性别暴力与种族主义行为和仇外心理是政治上的优先事项，全国范围内也已设立了50个部门来解决仇恨罪，骚扰、网络欺凌和强迫婚姻也被列罪入刑。一项重要的新法律支持处于非正规状况并曾在西班牙领土内受到性别暴力或家庭暴力的外国妇女，确保她们向当局汇报侵害行为后不会遭到驱逐。

在互动对话期间，委员会专家称赞西班牙把贩运人口和强迫失踪列为独立的罪行并采取了措施加以打击。他们询问了单独监禁和单独拘留的使用情况、监狱过度拥挤的状况和减少关押及拘留场所中自杀与暴力死亡的措施。专家们询问了对加泰罗尼亚13名警卫的赦免情况，他们曾在一起出现误认的案件中被控对一人使用酷刑，这可能违反了《公约》。会上讨论了有报告提到一起对非正规移徙者过度使用武力的案件，特别是在属于西班牙领土的休达（Ceuta）和梅利里亚（Melilla）飞地，还讨论了总体上的庇护和移民程序问题。未成年人拘留中心的状况、西班牙的引渡和强制返回政策、使用审前拘留以及打击暴力侵害妇女的措施也被提及。

梅内德斯女士在总结发言中表示，西班牙代表团的规模反映了《公约》在该国受到的重视。她还感谢西班牙民间社会在审议中发挥的重要作用，包括在起草报告的工作中。

委员会主席克劳迪奥·格罗斯曼指出，代表团可以在5月5日（周二）委员会结束会议前对任何尚未回答的问题提供书面解答。他感谢代表团开展了互动对话。

西班牙代表团包括以下部门的代表：最高法院，宪法法院，外交部，司法部，内政部，卫生、社会服务和平等部，就业和社会保障部下属的移民融入部门，西班牙常驻联合国日内瓦办事处代表团。

委员会将在4月30日（周四）上午10点举行下一次公开会议，开始审议哥伦比亚的第五次定期报告（CAT/C/COL/5）。

报告

西班牙的第六次定期报告可在此查看：CAT/C/ESP/6。

Presentation of the Report

ANA MARIA MENÉNDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, introduced the delegation of Spain which consisted of a large range of experts from various departments, as well as members of the judiciary and the prosecutor’s office. Ms. Menéndez said there had been many important developments in relation to Spain’s implementation of the Convention during the reporting period and since the submission of the report in December 2013. Legislative advances included the ratification of the Optional Protocols to the International Covenant on Economic, Social and Cultural Rights, to the Convention on the Rights of the Child regarding individual communications, and a new law on reform of the Criminal Procedure Act to strengthen procedural guarantees, including the right to defence and to consult a lawyer at any time during detention, and to regulate technological research measures.

Further to the Committee’s recommendation, trafficking in persons had been made a stand-alone crime in domestic legislation. Other relevant anti-trafficking laws included the 2011 Foreigners Law and the 2011 Framework to Protect Victims of Trafficking, while support measures for victims of trafficking included granting them residence permits. The Criminal Code had been amended to create a stand-alone criminal offence of enforced disappearance, an act of torture repeatedly mentioned by the Committee. A new law on the status of victims had also been adopted, which offered comprehensive reparations.

Concerning the protection of human rights during the deprivation of liberty, Ms. Menéndez emphasized that incommunicado detention had been ruled as an exceptional regime that should rarely be used. Judges and security forces had tailored their practices to the exceptional nature of incommunicado detention which resulted in a dramatic decrease in the use of solitary confinement and in the use of incommunicado detention overall; in the last three years it was used in only eight per cent of cases of persons charged with terrorism, and so far in 2015 not at all. There was a new database for people held in police custody. There were awareness-raising campaigns to combat violence against women as well as racism and xenophobia, the latter was strengthened by the law on prohibition of incitement to hatred of minority groups. A National Strategy to tackle racism and xenophobia, approved in November 2011, encompassed the monitoring, recording and investigation of racist incidents and 50 services to tackle hate crimes had been established across the country.

Combatting gender-based violence was a political priority and efforts were enshrined within the National Strategy for the Eradication of Violence against Women 2013 to 2016. Harassment, cyber bullying and forced marriage had been criminalized in a new law. A new law had broadened the list of crimes committed outside of Spanish territory which could be prosecuted by Spanish judiciary to include crimes of violence against women. Another important new law supported foreign women in an irregular situation who had suffered gender-based or domestic violence in reporting the offence in the confidence that she would not be expelled from Spain once she came into contact with the authorities, and would instead be provided with a residence and work permit.

Questions by the Experts

An Expert welcomed the delegation and thanked it for the presentation of the report. He said the Committee, and the Special Rapporteur on Torture, firmly believed that no prisoner should be held in solitary confinement for longer than 14 days. The frequency of incidents of torture was said to have a direct relation to the length of time a detainee was kept in incommunicado detention. Cases of torture were often related to the Guardia Seville, commented an Expert. He noted that the European Committee for the Prevention of Torture visited the State party in 2012, after which it expressed concern that some prisoners had been held in solitary confinement for 28 days and that the law allowed for them to be held for up to 42 days.

Concerning the use of incommunicado detention in relation to terrorism-related offences, an Expert first emphasized that nobody believed terrorism could be justified in any way, shape or form. He recalled the recommendation of the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and asked for more detail on the measures taken to prevent alleged torture and other ill-treatment of terrorist suspects held incommunicado.

The Expert noted the delegation’s remarks that the use of solitary confinement had significantly decreased, but asked how persons held in solitary confinement were monitored and whether CCTV cameras were installed in cells. He also asked how regularly detainees were given medical examinations. The delegation was asked to provide examples of the use of solitary confinement for more than 14 days, the reason for it, and the effect it had on the health of the prisoner concerned.

On the subject of impunity, an Expert said the use of pardon for very serious cases may be in violation of the Convention. He raised the serious case of 13 guards in Catalonia who had received a double pardon after their prosecution for torturing a person. The act of torture was carried out in a case of mistaken identity, as happened in so many cases, he noted. The first pardon of the 13 guards was rejected by the judge so a second pardon was made. To pardon a person convicted of torture was not commensurate with the Convention, said the Expert. He also asked whether, in Spain, there was any single person in prison as a result of being punished for committing an act of torture and whether anybody had been compensated as a result of suffering torture.

Similarly to the majority of States parties to the Convention, Spain had a problem with overcrowding in prisons, said an Expert. He noted that the European Committee for the Prevention of Torture had visited the men’s prison La Modelo from 19 to 22 June 2012, and published its report in April 2013. At the time of the visit La Modelo had capacity for 1,100 but was accommodating 1,781 inmates.

Had the Spanish authorities established a strategy for the reduction of overcrowding, asked an Expert. He also requested an update on the opening of new prisons, including two in Figueres and Taragona, and the opening of the eighth accommodation block at Lledoners Prison, and renovations of other prisons. Only two-thirds of prisons had CCTV video monitoring installed, noted an Expert, asking why this relatively simple and low-cost technology had not been installed in every facility.

The prison population of Spain increased rapidly between 2000 and 2010, from 40,300 to 76,700 inmates, which led to an average occupancy rate of 165 per cent and the largest prison population in the European Union, said an Expert. He asked the delegation what the prison population in Spain was today and how the use of alternative sanctions to imprisonment, particularly for non-violent crimes, was being promoted.

There were a high number of suicides and violent deaths in places of custody and detention, said an Expert and asked about the impact of the framework programme to prevent suicide established by the Director of Penitentiaries in Spain.

An Expert asked about the conditions in detention centres for minors, recalling that in 2009 the Ombudsman of Spain expressed serious concerns and the Committee had made recommendations that the State party refrain from practising solitary confinement and administering drugs without adequate safeguards. How many incidents, such as ill-treatment, had been subject to investigation and what had been done in practice to enable victims to make a complaint?

There was an ongoing problem with law enforcement officials exercising an excessive use of force, particularly in the Spanish territorial exclaves of Ceuta and Melilla. A non-governmental organization on migrants’ rights on 15 and 16 October 2014 filmed the Spanish Guardia Seville beating a Cameroonian irregular migrant who was only identified as ‘Danny’ who was trying to enter the Spanish territory of Melilla. He was injured and subsequently sent to a detention centre for irregular migrants. Five other migrants were injured in the same context that same day. There were also reports of the use of teargas to repel irregular migrants from entering Spanish territories. Were any enquiries made following those reports, asked an Expert.

The Committee had received complaints that individual requests for asylum were not being received by the authorities. The Committee asked about places of detention or ‘holding’ for irregular migrants and raised reports by Amnesty International that it had been prevented from visiting places where undocumented migrants were held. Had Spain considered having CCTV cameras in such reception centres in order to disprove the accusations that living standards there were inadequate, or even inhumane?

How did the Government identify the victims of torture among asylum seekers? The report mentioned three cases, he noted, and asked for more information on those procedures. Spain received around 3,000 asylum applications per year and many scientific studies showed that typically at least 30 per cent of those applicants had been tortured. Therefore just three cases was a very low number, he commented.

Regarding trafficking in persons, an Expert said the Committee was extremely pleased to see that Spain had taken action on its previous concluding recommendations and adopted legislation to make trafficking a stand-alone offence. Now that the legislation was in place, how would Spain seek to implement it, he asked. Did it carry out training programmes for officials and collect disaggregated data on the results? The situation of undocumented, irregular women was often linked to the issue of trafficking, he noted, asking what the specific challenges were in regard to that group.

It was important not only to provide proper training to law enforcement officials but also to assess the effectiveness and the impact of the training. An Expert asked what training had been provided on the rights of asylum seekers and refugees, especially against persons who were deprived of their liberty. Was training provided on the Manual on the Effective Investigation and Documentation of Torture, also known as the Istanbul Protocol? How did the authorities carry out such reviews, in particular with regard to tackling the problem of excessive use of force.

An Expert referred to the situation of Basque prisoners who, even once they had been convicted and were serving their sentence, continued to complain that they suffered humiliating and aggressive treatment and harsh prison conditions, and that they were systematically removed from their family roots.

Concerning historical cases from the Spanish Civil War, an Expert said the approach of the law on amnesty was simply a guarantee for impunity, particularly in cases of enforced disappearance.

Regarding gender-based violence, an Expert asked for an update on the bill to criminalize forced marriage, clamp down on sexual exploitation and forced prostitution, and to better protect the victims of trafficking, as well as assaults on the sexual freedom of minors. He noted the new legislation to protect female foreign nationals from expulsion proceedings in the event that they reported instances of gender-based or domestic violence, and asked what would happen if their claims were not proven in court.

The use of pre-trial detention was raised by an Expert who asked whether the courts were fully aware of the Convention and the principle of ‘bail not jail’. She also asked about allegations of the suppression of public protests.

The use of diplomatic assurances or guarantees was raised by an Expert, who asked in particular about the specific case in 2010 of the return of a person to his country of origin who was afterwards tortured. The Special Rapporteur against Torture interviewed that person himself and found that he had indeed been tortured. He asked for detailed information on all cases of extradition, return or expulsion and the use of diplomatic assurances.

Response from the Delegation

The definition of torture in the Criminal Code was even broader than the definition contained in Article 1 of the Convention against Torture; although all acts of torture were considered a serious crime, the sanction could vary depending upon the degree, said a delegate. The sentence for a crime of torture had been increased from five years imprisonment to between 10 and 15 years. The crime of torture had no statute of limitations if it was considered a crime against inhumanity. Any international treaty signed by Spain would be subsumed by domestic law upon approval by the Senate of Spain, he also noted.

New offences in the revised Criminal Code included offences such as forced marriage, harassment, cyber-harassment, manifestations of racism and xenophobia, sexual abuse, sexual abuse of minors, child pornography and trafficking in persons. Enforced disappearance had been made an autonomous stand-alone crime as recommended by the United Nations Committee on Enforced Disappearances, said a delegate. She also spoke about judicial reform and the provision of training for judges on the Convention against Torture.

Spanish law stated that extradition could not be enforced if a requesting State did not present sufficient guarantees that the individual requested would not be executed or subjected to torture, or cruel, inhumane or degrading treatment, even if the State had granted diplomatic assurances. A delegate described a recent case in which a court ruled that an extradition request for a person accused of a serious crime should be denied. The court stated that although the requesting State had a democratic system and the denial of extradition could lead to impunity, there was a clear risk that the person in question would be subject to an attack on their physical self or integrity, and so refused to grant the extradition request. Furthermore, the Constitutional Court in February this year held that a person may not be expelled if there was a risk they would be returned to the persecuting country or if there was a risk to their life or freedom in general, added a delegate.

The granting of a pardon was a measure of grace dating back to 1870 and did not impact upon the seriousness of the offence, the crime itself nor the guilt of the convicted person. The law on pardons was amended on 30 March 2015, a delegate noted.

A person was only held in incommunicado detention in exceptional circumstances. They were usually to prevent a person, ahead of a trial, from tampering with evidence or witnesses. The right of a detainee to communicate with third parties had not been extinguished and their rights to choose their lawyer and meet privately with their legal counsel were upheld. All detainees were informed in writing, in simple language that they could understand, of their rights and the reason for their detention. The issue of holding minors in incommunicado detention was currently being re-assessed, a delegate noted. Minors held on terrorism charges in incommunicado detention could only be held incommunicado if it was strictly necessary for the success of the investigation. The right to habeas corpus was an expressed right of any detainee, the delegate added.

Under the National Human Rights Action Plan, a new database had been created which compiled data on persons held in detention in Spain, including complaints, allegations, investigations and other statistics, in compliance with the Committee’s recommendation. There had been a reduction of more than 50 per cent in the number of complaints of ill treatment which was evidence that training activities on the prohibition of torture and the Convention in general, as well as other measures taken, had had a positive impact.

A delegate spoke about the installation of audio-visual recording equipment in police detention centres, especially CCTV video cameras. She said so far two thirds of police stations had the technology and Spain would ensure that in the near future the overwhelming majority of police detention facilities would have CCTV video monitoring, in fulfilment of the Committee’s recommendation.

Concerning prison reform a delegate said 14 recommendations for prisons made by the Office of the Ombudsperson had been implemented directly. The National Committee for the Prevention of Torture made a number of instructions in 2007 which had also been implemented, most recently ensuring the participation of a medical doctor in any cases where an individual could not move or be transported to a judge. Any detainee could request an examination by a medical doctor, in addition to the procedural examination by a forensic medical doctor upon the point of detention.

There had been a very significant reduction in the number of suicides at detention centres which was well below the European average. The Government continued to make efforts, not least through a dedicated programme to reduce suicides in prisons and awareness-raising for staff about the risk of suicide by inmates.

Responding to questions on prison overcrowding, a delegate said that the prison population of Spain had been reduced by almost 9,000 people over the last four years, which had had a favourable impact on the capacity of prisons. Today the occupation rate was satisfactory. The National Plan for Prison Infrastructure set out the framework for the construction of new prisons and the renovation of existing institutions planned to create 18,000 new cells.

Referring to the question about ‘Basque detainees’, a delegate said he felt it necessary to inform the Committee that in Spain detainees were not classified by their place of origin and that Spain did not think it was appropriate or correct to talk about detainees from ‘Basque’ or any other place. In his question it was possible the Expert was referring to detainees who had cooperated with ETA or other organizations, said the delegate. It was true that ETA was the main source of fundamental human rights violations in the democracy of Spain, said the delegate, and there had been many, too many, victims of terrorism who were Basque. In an attempt to disperse that criminal organization, Spain sought to break the link between the detainee and the terrorist organization that they belonged to by pursuing a policy of dispersing detainees across different – and appropriate – penitentiaries. Spain believed that was in line with the good practice outlined in the Rome Memorandum.

Responding to the question about irregular migration and associated violations, a delegate said the autonomous cities of Ceuta and Melilla were suffering unprecedented pressure and massive and violent attacks by thousands of people and law enforcement officials had been injured numerous times. In the incident referred to by an Expert a number of people from Morocco violently attacked officials, leading to the hospitalization of one. All incidents were being investigated, added a delegate. The use of force in controlling public demonstrations was exceptional, he added.

Regarding media freedom, a delegate denied that a law had been drafted which stipulated that journalists who hampered official investigations could be detained. Rather, a new law would enter into force in July 2015 which would sanction the dissemination of pictures which undermined the integrity of members of the armed forces, police force, law enforcement officials or their families. Such acts would be punishable in a bid to prevent acts of aggression against those groups.

On the inadmissibility of declarations given under torture, the delegation said any declaration made under torture was completely inadmissible and radically void, and furthermore considered proof of a serious human rights violation.

To identify victims of torture among asylum seekers, the Ministry of Interior was responsible for the processing of asylum requests, and the Ministry of Labour was responsible for the system to attend to their basic needs. Asylum seekers were housed in special, subsidised centres, where professional staff that had had specific training on torture, the Istanbul Protocol and other areas could carry out diagnoses of the physical and mental health of individuals and possible signs that they had been tortured. On cases of torture detected in asylum seekers, Spain did not have statistical data about asylum seekers who had been tortured and was limited to the European guidelines on the number of asylum seekers and their nationality but not the reasons for which they were seeking asylum.

Follow-Up Questions by the Experts

Making enforced disappearance a stand-alone crime was an excellent step in the right direction, said an Expert. He asked about the development of case law and jurisprudence regarding the crime of enforced disappearance, which was an ongoing or continuous crime, sometimes featuring cases that were never resolved, and families who never discovered the fate of their loved ones. The concept of a ‘continuous crime’ did not appear in Spanish legislation, said the Expert, asking the delegation to comment.

The delegation’s clarification that a pardon was not an amnesty was welcomed, said an Expert, but he nevertheless expressed displeasure at the use of pardon for persons who had been found guilty of torture.

The use of solitary confinement as a disciplinary measure in prisons was a concern, said an Expert, particularly in La Modelo prison. The prison authorities said the maximum duration was 10 days but Spanish law held that solitary confinement could be applied for as long as 42 days, which was a great concern. The important legal amendments on the use of incommunicado detention for minors were welcomed. He asked about compensation and rehabilitation for victims of torture.

Freedom of expression was an extremely important legal safeguard, commented an Expert with regard to the incoming law prohibiting the dissemination by journalists of photos of members of the armed forces and law enforcement officials. Another Expert asked whether the arbitrary use of force by law enforcement officials was criminalized.

Response by the Delegation

Irregular migration and trafficking were linked to deep inequalities in the source countries, said a delegate, adding that Spain was committed to tackling that form of modern-day slavery. The events that occurred on the beach of El Tarajal in 2014 remained the subject of a criminal investigation, which was ongoing in order to clarify the facts.

Migrants in Ceuta and Melilla were held in open centres that were not places of detention; they gave vulnerable people a place to stay, where they could receive medical and other forms of assistance. Thanks to assistance from the European Union, staff at those centres had been increased and the infrastructure was significantly improved. The centres were visited regularly by human rights personnel belonging to both national and international non-government organizations, as well as the Ombudsperson and other experts, the High Commissioner for Refugees, officials of the World Health Organization, the European Committee against Torture, and the United Nations Special Rapporteur on Racism.

Concerning action to tackle trafficking in persons, Spain agreed that it was a modern form of slavery that was a scourge the world over. In April 2014 the Police Plan to Combat Trafficking was launched and had shown success so far, with 462 operations against trafficking cases. So far 1,450 persons had been arrested and 11,751 potential victims of trafficking, and in particular sexual exploitation, had been identified.

Regarding persons convicted of the crime of torture, a delegate said there were 23 convictions in 2013 for assaults on physical or mental integrity, and 18 convictions for the most serious offence of torture.

The delegation indicated that when crowd control units were ordered to intervene, it was mostly to resolve a violent situation which required quick and decisive action, but did not in any way interfere with the free exercise of the rights to the freedom of assembly and speech. The use of force was absolutely exceptional, in the 6,000 demonstrations and rallies that were freely held in 2013, only 20 - or 0.2 per cent - experienced intervention from the law-enforcement officials. The delegation categorically denied the comment made by the Expert on the draft bill that it could allow the possibility of the impediment of free speech.

Concluding Remarks

ANA MARIA MENÉNDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, thanked the delegation for coming from Spain which showed the importance in which the Convention was held there. She also thanked members of Spain’s civil society for the important role they had played in the review, including in the drafting of the report, noting that Spain greatly valued the rigorous scrutiny of civil society. She noted that outstanding answers would be forwarded to the Committee following the dialogue.

CLAUDIO GROSSMAN, Committee Chairperson, noted that the delegation could send any outstanding answers in writing to the Committee by close of business on Tuesday, 5 May. He thanked the delegation for the interactive dialogue and said the Committee would adopt and publicize its concluding recommendations on the report by the end of the session.

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