消除种族歧视委员会审议西班牙的报告（部分翻译）

消除种族歧视委员会

2016年4月26日

消除种族歧视委员会今天结束审议西班牙关于落实《消除一切形式种族歧视国际公约》条款情况的第二十一至第二十三次合并定期报告。

西班牙常驻联合国日内瓦办事处代表安娜•玛利亚•门德内斯（Ana María Menéndez）在呈交报告时表示，2015年《刑法典》改革加强了打击仇恨言论和煽动暴力（包括在网络上）的立法。西班牙通过了改善其外国人管理中心条件和允许非政府组织访问的新规则。2011年通过了打击种族主义和歧视的综合战略，阐明了后续和评估的机制。西班牙还改善了刑事统计系统，并正在起草安全部队培训支持手册。她提到了西班牙的教育政策，包括2015年提高意识和培训教育人员确认和预防歧视的项目。她还提到了2014年保护无人陪伴的未成年人的协议以及包容西班牙吉普赛人口的措施。

在对话期间，专家对新《刑法》的通过、数据收集进展和改善外国人保护的措施表示欢迎。专家广泛提到了当前的移民危机。他们提出了对梅利里亚（Melilla）边境推回海上做法的担忧，以及据报边境巡逻队过度使用武力导致移徙者死亡的问题。专家还对处理庇护请求的长期延迟和收容中心的状况表示担忧。委员会成员询问了一些关于西班牙包容政策的问题，具体询问了罗姆人社区成员的处境。对非洲人后裔的污名化和歧视是需要担忧的问题。鼓励西班牙进一步参与对话，解决关于大西洋奴隶贸易和殖民主义的赔偿和正义问题。

委员会成员兼西班牙国家报告员帕斯托尔•埃里亚斯•穆里略•马丁内斯（Pastor Elias Murillo Martinez）在总结发言中表示，在梅利里亚寻求国际保护者的处境是需要解决的主要挑战之一。西班牙应该考虑关闭其收容中心并建立对其公民警卫队行为的强化监督机制。他鼓励与非洲人后裔进行更多对话，并敦促西班牙具体解决大西洋奴隶贸易问题，这是危害人类罪，诉讼时效并不适用。

门德内斯女士在总结发言中承认条约机构尽可能广泛地探索和解释其任务授权的权利，但不赞同委员会应该调查几个世纪以前采取的行动的观点。她也对未提起性取向和性别认同的问题表示失望。

西班牙代表团包括外交与合作部、司法部、内政部、教育、文化和运动部、劳动和社会保障部卫生、社会服务与平等部、司法总理事会、国家检察官办公室以及西班牙常驻联合国日内瓦办事处代表团的代表们。

委员会将于今天下午3点复会，开始审议阿曼的第二至第五次合并定期报告（CERD/C/OMN/2-5）。

报告

西班牙的第二十一至第二十三次合并定期报告可在此查看：CERD/C/ESP/21-23。

Presentation of the Report

ANA MARÍA MENÉNDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, presenting the report, said that Spain attached great importance to equality and the elimination of all forms of discrimination. Equality was a fundamental value under the Spanish legal system, enshrined in Article 14 of the Constitution. Real and effective equality was a matter of social justice, development and social inclusion. A reform of the Penal Code of 2015 had strengthened the legislation on combatting hate speech and incitement to violence, including online. Spain had also adopted new regulations improving the conditions in its administrative centres for foreigners and allowing non-governmental organizations to visit these centres. In 2015, a new statute on victims of crimes had established protection measures for victims and their family members, delivered by the Office for the Assistance to Victims. This Office addressed crimes on the basis of race or ethnicity, and played an important preventive role. In 2011, a comprehensive strategy to combat racism and discrimination had been adopted, and it was now the main Governmental tool to address these issues.

ROSA MARÍA ITURZAETA, Representative of the Spanish Observatory of Racism and Xenophobia, described the goals and objectives of the national strategy to combat racism, and presented the activities of the Spanish Observatory in the fields of awareness-raising and data collection. The strategy set forth mechanisms for the follow up and evaluation of its implementation, she said. She underlined the importance of adapting the strategy to evolving needs.

Ms. Menéndez, taking the floor back, said that Spain had improved its criminal statistics system and the collection of data on racist and xenophobic incidents. The criminal statistics system played an important role in that regard. Spain was also drafting a support manual for the training of security forces, which focused on detecting and combatting hate crime and discrimination, and on support to victims. A protocol adopted in 2014 had homogenized the rules for the identification by security forces of acts of racism or discrimination. A webpage had been made available for victims to denounce such acts by the security forces.

ROSA MARÍA CANDELA, Deputy Director General for Equal Treatment and Non-Discrimination at the Ministry of Health, Social Services and Equality, referred to a study on discrimination in Spain, carried out in 2014, which had led to the mapping of discrimination in the country and had allowed public policies to tackle the reality of discrimination on the ground. In addition, the Spanish Observatory of Racism and Xenophobia produced a yearly diagnostic on the state of racism in the country and on perceptions on migration.

Ms. Menéndez, taking the floor again, referred to Spain’s education policies, including a 2015 project to raise awareness and train education staff in identifying and preventing discrimination.

ALFONSO AYA ONSALO, Office of the Prosecutor General, said that Provincial Prosecutors had been appointed to address inequality and combat discrimination at the local level. These Prosecutors could receive reports and complaints, and initiate investigations and prosecutions in cases of hate crime or discrimination.

In conclusion, Ms. Menéndez referred to a 2014 protocol for the protection of unaccompanied minors, and to measures for the inclusion of the Gypsy population in Spain. She said that the Government would continue its efforts in the areas of fighting hate speech, combatting racism in sports, strengthening the training of the judicial system, and improving data collection, as well as continuing awareness raising efforts.

Questions by the Experts

PASTOR ELIAS MURILLO MARTINEZ, Committee Member and Country Rapporteur for Spain, welcomed the adoption of a new criminal code, progress in the collection of data, and measures to improve the protection of foreigners, which were areas of significant progress achieved by Spain. He also welcomed efforts to combat hate speech and racial profiling. The economic and financial crisis had led to drastic cuts in the provision of services, and had had a negative effect on the most vulnerable populations. The current migration crisis, for its part, had caused a major challenge to Spain, and amounted to a humanitarian tragedy. About 500 persons had just died near the coast of Spain, he recalled. What was being done by Spain, as a European Union Member State, to respond to the needs of asylum seekers? He referred to incidents of abusive use of force by Spanish police forces, which had led to the recent death of several migrants. Had there been real and effective investigations into these events, he asked? He noted that migrants and refugees continued to face stigmatization, and asked what measures had been taken to raise awareness on their positive contribution to the Spanish society. Migrants and asylum seekers from Sub-Saharan Africa suffered major disadvantages compared to other migrants, with restrictions imposed on their freedom of movement.

Continuing, the Country Rapporteur noted the international framework on persons of African descent, and asked whether efforts had been made by Spain to ensure that colonialism and the slave trade were included in the curricula of schools. He asked whether Spain was considering steps to provide redress to the victims of the transatlantic slave trade. What space was occupied by persons of African descent in the public life and the media? He regretted that persons of African descent, including children born in Spain, continued to feel like foreigners in their own country. He said that the situation in Spain was part of the European trend of increased hate speech and the rise of far-right parties. This suggested the need for Spain to be watchful, he said, asking what was being done to keep this trend under control. The lack of accountability for political leaders was an important challenge faced by Spain. Discrimination against the Roma population, as well as the existence of “education ghettos”, were also issues to be addressed. There was also a need for greater fairness in the granting of visas, he said.

Moving to the first round of questions, an Expert referred to Spanish multinationals that had economic interests overseas. He noted that the Government had adopted a plan of action, which would be re-drafted this year, noting that civil society views were reportedly not included in this new version. The most recent draft was indeed reportedly overly-influenced by companies with economic interests, he said. He encouraged Spain to accelerate its efforts for the implementation of the United Nations Guiding Principles on Business and Human Rights, and expressed concerns about the negative impact of Spanish companies’ activities on the livelihood of indigenous peoples in Latin America. He referred specifically to an indigenous community from Paraguay, and to gas projects in Peru.

An Expert asked the delegation to share its assessment on the current situation of migration in Spain, and its plans to deal with the current refugee crisis, not only in the short term but also in the long term. He expressed concern about allegations of unlawful and collective expulsions of refugees, and about cases of refoulement already flagged by the United Nations Committee against Torture.

The police had been granted special powers by the counter-terrorism legislation, an Expert noted, asking whether these could lead to abuse.

Persons of African descent were facing serious difficulties, Experts noted, including racial profiling, under-representation and lack of access to housing.

An Expert asked for information on the status of the Roma population. Another Committee Member inquired specifically on the situation of Roma women. The delegation was asked for details regarding the implementation and effects of an inclusion strategy for Roma people.

On representation, an Expert asked how many people from minorities had been included in the judiciary. What special measures had been taken to remedy the lack of representation of minorities?

An Expert asked for more information about Spain’s integration policy, and noted with concern the existence of “ghettos”, particularly in Madrid.

Committee Members noted that Spain did not collect disaggregated data, which it would consider as discriminatory. However, such statistics could indicate the effectiveness of an integration policy, one Expert noted. Committee Members repeatedly underlined the importance of collecting data.

Experts asked what impact the financial crisis had had on Spain’s integration policies. Was the delegation able to provide statistics on this impact? One of the Goals under the 2030 Sustainable Development Agenda focused on equality between and within countries, an Expert recalled.

Experts insisted on the importance of education in raising awareness and in combatting negative racial stereotypes. The delegation was asked how the school curricula promoted greater knowledge of the history, cultural heritage and positive contribution of persons of African descent.

An Expert asked whether Spain had ratified ILO Convention 189 concerning Decent Work for Domestic Workers.

Referring to Spain’s colonial past, an Expert asked whether Spain would hold dialogues with Caribbean countries on the issue of reparatory justice. An Expert noted that Spain’s national day sometimes led to tensions, and underlined the importance of resolving past issues.

Replies by the Delegation

A delegate presented new legislative provisions that prohibited and prevented racial profiling and discrimination, and measures and guidelines for law enforcement personnel in that regard. This law provided that foreigners could not be stripped of their identification documents in case they were arrested. All persons were required to hold and carry identification documents with them at all times. All citizens and foreigners could be subjected to a fine in case of failure to present documents upon request by a police officer.

The law explicitly prohibited the collection of personal data on ethnicity or race without the consent of the person. Official statistics therefore focused on nationality.

On integration policies, a delegate informed the Committee that studies showed that most of the Spanish population was favourable to a multicultural society. Studies also showed that 20 per cent of the population had faced discrimination.

On the migration crisis, a delegate said that Spain and the European Union were taking measures to address the crisis and to support countries in conflict. Spain’s migration policy focused on immediate action and long-term solutions. Spain was committed to receive migrants and to provide the highest level of human rights protection for these individuals. Through its international development cooperation, Spain was trying to tackle the root causes of migration. Spain was also participating in the European Union’s resettlement mechanism. It had adopted a national plan on migration, supported by increased budget allocations, and was collaborating closely with non-governmental organizations and with the United Nations Refugee Agency (UNHCR).

With regards to the situation of migrants, refugees and asylum seekers, a delegate said that internment centres were not detention centres. Migrants could only be kept there for a maximum of 60 days, while their asylum requests or their expulsions were being processed. These centres were overpopulated. In temporary migrant centres, housing and education services were provided to asylum seekers. The Spanish legislation provided education for all minors, including children of asylum seekers. Uniforms, school materials and warm clothing were provided to the children. Healthcare services, including psychological support and emergency medical care, as well as legal counsel and interpretation, were also provided in these centres. The Spanish Red Cross was conducting activities in these centres. Foreigners could contact their families, both abroad and in Spain. Agreements had also been concluded with representatives of the Muslim faith in Spain, in order to ensure that foreigners in these centres could practice their religion. There were legal guarantees for placing a foreigner in an internment centre, to ensure respect for human rights. Complaints could be filed by foreigners in these centres to the Prosecutor’s Office, the Ombudsman or relevant national or international non-governmental organizations. Inspections were carried out periodically.

Pushbacks from borders were regulated with robust safeguards and guarantees, and fully respected the principle of non-refoulement. Specific measures applied only to Melilla, where a physical fence had been installed to counter major irregular migratory flows from Africa. There was no international law standard guaranteeing free entry in a country through irregular border points, a delegate noted, recalling that all States had a duty to protect their borders.

With regards to the use of force by border patrols, investigations had been launched with regards to incidents implicating security forces and resulting in the death of migrants at the Moroccan-Spain border. They had concluded that there were doubts whether the security forces had caused these deaths, a delegate said. The use of anti-riot gear was authorized in Spain, she added. Law enforcement personnel received basic human rights training, a delegate said.

Regular migrants and asylum seekers received the same healthcare services as any Spaniard. Irregular migrants always enjoyed a guarantee for emergency healthcare, birth and pregnancy support. The healthcare in Spain was of high quality and free. Spain had the highest life expectancy level in Europe, the delegation noted.

Candidates seeking Spanish nationality were subjected to a test on Spanish language and culture; nationality was granted in respect of the principle of equal treatment. The Government was trying to facilitate the request process.

The Roma population in Spain self-identified as Gypsy, a delegate said. The majority of this population was perfectly integrated, he added, and benefited from public social policies and from both mainstream and specifically-targeted measures addressing their needs. In 2012, the Ministry of Justice had adopted a specific action plan within the context of the European Framework for National Roma Integration Strategies. This included measures at the national and local levels. The Roma population benefited from a number of social projects, an Expert said, noting that there had been no cut in the budget during the economic crisis. Despite efforts, Roma people suffered from a decreased access to employment. Spain would work with the Council of Europe to better tackle this challenge. The Roma population in Spain had always refused to be considered as an ethnic minority, a delegate said. With regard to gender violence, Roma women had access to the same structures as any other citizens, the delegate noted, adding that awareness-raising campaigns had specifically targeted gender violence within the Roma community. There was a nearly 100 per cent enrolment in education among Roma children.

A law adopted in 2014 had recognized the history of slavery, in support of persons of African descent. Programmes specifically targeted the inclusion of persons of African descent. Madrid had also hosted roundtables on this issue, within the context of the Decade of Persons of African Descent. The school curriculum addressed different perspectives in the history of Spain, including colonization and decolonization, the transatlantic slave trade, and the fights for human rights and self-determination. Spain had just received a request by the Caribbean Community (CARICOM) to hold a high-level meeting on reparation for past slavery, but it was too soon to give a detailed answer. The transatlantic slave trade had taken place prior to the establishment of the international human rights system, the delegation noted. Spain considered that the best way to address past crimes was firstly to commemorate the victims, and secondly through efforts to prevent such acts ever taking place again.

The integration of migrants was a central pillar of Spain’s migration policy, and had been very successful so far. Integration policies had however suffered as a result of budget cuts and austerity measures adopted after the financial crisis. The Government had continued financing activities for migrants in vulnerable situations, including unaccompanied children, in key areas such as health and education. Budgets had now been increased again due to European financial support. The delegation detailed the financing of a series of integration programmes, and programmes aimed at combatting racism and racial discrimination.

Surveys on discrimination had been conducted, and concrete actions, including awareness-raising campaigns, were being undertaken to prevent racist speeches, xenophobia and negative stereotyping in the media, in education and during electoral campaigns. Other awareness-raising campaigns had sought to combat discrimination in the renting of properties.

New legislation offered better protection against hate crime, the delegation said. Spain had also increased the severity of sentences for acts of humiliation of religious groups. Hate crime online, on social media for example, was also punishable. Spain also criminalized negationism.

As part of its counter-terrorism legislation, Spain had criminalized travelling to a country or destination controlled by terrorist groups. This aimed to prevent young people from leaving to Syria and training there with terrorist groups.

Spain had adopted measures for the implementation of the United Nations Guiding Principles on Business and Human Rights, in particular with regards to the impact of activities by companies on the livelihood of indigenous peoples.

Questions by the Experts

With regards to migration, an Expert referred to an isolated case of the death of a foreigner in a holding centre in 2011, and to another case of sexual assault in one of these centres. A 2012 decree apparently decreased humanitarian assistance to unaccompanied minors and to pregnant migrant women, an Expert said. The migration crisis was a tragedy that could not be treated as a normal situation, another Expert said. Migratory flows kept outside of the European Union borders led to migrants being in a protection vacuum. He understood that States had security concerns that needed to be addressed, but insisted that this exceptional crisis needed to be addressed through exceptional measures.

Another Expert referred to the long delays in processing asylum applications, which could reach a length of two years. He referred specifically to asylum applications from Malians, submitted in 2012 and only processed and rejected in 2014 or 2015 because the security situation in Mali had already improved.

Another Expert was concerned that no security officer had been charged with the death of migrants, considering that the use of force in the case referred to before seemed to have been disproportionate.

An Expert referred to controversies surrounding the procedure for age determination of migrants.

Spain was encouraged to be the first European Union country to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

An Expert asked how many measures had been put in place to address the needs of the Roma population, and what had been their outcome. What had been done to measure the effectiveness of these measures? Spain was encouraged to promote best practices at the European Union level on the integration of the Roma population.

An Expert asked to what extent had education and awareness-raising efforts led to progress in combatting stigmatization against persons of African descent. To what extent had there been a dialogue with persons of African descent in Spain on the issue of reparatory justice for past slavery? Another Expert noted that Spain had been involved in slave trade, and regretted that this aspect was not necessarily reflected in school curricula. Experts reiterated their questions with regard to the required residency time for obtaining the Spanish nationality, which was longer for persons of African descent.

An Expert asked what was being done to combat hate speech and harassment and violence based on race in schools.

Replies by the Delegation

The delegation acknowledged that delays in the processing of asylum requests exceeded reasonable delays. This was due to the fact that each application had to be reviewed individually. Measures had been taken to speed up the process. Spain had made efforts to facilitate legal entry through visible border posts in Melilla, which sought to prevent deaths at sea. Spain, together with its European partners, had established exceptional relocation and resettlement mechanisms.

Age determination was undertaken primarily on the basis of the documents provided by the person. Medical examination was only carried out in case of doubt on the validity of these documents, and safeguards were in place for the protection of the rights of the concerned person.

With regards to the deaths of migrants near Melilla, a delegate noted that the victims had been trying to swim from a Moroccan beach to a Spanish beach while wearing heavy outfits. Rubber bullet wounds found on their bodies were very limited, and could not have been the cause of their death. With regard to the death of an individual in a holding centre in 2011, a delegate said that the investigation had pointed to a rare case of meningitis. This was a very isolated case, the delegation said.

With regard to the case of sexual assault in a holding centre, a delegate said that the accused had recently been acquitted, and that all measures for the protection of the victim had been taken at the time. The delegation then presented the disciplinary measures system for personnel of security forces.

Spain had no census data on the number of Roma persons, a delegate recalled. It only had estimations. Impact assessment was a costly process, he added, explaining that the Government was directly liaising with the population and conducting perception studies. The Government would undertake a detailed study on the impact of its economic policies. The Government had also established an institute for Roma culture, which was responsible for the renaissance and preservation of the Roma language in Spain. This culture provided education in Roma language.

The principle of equal treatment was a constitutional value reflected in Spain’s education system. A delegate also referred to the “coexistence programme” in school curricula.

The Spanish nationality could normally be obtained after 10 years of residence, the delegation said, explaining that those from Spanish-speaking countries could, for historical reasons, obtain the citizenship after only a two-year residence period.

To combat hate speech and harassment in schools, a delegate said that training was provided for teachers and those working in the school setting. Efforts were being made for monitoring and preventing abuse and bullying.

Concluding Remarks

PASTOR ELIAS MURILLO MARTINEZ, Committee Member and Country Rapporteur for Spain, said that this had been a constructive dialogue. Spain was still facing challenges, but it had achieved major progress in the field of combatting racial discrimination. The situation of those seeking international protection in Melilla was one of the main challenges to be addressed. Spain should consider the closure of its holding centres, bearing in mind that in some cases these were former prison facilities that were not appropriate for receiving foreigners. Spain should also establish strengthened oversight mechanisms for the actions of its civil guards. Further work was also needed to prevent racial profiling. He commended Spain for its engagement with the Alliance of Civilizations, and for the Durban Declaration and Programme of Action. He encouraged more dialogue with persons of African descent, and said the transatlantic slave trade was a crime against humanity for which no statute of limitation applied. It should be specifically addressed. He welcomed efforts in the education sphere, and encouraged further efforts to convey a more balanced view of history.

ANA MARÍA MENÉNDEZ, Permanent Representative of Spain to the United Nations Office at Geneva, in her concluding remarks, welcomed the questions and comments put forward by Committee Members. She recognized the right of the treaty bodies to explore and interpret their mandate in the broader possible sense, but did not share the view that the Committee should look into actions that took place centuries ago. She was disappointed that the question of sexual orientation and gender identity was not brought up, and underlined that violence and discrimination against lesbian, gay, bisexual, transgender and intersex persons was an issue of great concern for the Spanish Government.

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