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

OHCHR

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 https://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?   

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