establishing and implementing a more formal policy on human rights defenders and ensuring that its collaborations with defenders recognise them as important advocates for human rights rather than only as partners in the provision of services to the public. The State’s generous commitment to strengthening and supporting defenders of people on the move and Roma rights stands as a good practice, and in stark contrast to the deteriorating situation faced by such defenders in other States. Spain 1. National Context and Human Rights Defenders
Spain was included in the 2006 Global Survey. The Special Representative regretted that she had not received information from the State, nor did she have enough information from other sources to provide an assessment of the situation of human rights defenders at the time. Although the State has a legal and policy framework which guarantees many of the rights articulated in the Declaration, in recent years a growing number of restrictions have been imposed on defenders, both through law and State practice. Defenders have noted increasing difficulties in exercising their freedoms of assembly and expression. Defenders of the right to self-determination and Catalan rights, defenders dealing with politically sensitive issues, defenders of people on the move, and women human rights defenders are all vulnerable to greater harassment and restrictions on their activities. Defenders participating in public assemblies and journalists are also at risk of excessive use of force from police. Spain includes the autonomous regions of Galicia, Catalonia and the Basque Country, the latter two of which have seen strong independence movements emerge. In August 2017, terrorist attacks in Barcelona left 16 dead and more than 100 wounded in Barcelona in August 2017; the State had previously suffered coordinated bombings in 2005 leaving almost 200 people dead and around 2,000 people injured. These circumstances have deeply affected public attitudes and State policies and the situation of human rights defenders, particularly those active on issues or rights related to these circumstances. Spain is a member of the Organisation for Security and Cooperation in Europe, the Council of Europe and the European Union. 2. Legal and Policy Framework
Spain is party to a majority of the core international human rights treaties, with the exception of the International Convention of the Protection of the Rights of All Migrant Workers and Members of Their Families. The State does not have a comprehensive law or policy concerning human rights defenders. Many of the rights outlined within the Declaration are enshrined within the Spanish Constitution. However, other laws can restrict the constitutional rights. For example, although the right to peaceful assembly is protected in broad terms under Article 21, the 2015 Basic Law for the Protection of Public Security significantly restricts when and where demonstrations can take place. The 2015 Basic Law broadly prohibits unannounced protests around “vital infrastructure�, demonstrations in clothing that masks the face and hinders 483
identification, and the carrying of objects that could cause injury. The Basic Law also prohibits “unauthorized” photos of police forces. In 2015 the President of Platform for the Defence of Free Expression, Virginia Pérez Alonso, said of the Basic Law and related anti-terrorism legislation: “Many of these reforms have a common denominator: curtailing those methods of sharing information, placing barriers on the internet as a space of free expression and penalising, in some cases disproportionately, new forms of protest”.208 El Defensor del Pueblo is the national human rights institution and has been accredited as fully (‘A’ status) complying with the Paris Principles. The institution provides assistance in the investigation of alleged misconduct by the authorities, submits an annual report on human rights to Parliament, and can investigate and report on cases it deems significant. 3. Implementation of the Declaration
Freedom of expression of defenders has been limited through various anti-terrorism measures and restrictions placed, in practice, upon the activities of journalists. Defenders have faced charges for the “glorification of terrorism” and “the humiliation of its victims” under Article 578 of the Penal Code, which provides for up to three years imprisonment and extensive fines. A broad range of defenders, including artists, musicians and political commentators critical of the State (and, in particular, its King) or supportive of separatist movements, have faced prosecution under Article 578. Defenders have expressed concern that the provision is used to silence critics of the State. Artwork depicting jailed Catalan independence leaders was removed from the ARCO art fair in Madrid entitled Political Prisoners in Contemporary Spain in February 2017. The State justified the removal of the artwork on the basis that there are no political prisoners in Spain. Online comments on social media have also been prosecuted under Article 578. Lawyers working in defense of those that have been accused under Article 578 have themselves been attacked in the media and described in public discourse as ‘ethically reprehensible’ and with ‘professional connections with alleged jihadists.’ Lawyers representing those accused of terrorist acts have also suffered similar abuse. Freedom of assembly of defenders has been, in practice, restricted by a growing number of incidents of excessive use of force by the police. Police officers have also been known to obscure or remove their identification numbers during protests, and their excessive use of force is treated with impunity by the State. Restrictions on protests intensified surrounding the referendum for Catalonian independence. Courts in both Madrid and Vitoria barred two public assemblies aimed to support the referendum. In Castelldefels in Catalonia, the municipality adopted a blanket ban on any form of public demonstration concerning (either in support of or against) the referendum. Presidents of Catalan independence organisations, Jordi Cuixart and Jordi Sanchez, were investigated and charged sedition and rebellion as a result of protests they organized in Barcelona on the 20 and 21 of September 2017. Defenders complained of the excessive force, particularly through the use of anti-riot equipment and rubber bullets against 208
The State of Press Freedom in Spain: 2015 (International Press Institute, March 2015) available online at https://www.access-info.org/wp-content/uploads/IPISpainReport_ENG.pdf
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largely peaceful protesters. Nils Muizenieks, the Council of Europe Commissioner for Human Rights, raised concern in his Fourth Quarter Activity Report for about the disproportionate use of force by the authorities in Catalonia during October 2017. Muizenieks noted that the protestors were largely peaceful and the police use of rubber bullets, even in response to isolated violence, was excessive, leaving one protester blind. In 2018, assemblies in support of independence for Catalonia continued to take place. Millions took to the streets on National Day in September 2018 in Barcelona in a largely peaceful demonstration. An agreement concerning the protection of journalists during protests was signed in March 2011 between the Ministry of the Interior and the Spanish Federation of Journalist Associations. The agreement outlined that media personnel were to be identified through distinctive vests during protests. However, notwithstanding (or sometimes because of) such clear identification, journalists documenting protests have been subjected to detention, intimidation and assault by the police. Damage to cameras has been reported, allegedly deliberately preventing the recording of police actions. Defenders have complained that many photojournalists, contributors to publications and not-for-profit community broadcasters are finding it increasingly difficult to cover public demonstrations and gatherings owing to the excessive policing methods employed. Freedom of association is enjoyed in practice by most defenders. There are no major restrictions on forming or running civil society organisations in Spain. However, defedners have expressed concern over what appears to be the politically motivated revocation by the State of the status of public utility association (asociación de utilidad pública). Human rights organisations have been disproportionately affected, while many ultra-conservative or Catholic associations have maintained the status despite similar concerns. Associations working on migrant rights, such as Caminando Fronteras, have suffered frequent harassment and the State has failed to offer protection to its workers. The organisation SOS Racismo had its offices attacked and covered with xenophobic graffiti in 2014. Women human rights defenders have played a prominent role in human rights campaigns in Spain. For example, in 2018 women human rights defenders led a high-profile and widely popular campaign to reform the State’s narrow rape law following lenient sentences given to five men who had gang-raped a young woman in 2016. The case, known as the case of “La Manada”, caused outcry across the State. Approximately five million people participated in the State’s first feminist strike on International Women’s Day in March 2018. Despite their high profile within the human rights movement and in public debate on human rights, women human rights defenders face specific risks as a result of their activities. Women defenders have been victims of sexist insults and harassment while in police custody following protests and demonstrations. The resources available for the protection of womend defenders against gender-based violence are limited. Defenders have also faced police violence and stalking. The Special Rapporteur reiterates his concerns over reported allegations of intimidation, defamation and death threats against Ms Helena Maleno Garzon, relating to her status as a woman and her activities as a human rights defender of people on the move. The Special Rapporteur sent a communication to the State regarding the matter in 2017 and has not yet received a response. He also notes that measures of protection for her
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and sanctions towards those who have conducted threats against her have not been implemented. Defenders of the right to self-determination and in Catalonia have faced increasing restrictions on their activities as a result of recent developments. A referendum for independence held in Catalonia on 1 October 2017, but not recognised by Spain, led to the declaration of a Catalan Republic and independence from Spain on 27 October. State authorities responded by using constitutional powers to dissolve the Catalan regional government and impose direct rule the same day. In November 2017, prosecutors began criminal proceedings against 14 representatives of the dissolved Catalan government for sedition and other offenses. The State has been reviewed twice under the UPR process, most recently in 2015. The noted concerns about restrictions on freedom of assembly and the excessive use of force by the police were raised during the most recent review. The State committed to examining a recommendation that the State strengthen its commitment to ensuring fundamental rights of freedom of expression, peaceful assembly and association, and continue its cooperation with civil society, particularly with human rights defenders, by investing further efforts in creating a favourable environment for the members of the civil society organizations. As well as his communication in 2017 regarding the case of Ms Helena Maleno Garzon, the Special Rapporteur sent a communication in 2012 regarding excessive use of force against peaceful protestors, who were minors, during the student protests that took place in Valencia in February 2012. 4. Issues and Trends
The State has, in recent years, faced a series of challenges from terrorist attacks and separatist movements. The Special Rapporteur appreciates that responding to these challenges while protecting the rights of defenders is a difficult task, albeit one to which all States should be committed. He is concerned by growing restrictions on freedom of expression and assembly in Spain in law and in practice, particular by the intensification of this trend following the Catalonian referendum for independence in 2017. The Special Rapporteur remains gravely concerned by continued reports of excessive use of force from police, and the impunity with which this is treated. The Special Rapporteur reminds the State that defenders’ rights to freedom of expression and peaceful assembly is a fundamental part of the right of participation in a democratic society and guaranteed by the Declaration. The Special Rapporteur encourages Spain to implement strict controls on the use of force by the police during demonstrations, and to ensure that victims of the use of force have a transparent and effective mechanism through which to hold their perpetrators to account. He also urges the State to fully respect the rights to freedom of expression and assembly, especially for those holding views contrary to the State.
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