COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION


CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION
Concluding observations of the Committee on the
Elimination of Racial Discrimination

 †

Spain

479. The tenth, eleventh and twelfth periodic reports of Spain, submitted in one document (CERD/C/226/Add.11), were considered by the Committee at its 1054th, 1055th and 1056th meetings, on 9 and 10 August 1994 (see CERD/C/SR.1054-1056).

480. The report was introduced by the representative of the State party, who emphasized that Spain attached great importance to the promotion of racial equality and indicated that the Spanish Government had taken various measures to combat and prevent all manifestations of racism, xenophobia and intolerance. The Government authorities, backed by the media, had launched awareness campaigns to promote an attitude of tolerance and to encourage pluralism. The new Criminal Code, which would soon be submitted to Parliament, provided that racist or xenophobic motivation for an offence would be an aggravating circumstance and that the dissemination of any ideology encouraging discrimination or racial hatred would be punishable. Several other measures had been taken to protect foreign workers, including illegal workers. The Ministry of Social Affairs had been implementing the Gypsy Development Plan since 1988. The Government was about to conclude an agreement with the media and the Autonomous Communities on the self-regulation of the media with regard to matters relating to the protection of ethnic minorities living in Spain.

481. The members of the Committee welcomed the resumption of the dialogue with the Spanish delegation and thanked the representative of the State party for the additional information he had provided in his oral introduction. Members expressed dissatisfaction with the extreme brevity of the written report, which had not been prepared in accordance with the Committee's guidelines, did not contain data on the demographic and ethnic composition of the Spanish population and did not give answers to the questions asked during the consideration of earlier reports. They hoped that the Spanish Government would provide fuller information on those points in its next report. The members of the Committee also wished to receive additional information on the competence and powers of the Autonomous Communities in relation to the central Government.

482. In respect of article 2 of the Convention, the members of the Committee requested more detailed information on the situation of the Gypsies and on the specific measures adopted by the Government to ensure the development of that community, to implement the national Gypsy Development Plan and to put an end to the discrimination to which they continued to be subjected in different areas. Questions were also asked about the situation of the inhabitants of Ceuta and Mellila. Reference was made to the increase in acts of xenophobia and racial discrimination against foreigners and immigrants. The Committee wanted to have details of specific cases of attacks and racial discrimination and asked what measures had been adopted to prevent such manifestations, particularly by Spanish officials and police officers, and to what legal proceedings and convictions such acts had given rise. Clarifications were requested on some provisions of the Rights and Freedoms of Aliens in Spain (Organization) Act (No. 7/1985) which placed restrictions on freedom of movement, assembly and education. Members of the Committee asked what legal provisions had been adopted since 1986 on conditions of entry into and employment in Spanish territory and, in general, on the Spanish Government's current policy on foreign immigration. Members of the Committee asked whether the legislation and government policy on the right of asylum and the legislation applicable to refugees had recently been amended.

483. With regard to the implementation of article 4 of the Convention, the members of the Committee asked what the exact scope of the reform of the Criminal Code would be and whether the new provisions would make it possible to dissolve organizations that promoted racism and to punish the persons responsible, in accordance with the provisions of article 4 (b) of the Convention. They also asked about the provisions of the future code on action to combat terrorism and separatism.

484. The members of the Committee regretted the lack of information on the implementation of the provisions of article 5 of the Convention. Concern was expressed about de facto discrimination against members of the Gypsy community in the spheres of housing, education and employment and against migrant workers and foreign nationals in general. Also in connection with article 5 of the Convention, information was requested on specific reported cases of racial discrimination in daily life and on the implementation of ILO Convention No. 111.

485. Referring to article 6 of the Convention, the members of the Committee requested additional information on the functions of the People's Advocate, the coordination of his functions with those of the corresponding institutions in the Autonomous Communities, the number and type of complaints filed with the People's Advocate, the impact of his recommendations and the content of his annual report. The members of the Committee also welcomed the adoption of new rules on the use of the languages of the Autonomous Communities in administrative procedures. They asked for further information on decisions by the Constitutional Court and the ordinary courts relating to questions of racial discrimination.

486. On the subject of article 7 of the Convention, the members of the Committee asked about the dissemination in Spain of international human rights instruments and whether there was any institution dealing specifically with problems of racial discrimination. They also requested information on the action being taken by the Spanish Government to combat racial discrimination in the police force and to promote understanding and tolerance towards foreigners.

487. The members of the Committee expressed the hope that the State party would consider making the declaration under article 14 of the Convention and withdrawing its reservation to article 22 of the Convention. They also expressed the hope that Spain would deposit the necessary instruments for acceptance of the amendment to the Convention adopted by the States parties in January 1992 and endorsed by the General Assembly in December 1992.

488. Replying to the questions raised by the members of the Committee, the representative of the State party indicated that the total population of Spain was 38.9 million; the Gypsy population was approximately 600,000; there were some 400,000 aliens resident in Spain as of the end of 1992, about half of whom were Europeans. There had been 11,708 applications for political asylum in 1992, among which 7,350 had been heard and 296 had been successful.

489. As to the relationship between the Autonomous Communities and the central administration, the representative explained that those issues were governed by articles 143 et seq. of the Constitution and that all the Autonomous Communities enjoyed considerable responsibility for their own affairs. Article 171 (c) of the Constitution stated that the Constitutional Court was empowered to rule on the division of powers between the Autonomous Communities and the central administration. The Constitutional Court also resolved disputes between the Autonomous Communities themselves.

490. Replying to questions about the implementation of article 2 of the Convention, the representative provided details on the Gypsy Development Plan of the Ministry of Social Affairs, the main aim of which was to ensure equality between Gypsies and other Spaniards, to guarantee social integration and respect for their culture, to help them live peacefully with other Spaniards, to improve their living conditions and to encourage their participation in public life. The authorities were aware of the need to provide training for officials in dealing sensitively with Gypsies and other minority groups. All the activities concerned with Gypsy development were coordinated by the Ministry of Social Affairs through an interministerial working group. As to the education of Gypsy children, who were integrated into the school system, a programme providing special classroom assistance for teachers had been set up by the Ministry of Education. Efforts had already been made in the area of housing for the Gypsy community.

491. With regard to the Rights and Freedoms of Aliens in Spain (Organization) Act (No. 7/1985), the representative explained that compulsory residence could only be imposed on foreign nationals whose situation in Spain was irregular. As to the provisions making possible the suspension of the activities of associations made up of foreign nationals, they had been declared unconstitutional by ruling No. 115/1987. Concerning educational rights of foreign nationals, it was stated that foreigners could open and run educational establishments if similar rights were afforded to Spanish citizens in the country concerned. The representative also referred to new legislation relating to foreign nationals adopted since Spain had joined the European Union in 1986, including Royal Decree No. 511 of 14 May 1992 instituting the Interministerial Commission for Foreign Nationals, and the Order of 24 May 1994 setting up the Spanish committee of the European campaign for youth against racism, xenophobia, anti-semitism and intolerance planned for 1995. Details were also provided on the awareness campaign for some 876,000 public officials.

492. Concerning the recent Act on Asylum and Refugee Status (No. 9/1994), the representative stated that the new Act provided for measures to ensure that applications for asylum were dealt with as quickly as possible. Asylum-seekers held at airports were not considered to be under detention, but merely held pending the processing of applications. Nevertheless, since some had regarded such action as unconstitutional, the matter was at present being reviewed by the People's Advocate.

493. The representative provided the Committee with some information on the role and functions of the office of the People's Advocate. She added that three of the Autonomous Communities, Galicia, Catalonia and Andalusia, had their own People's Advocates to deal with complaints from within their areas, and it was hoped that the practice would be extended in time to the rest of the Autonomous Communities.

494. With regard to article 4 of the Convention, she stated that the need to give protection against racist and xenophobic acts, in compliance with article 4 of the Convention, would be met in the extensive reform of the Criminal Code at present under way. The revised Code would explicitly make it an offence to provoke or excuse racial or other discrimination against individuals or groups by any means, including the printing and publication of material for the purpose. She referred to provisions of the present Criminal Code, which provided remedies against racial discrimination, but said that, although most racist and xenophobic offences were dealt with in the current Code, it was frequently by implication; the draft revised Code would list such offences explicitly. Referring to the media, the representative explained that an agreement on the principle of self-regulation of the media with regard to certain subjects had been reached between the Ministry of Social Affairs, the councils of Autonomous Communities and representatives of the media; it represented an important advance towards preventing the use of derogatory language about minority groups and ensuring objective reporting of events involving racial discrimination. The representative also provided some details about a number of specific cases of racist acts against particular individuals that had been referred to by members of the Committee in the course of the discussion and gave information on the proceedings that had been instituted against those responsible for such acts.

495. The representative acknowledged the difficulties for Committee members when information was provided orally rather than in a written report. She had taken note of all questions and of the complementary explanations requested. They would be covered in the next periodic report which was promised to be submitted before the next session of the Committee.

Concluding observations

496. At its 1066th meeting, on 17 August 1994, the Committee adopted the following concluding observations.

(a) Introduction

497. While the opportunity to continue the dialogue with the Government of Spain is welcomed, it is regretted that the report is excessively short and lacks basic information on the implementation of the Convention and has not been drawn up in accordance with the general guidelines established by the Committee for the preparation of States party reports. It is noted, however, that the additional information provided by the delegation in introducing the report and the comprehensive replies given to the questions raised in the course of the discussion enabled the Committee to obtain a clearer picture of the situation in the State party. Nevertheless, this oral information cannot replace the obligation of the Government of Spain to provide the written report on the measures adopted, as established in article 9, paragraph 1, of the Convention.

(b) Positive factors

498. It is noted with satisfaction that various measures have been adopted to prevent and intensify the struggle against racial discrimination and xenophobia. In that connection, appreciation is expressed for the new legislation enacted to ensure that administrative proceedings are conducted in the language chosen by the person concerned (Act No. 30/1992). The planned modifications of the Spanish Criminal Code, which is expected to introduce racial discrimination as an aggravating circumstance in offences against persons and will include new offences on the ground of racial discrimination, is welcomed, as are the active role of the media in the combat against racism and xenophobia and the various campaigns launched both by public authorities and non-governmental organizations to sensitize law-enforcement officials, government employees and the public at large against manifestations of racial discrimination.

(c) Principal subjects of concern

499. Serious concern is expressed at the increasing manifestations of racism and xenophobia against foreigners, in particular migrant workers, as well as acts of hostility against members of the Gypsy community and manifestations of anti-semitism and other racial intolerance.

500. Insufficient information was provided in the report about the demographic composition of the Spanish population, as well as on the number of foreign nationals residing in Spain. More comprehensive information is also requested about the division of responsibilities between the central Government and the Autonomous Communities.

501. Concern is expressed that the Spanish law enforcement officials have, in several instances, failed to provide effective protection to potential victims of xenophobia and racial discrimination.

502. Concern is expressed that the State party is not fully implementing the provisions of article 4 (b) of the Convention and it has not provided information on the practical implementation of the provisions of article 4.

503. No information was provided in the report on the implementation of the provisions of article 5 of the Convention. Concern is expressed about de facto discrimination against members of the Gypsy community in the spheres of housing, education and employment, and against migrant workers and foreign nationals in general.

504. It is also regretted that insufficient information was provided on the implementation of article 6 of the Convention, notably on the number of complaints of racial discrimination and available remedies, as well as the practice of the tribunals. More information was also necessary on measures to strengthen human rights education and training, in conformity with the provisions of article 7 of the Convention.

(d) Suggestions and recommendations

505. The Committee recommends that the next periodic report of the State party be submitted in time for consideration by the Committee at its next session in March 1995 and be prepared in conformity with the reporting guidelines.

506. The Committee expresses the wish that the next report of the State party should contain detailed information on the implementation of the provisions of the Convention. The State party is requested to respond, in its thirteenth report, to the various comments made by the members of the Committee during the consideration of the present report and to reflect the complementary information provided orally by the delegation in the course of the discussion. In particular, information is requested on the demographic and ethnic composition of the Spanish population and foreigners with residence in Spain; on the relationship between the central Government and the Autonomous Communities and their respective spheres of competence with regard to racial discrimination issues; on measures taken and progress achieved in implementing the National Plan for the Advancement of Gypsies and on the Government's policy towards Spaniards and Muslims in Ceuta and Mellila. The Committee also requests detailed information on actual cases of incidents of a racist or xenophobic nature and measures taken to ensure that such manifestations of racism are not permitted.

507. With regard to article 2 of the Convention, it is recommended that the next report should include sufficient information on the provisions of the Rights and Freedoms of Aliens Act, in particular, article 9. Information is also requested on the new law of asylum. More information should be provided on recent regulations and policies concerning foreign nationals. Information is also sought on the activities and complaints of the People's Advocate in matters relevant to the application of the Convention.

508. The Committee emphasizes that the State party should fully comply with its obligations under article 4 of the Convention and that necessary legislative measures should be taken in order to give effect to the provisions of that article. In view of the fact that a new draft criminal code will soon be submitted to the Parliament for approval, it is recommended that the requirements of article 4 be taken into account, as well as the suggestions of the Committee, in order to ensure full conformity of that new criminal code with the Convention.

509. The Committee recommends that information be provided in the next periodic report on the implementation of the provisions of article 5 of the Convention. The State party is requested to provide detailed information on cases of complaints of racial discrimination brought before the courts and on remedies made available to victims of racism and xenophobia, in accordance with the provisions of article 6 of the Convention. Information is also requested on the cases filed by the Defensor del Pueblo, as well as with the annual report he presents to Congress. The Committee would welcome any information that the State party is able to provide concerning the effectiveness of different measures in the field of teaching, education, culture and information in combating prejudice leading to racial discrimination. The Committee recommends that special attention should be given to the training and sensitization of law enforcement officials.

510. The Committee suggests that the State party consider making the declaration under article 14, paragraph 1, of the Convention recognizing the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation of any of the rights set forth in the Convention.

511. The Committee draws the attention of the State party to the amendment to article 8, paragraph 6, of the Convention, which was approved by the fifteenth meeting of States parties and by the General Assembly in its resolution 47/111, and encourages the State party to expedite its action formally to accept that amendment.

 †