Ahead of the 35th session of the Human Rights Council’s Working Group on the Universal Periodic Review (UPR) in January 2020, Fair Trials has made a submission on how broad counter-terrorism laws are adversely impacting human rights in Spain. The ambiguous laws have led to violations of freedom of expression, and its pre-trial detention practice, often combined with the counter-terrorism legislation, violates the right to liberty. The excessive discretion that Spain’s criminal law leaves to judges fundamentally undermines the rule of law in the country.

In 2015, Spain amended Article 578 of the Criminal Code to broaden its scope to include the crime of ‘glorification’ or ‘justification’ of terrorism and ‘humiliating the victims of terrorist crimes or their relatives’. The UN has raised concerns over the amendments and the potential impact of such broadly defined offences. Even though Spain has undertaken several commitments to protect the right to freedom of expression, it has failed to implement recommendations from the previous UPR cycle.

The overuse of pre-trial detention and lack of alternative measures remain systemic problems in Spain and the number of pre-trial detainees in the country remains high overall. Since the last UPR, there have been no legislative or practical developments that would reduce the use of pre-trial detention in Spain, nor are there any future plans to introduce such legislation. Terrorism charges have been applied to cases arbitrarily, which has had a significant impact on fair trial rights in Spain, in particular, on the abusive use of pre-trial detention, as courts tend to order pre-trial detention on unlawful grounds such as the gravity of the offence.

The Alsasua case demonstrates the arbitrariness: In October 2016, a group of young people were in a bar in the town of Alsasua in Navarre, Spain, when a fight broke out with two other men, who it transpired were off-duty police officers (Guardia Civil). In the clash that followed, one of the officers suffered a broken ankle. Victims Association COVITE (Colectivo de Víctimas del Terrorismo) complained that the facts amounted to terrorism, and the Public Prosecutor and State Attorney brought terrorism charges against the suspects, alleging that some of the youths were members of the non-violent social movement which supposedly had aims linked to the terrorist group ETA. In November 2016, 10 youths were arrested, and three were placed in pre-trial detention in different prisons. Their pre-trial detention lasted over one and a half years – from November 2016 until they were sentenced in June 2018.

In our submission, we point out three main concerns in the Spanish pre-trial detention practice: the fact that pre-trial detention is frequently ordered on the basis of unlawful grounds, the lack of alternative measures to pre-trial detention, and the potential length of pre-trial detention.

We call for the Human Rights Council and the Working Group to recommend Spain to:

Repeal Article 578 of the Criminal Code in line with Spain’s obligations under international human rights law to protect freedom of expression;

Ensure that pre-trial decisions at all stages include specific reasoning tailored to the individual case;

Ensure that the law provides for more alternative measures to pre-trial detention and their use in practice; and

Amend the law to include shorter maximum terms of duration of pre-trial detention.

Read the full submission and its recommendations here.