GENEVA (23 February 2015) – A group of United Nations human rights experts* urged Spain today to reject two projects of legal reform that “threaten to violate individuals’ fundamental rights and freedoms.” The experts’ call comes after the Congress fast-tracked the approval of a proposal to reform of the Penal Code, regarding crimes of terrorism.
“We trust that Spain will take all necessary steps to guarantee the exercise of fundamental rights and public freedoms in its national legislation, in accordance with international standards,” the experts said in reference to this proposal as well as to two additional projects of reform currently being discussed in the Senate: the Reform of the Penal Code, regarding the crimes of public disorder, and the Reform of the Basic Law on the Protection of Public Security.
“The rights to peaceful protest and to collectively express an opinion are fundamental to the existence of a free and democratic society,” the Special Rapporteurs said. “We are concerned that the reform proposals could be a response by the Government and the legislature to numerous demonstrations that have been carried out in Spain in recent years.”
Penal Code reform project
The independent experts stated that “the text of the reform project includes broad or ambiguous definitions that pave the way for a disproportionate or discretionary enforcement of the law by authorities.”
For example, the reform project treats as ‘aggravating factors’ a number of offenses that may be committed in the context of a ‘large gathering’. “A legal basis for this new type of ‘aggravating factors’ is being sought in order to automatically increase the penalty in cases of protests. This is contrary to international law since it could have a chilling effect on the exercise of freedom of peaceful assembly,” stressed the UN Special Rapporteur on the rights of peaceful assembly and association, Maina Kiai.
The reform project also proposes prison sentences or fines as punishment for those who publicly disseminate messages or slogans that incite the commission of crimes of public disorder or serve to strengthen the intention to carry them out. In this regard, the UN Special Rapporteur on the right to freedom of expression, David Kaye, said that “the wording of the law is problematic and the crimes, as defined, could criminalize those who convene peaceful demonstrations.”
Moreover, the UN experts noted that the definition of terrorist offenses and provisions relating to the criminalization of acts of ‘incitement and glorification’ or ‘justification’ of terrorism’ contained in the reform project of the Penal Code regarding the crimes of terrorism, are too broad and vague.
“As drafted, the anti-terror law could criminalise behaviours that would not otherwise constitute terrorism and could result in disproportionate restrictions on the exercise of freedom of expression, amongst other limitations,” the Special Rapporteur David Kaye noted. “The project of law could also allow for misuse in the oversight and removal of information available online.”
Reform project of the Basic Law on the Protection of Public Security
“The so-called ‘gag law’ violates the very essence of the right to assembly since it penalizes a wide range of actions and behaviours that are essential for the exercise of this fundamental right, thus sharply limiting its exercise,” the Special Rapporteur Maina Kiai stated.
“This project of reform unnecessarily and disproportionately restricts basic freedoms such as the collective exercise of the right to freedom of opinion and expression in Spain,” Mr. Kaye added.
Furthermore, the provisions of the reform project concerning the special status of Ceuta and Melilla, “could allow on the spot deportation to their countries of origin of persons at risk of being subjected to torture and other forms of ill-treatment, contrary to the provisions of international human rights law,” the experts said.
“Considering the impact that such laws can have on fundamental rights and freedoms, they must be worded carefully and cannot be adopted in haste,” the experts concluded.
The warnings from both independent experts were endorsed by the UN Special Rapporteurs on human rights and counter terrorism, Ben Emmerson; on the human rights of migrants, François Crépeau; and on the situation of human rights defenders, Michel Forst.