This statement was originally published on hrw.org on 9 March 2015.
The Spanish Senate should scrap a flawed draft law on public security that would undermine rights protections, Human Rights Watch said today. The bill, approved by the lower house of Parliament, includes provisions that infringe on the rights to freedom of expression and peaceful assembly, unjustifiably penalize vulnerable groups, and violate international norms on asylum. The Senate is expected to vote on the bill on March 10, 2015.
“Although it's better than the government's original draft, the legislation still undermines fundamental rights in myriad ways,” said Judith Sunderland, senior Western Europe researcher at Human Rights Watch. “The Senate should take this last chance to ensure that the Spanish government doesn't erode basic rights and freedoms in Spain.”
The draft Law on Public Security would limit when and where protests may take place, and impose steep fines on those who hold spontaneous protests. Provisions that impose similarly high fines for “lack of respect” for law enforcement officers, would stifle freedom of speech. In addition the bill takes a punitive approach to the homeless, sex workers, and people who use drugs.
When governments introduce measures that will restrict human rights and in particular that have a regressive impact, they have an obligation to justify their necessity. The Spanish government has failed to make a convincing case that the powers it is seeking to introduce are necessary and can justify limiting basic civil and political rights, Human Rights Watch said.
The government is also trying to use the bill to formalize an ongoing but unlawful practice of summarily returning migrants, including people who might be asylum seekers, from Spain's enclaves in North Africa.
Despite some improvements following significant criticism from nongovernmental organizations and authoritative national and international rights bodies, the bill retains serious flaws that contradict international human rights standards, Human Rights Watch said. On February 23, a group of UN human rights experts called on Spain to reject the “gag law,” as opposition groups call the bill, as a threat to “individuals' fundamental rights and freedoms.”
Details of problematic provisions
Problematic provisions relating to the right to peaceful assembly include:
- Fines up to 600 euros for not notifying authorities in advance of meetings or demonstrations in public areas, even if there is no harm to people or property or disturbance of the public order;
- Fines up to 600 euros for not following the itinerary approved or imposed by authorities during a demonstration, even when the result is only minor disturbances;
- Fines up to 30,000 euros for serious disturbance of public safety during demonstrations in front of Congress, the Senate, or regional legislative assemblies, even when not in session. The bill stipulates that the fines will apply unless the “serious disturbance” constitutes a criminal offense liable to prosecution. Activists are concerned that the measure is intended to discourage protests that target national and regional legislative bodies per se. Instead, authorities should facilitate demonstrations within sight and sound of the demonstration’s object and target audience;
- Fines up to 30,000 euros for obstructing any public authority or employee enforcing compliance with agreements or administrative or judicial resolutions, if the action does not constitute a crime. This provision appears tailor-made to suppress organized gatherings to prevent evictions for mortgage default and rent arrears. Groups such as the Platform for Mortgage Victims and Stop Desahucios (evictions) regularly organize gatherings intended to block forcible evictions, contending that they violate the right to adequate housing; and
- Fines up to 600,000 euros for holding spontaneous meetings or demonstrations, i.e. without notification, in or “in the proximity of” infrastructures or facilities that provide basic services, including transportation hubs, nuclear plants and refineries, utilities installations, and telecommunications infrastructure, when the gatherings created a risk to people. Such meetings or demonstrations leading to a “serious interference” with the basic service could be subject to fines of up to 30,000 euros. This broad restriction on where demonstrations may take place could effectively be used to put an end to many peaceful protests.
The European Court of Human Rights has repeatedly affirmed that the prior notification requirement should not constitute an obstacle to the right to peaceful assembly, and has emphasized that authorities should show tolerance toward peaceful gatherings if freedom of assembly is not to be deprived of all substance. The United Nations special rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiaia, has recommended to all countries that spontaneous assemblies should be legal.
The draft law would also interfere disproportionately with the right to freedom of expression with:
- Fines up to 30,000 euros for “unauthorized use of images or personal or professional information about authorities or law enforcement officers that would endanger their safety or that of protected areas or place at risk the success of an operation.” The broad criteria make it likely that the provision could be used against photojournalists and ordinary citizens who record or publish photos or video of public operations and interventions. There is serious concern that the threat of these fines will lead to self-censorship to the detriment of accountability for abusive behavior such as excessive use of force by law enforcement officers; and
- Fines of up to 600 euros for “lack of respect and consideration of a member of security forces during the exercise of his duties…when this behavior does not constitute a crime.”
The European Court of Human Rights considers that public authorities, including law enforcement officers, must accept a certain level of criticism, even offensive insults. In the case of Thoirgerson v. Iceland, for example, the Court ruled that calling the police “beasts in uniform” was protected speech and that a defamation conviction on those grounds was capable of discouraging open discussion of matters of public interest and was neither proportionate nor necessary.
The bill would make life even harder for marginalized people living and working on the streets, with a punitive approach that undermines social inclusion and a range of basic human rights:
- Individuals who lead to the vaguely defined “degradation” (“deslucimiento”) of public property could be fined up to 600 euros. Nongovernmental organizations in Spain are worried this could lead to homeless people being fined for sleeping on a park bench or sitting on a street corner;
- The bill also removes the possibility of suspending the existing fine of up to 30,000 euros for public consumption or possession of illegal drugs or leaving drug use equipment in a public place. Currently the fine can be suspended if the individual enters a rehabilitation program. But under the bill only those under 18 will have this option. Nongovernmental organizations in Spain say that the possibility of suspending the fine has proven effective in helping people who use drugs get services and that the change will have a regressive effect; and
- Those who seek out or accept paid sexual services in public areas near where children congregate, such as playgrounds or schools, could be fined up to 30,000 euros. Sex workers in these areas would be subject to fines if they ignore a police warning. Regulation of sex work is within the government’s discretion, but measures need to respect human rights standards, should not place sex workers at risk, and need to be precisely and narrowly formulated so they cannot be abused to facilitate harassment and discrimination. The wording is vague enough to allow just that.
The bill, though amended to improve safeguards, places migrants and asylum seekers at risk by allowing the summary return to Morocco of anyone caught attempting to cross over the fences along the enclave borders in a group. National and international human rights groups, including Human Rights Watch, the UN refugee agency, UNHCR, and the Council of Europe Commissioner for Human Rights have all called on the Spanish parliament to reject this measure.
The last-minute amendment stipulates that returns must comply with international norms and enshrines in law the government's initiative to create “asylum offices” at the enclave borders, as well as its pledge to draw up clear protocols for Spanish security forces at these borders. While positive, these measures must be appropriately implemented to ensure that all those seeking protection have the chance to do so, Human Rights Watch said. The government should not presume that no one attempting to cross the fence has a protection claim.
Although the asylum offices will be inaugurated officially before the end of March, the one in Melilla has been operating since September. According to CEAR, Spain's main refugee organization, as of mid-February 440 people had submitted applications, all of them Syrians. In order to access the Spanish side, individuals must first go through official Moroccan exit checkpoints. The majority of those who attempt to enter the enclaves by climbing the fences are sub-Saharan Africans, usually in large groups to evade Moroccan security forces. There remain serious concerns that many people, including those wishing to apply for international protection, will resort to the fences because they are unable to access the official border posts.