Draconian reforms to two pieces of Spanish legislation are an assault on the rights of its citizens as well as an attempt to formalize abusive practices against migrants and refugees, said Amnesty International ahead of a vote in parliament this afternoon.
A double whammy of proposed reforms to the Criminal Code and the Law on Public Security will restrict rights to peaceful assembly, association and freedom of expression. It will also introduce new anti-terror measures and legalize the unlawful push-back of migrants and refugees from Spain’s enclaves of Ceuta and Melilla in North Africa to Morocco.
“Today is a sad day for Spain with these reforms representing a multi-pronged attack on a raft of rights,” said Gauri van Gulik, Amnesty International’s Deputy Director for Europe.“The draconian amendments will undermine both the rights of Spanish citizens and those of migrants and refugees in search of sanctuary in Ceuta and Melilla.”
‘Legalizing’ unlawful push backs of migrants and refugees
The new amendment to Spain’s immigration law contained in the Law on Public Security will come into immediate effect. It will lead to the automatic and collective expulsion of migrants and refugees from the borders of Ceuta and Melilla by introducing a new administrative practice dubbed “border rejections” (rechazo).
Summary returns of migrants and refugees back to Morocco without formal procedure denies them access to the asylum procedure in Spain and exposes them to the real risk of human rights violations upon return.
An assurance contained in the amendment that the border rejections “will be carried out in compliance with international human rights and international protection norms” rings hollow. The amendment fails to describe how the rights of those trying to cross the border will be upheld during these rejections.
“Already vulnerable migrants seeking safety in these enclaves are being rounded up and returned to Morocco,” said Gauri van Gulik.“Instead of ending this unlawful practice, the government is making up its own rules and trampling over the rights of these people and on Spain’s own international obligations.”
Proposed reforms to the Spanish Criminal Code expand the range of crimes defined as “terrorism” using vague language and overly broad categories of offences. The definition of terrorism has been expanded to include, “resistance” against public authorities and “recklessly”, including unwittingly, supporting a terrorist enterprise.
Suspected travel, or planned to travel, outside Spain to collaborate with militant groups or to train with them, even if no such training occurs or no criminal act is committed, will be outlawed. Information sharing, particularly with foreign security services, raises the prospect of evidence extracted under torture being shared and used for intelligence purposes.
Making a statement on social media that could be “perceived” as inciting others to commit violent attacks will be outlawed, even if the statement cannot be directly linked to an act of violence.
These restrictions threaten the rights to freedom of expression and association, the presumption of innocence, freedom of movement, the right to privacy, and the right to leave and return to one’s country.
“If we have learned anything over recent years, it is that governments’ excessive reactions to violent attacks can lead to unnecessary and abusive laws and practices,” said Gauri van Gulik.“Spain must heed that lesson and ensure that any new measures are absolutely necessary and proportionate, clearly aim to keep people safe, and uphold human rights in the process. The proposed reforms do not meet these tests.”
Restricting protest, freedom of expression and peaceful assembly
The Public Security Law’s new offenses unduly restrict the rights of freedom of peaceful assembly and expression, criminalizing some legitimate forms of protest and increasing penalties for others.
The new provisions contain limitations on where and when demonstrations can take place, including a ban on “spontaneous assemblies” in certain places and fines for those who organize them.
Police officers will be given broad discretion without procedural safeguards to fine people who show a “lack of respect” towards them. Likewise a “gag law” restricts the video recording of police with fines of up to 30,000€ imposed on those who disseminate footage. In recent years, footage recorded during public demonstrations has been essential to prove excessive use of force and other abuses by police during policing of demonstrations.
Government authorities rather than courts will impose fines for numerous public order offenses, risking fair trial guarantees. Since the standards of proof in administrative proceedings are lower than in criminal proceedings the shift of some offenses from the Criminal Code to the Law on Public Security will mean less safeguards. The presumption will be that versions of events given by police officials are truthful and correct.
Further curbs on protest are contained in the amendments to the Criminal Code that introduce significant changes to the crime of public disorder. Certain crimes are redefined as “aggravated” when, among other things, they take place in the context of demonstrations or large assemblies. The definition of “obstruction” is so ambiguous that it could include acts of passive resistance potentially putting them on an equal basis with violent acts.
The vague definition of new or amended offenses means that they could be applied to conduct that is protected under international human rights law. In this sense, the new legislation breaches the requirement of legal certainty, namely that laws should be formulated with sufficient precision.
“Spain is taking a serious backward step for freedom of expression and assembly. Fear of terror and public disorder should not be utilized to discourage people from protesting peacefully and to increase police impunity.”
A final vote on these reforms is expected to take place after the plenary session in the late afternoon/early evening.
Amendments to Spain’s immigration law (Organic Law 4/2000) concerning “border rejections” in Ceuta and Melilla will become applicable the day after the new Law on Public Security is published in the Official Gazette, expected tomorrow.
Other provisions in the new Law on Public Security and the Criminal Code will come into force as of 1 July 2015.
Push backs of migrants and refugees
Any return or transfer that denies individuals an opportunity to appeal the measure and explain their individual circumstances is prohibited under international law and may lead to violations of the right to seek asylum and the non-refoulement obligation.
The amendment to the immigration law suggests that asylum applications can be submitted at asylum offices recently opened at official border crossings in the enclaves. However, these offices are not accessible to Sub-Saharan Africans as they are unable to exit through the Moroccan border crossing points to reach the Spanish ones. This means that they would need to continue taking the risk of jumping the fences surrounding the enclaves or take a boat to get into Spain.
On 6 February 2014, at least 14 migrants swimming from Morocco drowned in waters off Ceuta after the Spanish Civil Guards fired rubber projectiles and tear gas in their direction in an attempt to prevent their entry to Spain.
On the same day, 23 people who had survived the swim across and reached the Spanish beach were returned to Morocco without access to any formal procedure.
Restricting protest, freedom of expression and peaceful assembly
Reforms of the Criminal Code and the Public Security Law were introduced in response to the recent austerity protests in Spain and modified a number of offenses related to public order. Under the Law on Public Security sanctions are imposed by government authorities and judicial remedy is only available at a very late stage. In an administrative procedure the burden of proof is placed on the accused whilst in a criminal procedure, both the testimony of the police officer and the accused is viewed with the same level of credibility.
Whilst spontaneous assemblies were already outlawed in Spanish law the reform on the Law on Public Security: 1) retains fines on unauthorized demonstrations without taking account of new forms of spontaneous protest; 2) punishes “public disturbances” (without defining them) during demonstrations in front of the national and regional parliaments with a fine of between 601€ and 30,000€. This applies even if parliament is not sitting and equates banned or violent demonstrations in front of the national parliament with those that are spontaneous but peaceful.