Statement of the United Nations Special Rapporteur on minority issues, Fernand de Varennes, on the conclusion of his official visit to Spain, 14-25 January 2019

Spanish

Madrid, 25 January 2019

Introduction

Good afternoon and thank you for coming.

I would like to take this opportunity to sincerely thank the Government of Spain for the invitation to undertake a visit to the country from 14-25 January August 2019 and for the cooperation, time and valuable cooperation of the Ministry of Foreign Affairs for the purposes of my visit.

The objectives of my visit were to identify, in a spirit of cooperation and constructive dialogue, good practices in, and possible obstacles to, the promotion and protection of the human rights of persons belonging to national or ethnic, religious and linguistic minorities in Spain in conformity with my mandate as Special Rapporteur on minority issues. More specifically, this mission’s purpose was to propose possible ways of addressing existing lacunae or gaps, and in particularly identify pathways so as to improve the effective implementation of Spain’s international human rights obligations in relation to the rights of minorities.

The overall aim of the visit was therefore to take a closer look at existing legislation, policies and practices for the protection and promotion of the rights of persons belonging to national, ethnic, religious or linguistic minorities. I wanted to explore aspects pertaining to minorities in areas of particular significance such as in education, the use of minority languages, housing, employment, the administration and justice, access to health and other public services, the participation of minorities in the political process, and efforts to combat hate speech and other forms of intolerance directed at minorities, including islamophobia and antigypsyism. I also wanted to get a better sense of the normative framework regulating human rights in general, and particularly those of minorities including latest amendments to relevant legislation, acts and other mechanisms that have been established in that regard. These aspects of the mission are important in order to better understand the barriers to inclusion experienced by some minority communities, why other minorities may be distrustful of state public entities and mechanisms, or have grievances in relation to what they perceive as the negation of their human rights or the deeply felt rejection as members of society because of long-standing prejudices or bias.

As I often explained on previous country missions and in my meetings in exchanges during this period, minorities must be understood in relation to my mandate that refers only to a numerical category as to whether a linguistic, religious or ethnic group are less than half the population in the country. It has no negative connotation, does not depend on official recognition, is not affected by regional or other forms of autonomy arrangements, and does not involve any issue of domination, subservience or socio-economic status.

During my twelve-day visit I attempted to meet with the widest spectrum of stakeholders at the governmental level, both national and regional, NGOs, institutions working on various aspects affecting minorities and importantly minority communities themselves and their representatives, especially in different parts of the country. I have met with high-level representatives of a number of ministries and other governmental entities including the Ministry of the Presidency, Relations with the Cortes and Equality, the Ministry of Foreign Affairs, European Union and Cooperation, the Ministry of Justice, the Ministry of the Interior, the Ministry of Education and Vocational Training, the Ministry of Labour, Migrations and Social Security, the Ministry of Ministry for Territorial Policy and Public Function, the Ministry of Culture and Sport, and the Ministry of Health, Consumption and Social Welfare. I also met with the Spanish General Prosecutor and members of his office, the Supreme Tribunal, members of the Senate as well as from the Congress of Deputies of Spain. As for Autonomous Communities, I was able to meet with authorities in Andalusia, Basque Country, Catalonia and Galicia. I was also able to meet with the Spanish Ombudsman (Defensor del Pueblo) and members of his teams, as well of those of the four Autonomous Communities visited.

In terms of minority communities, by far the most frequently met minority and their representatives were those of the Roma, in part because Spain holds Europe’s second largest population with some 750,000 Roma¹, but also because they remain among the country’s most marginalized and vulnerable, with antigypsyism still widespread and deeply entrenched in social and cultural attitudes and institutional practices. I additionally met or had discussions during my mission with NGOs working for, or representatives of, the Asturian, Balearic, Basque, Catalan, Galician, and Valencian communities, representatives from Muslim and Jewish minorities, migrants from Morocco and others, as well as visited the localities of Barcelona, Bilbao, Santiago de Compostela, Sevilla and Vitoria in the Autonomous communities of Andalusia, Basque Country, Catalonia, Galicia and the national capital of Madrid. As part of my mandate, members of the Deaf and hard of hearing community who use Sign Language are considered to be members of a linguistic minority and I have also met with their representatives accordingly. I also talked to community leaders, lawyers, human rights defenders, women, youth and community workers.

I am grateful to the Government for the collaboration before and during the visit. To everyone who met with me, I want to express my gratitude for their readiness to engage in an open dialogue to better understand and assess the human rights situation of minorities in the country.

This statement contains only my preliminary observations. I will submit my final report to the March 2020 session of the United Nations Human Rights Council, and accept submissions from all interested persons and organisations until September 2019.

Positive steps and developments

The enormous strides made by Spain in the field of human rights since it transited to a democracy in the period of 1977-78 are not always fully appreciated or sufficiently acknowledged. Spain’s 40 years of democracy has led to a modern and dynamic state fully engaged in European and international institutions, with an effective government, an independent judiciary, and forms of autonomy that in part respond to the reality of a state with a very rich and historical diversity. Spain is thus not a federation, but a highly decentralized unitary state. The country’s 17 Autonomous communities have however greatly contributed to the more effective political participation of the country’s largest minorities such as the Basque, Catalan, Galicians, and others, as well as provided means of recognizing and implementing their rights in areas such as language and culture. This has also been a defining development in the country’s path to a democracy that is more inclusive and embraces its historical diversity and the reality of its rich tapestry of languages, cultures and religions.

It has over the years made many legislative, institutional and policy strides in areas such as human rights protection, gender violence and the inclusion of Roma communities, though many of these were hard hit during the severe 2008-2014 financial crisis. The establishment of operational plans in order to implement the National Roma Integration Strategy in Spain 2012-2020, along with numerous other measures, have for example undoubtedly contributed to a decrease in illiteracy, an increase in school attendance and other positive and measurable outcomes. Spain has also recognized Spanish sign languages in 2007 and taken steps to ensure their use in a number of areas. Recognition and support of Catalan sign language should nonetheless be further encouraged. There have been innovative initiatives also in order to better assist and integrate increasingly significant numbers of migrants and foreigners arriving and staying in Spain, such as Moroccans and Romanians, including some provision of information and assistance in their languages. 

Spain must be commended for these and other measures which will be more fully outlined in my final report, but as was observed on a few occasions, human rights issues in relation to minorities at times feels like an ‘unfinished story”. These include continuing challenges or lacunae in a number of cross-cutting matters, as well as to specific issues for long-established and more recent arrivals.

Cross-cutting themes

Disaggregated date

Spain, along with some other countries, does not systematically collect disaggregated data on its population languages, cultures or religion – but does as to the gender and nationality (in the sense of those who are citizens of Spain or foreigners) of the population. This is not helpful when it comes to having precise information on the population of a country to design better targeted and effective government evidenced-based policies and programmes. As I have maintained on other country missions, such data allows governments to plan programmes so as to reach those most in need, and this is particularly true to measure the impact of policies and programmes of those who are most vulnerable and marginalized, including minorities.

This approach seems to be due mainly to misplaced privacy considerations to protect personal data, since personalized information can be removed from censuses and other useful disaggregated data collection – as is done for the data collected on gender in many other countries. As some international and European organisations have noted, this makes it particularly difficult to identify effectively those experiencing discrimination and to adequately build evidence-based policies to guarantee respect for access to a variety of services and full compliance with even basic rights such as education. Authorities need to pursue and expand their efforts to improve practices of obtaining reliable equality data broken down by ethnic or national origin, language, religion and culture, in full respect of the relevant international data protection standards, in order to increase the effectiveness of measures designed to promote the full and effective equality of persons belonging to national minorities.

For example, clear and objective assessments on the impact of different educational models using immersion, bilingual or multilingual teaching used throughout Spain would be greatly beneficial to dispel inaccurate and unhelpful claims and accusations on the pedagogical impact of these models on academic performance generally and on competence in the national and co-official languages. Such empirical evidence has apparently ceased to be collected since 2010 by the Ministry of Education’s Instituto de Evaluacion.

It is in my view, as it is that of most if not all international observers, that disaggregated data is indispensable to ensure that positive measures to address human rights issues, including those of minorities, are effective. It was clear to me, particularly from civil society parties, that the lack of collection of data is viewed with frustration and is viewed as preventing concrete progress on human rights issues involving Roma, persons of African-descent, migrants and others.

I would urge that Spanish national authorities pursue efforts towards obtaining reliable disaggregated data broken down by ethnic or national origin, language, religion and culture, in full respect of the relevant data protection standards, in order to increase the effectiveness of measures for the protection and promotion of the human rights of minorities.

I would also recommend that in the field of education, the Ministry of Education’s Instituto de Evaluacion resume the collection of data on levels of competency in the acquisition of fluency in Castilian and co-official languages throughout the country.

Law enforcement and judicial authorities

A number of minority groups I met, such as those who may be considered most vulnerable or marginalized such as the Roma, persons of African Descent and migrants, have vividly expressed how they remain distrustful and at times fearful of police forces and even the judiciary. While for some migrants this may be connected to their precarious situation as not being legally in the country, others shared stories of ethnic profiling, harassment, ridicule and even violence from those who are supposed to protect. I was also made aware that there continues to be large numbers of complaints to the Ombudsman alleging excessive stops and searches.

Even though ethnic profiling is prohibited and despite the praise-worthy steps towards eliminating this practice, such as training of national police, more needs to be systematically included to effectively and specifically address the phenomenon described as endemic in the recent 2018 report of the Working Group of Experts on People of African Descent on its mission to Spain. It noted how provisions in the Law on the Security of Citizens which impose large fines for filming law enforcement agents and reversing the burden of proof have had the perverse effect of minorities underreporting discriminatory acts by law-enforcement officials or failing to investigate and prosecute perpetrators of crimes against minorities, and in particular people of African descent. This was also brought up in some of my meetings with representatives of migrant communities as a significant factor of the distrust of the police and even judiciary, with minorities feeling unable to present their allegations since filming such incidents is illegal, and they have to assume the burden of proof for any allegation of police misbehavior.

While a reporting formula was developed and proposed which would have required law-enforcement officers to identify potential situations of ethnic profiling in their interactions with members of the public, this has apparently until now only been used by Madrid municipal police.

Human Rights Framework

Spain has broadly speaking a comprehensive legal framework for the protection of human rights as it has ratified all the major international human rights treaties, with the exception of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Other legislation deal with different human rights guarantees, and overall Spain can be said to have a well-developed and fairly extensive human rights architecture.

Article 14 of the Constitution indicates that “Spaniards shall be equal before the law, without discrimination of any kind based on birth, race, sex, religion, opinion or any other personal or social condition or circumstance”, while Article 23 of the Organic Act No. 4/2000 defines discrimination as any act against a foreigner on the basis of race, colour, descent, national or ethnic origin or religious beliefs and practices. Though both texts cover, under a broad interpretation, all grounds of discrimination, they do not specifically include language – an omission that is potentially inconsistent with a number of international treaty obligations for which this characteristic is fundamental.

Furthermore, the suppression a few years back of human rights education as a distinct course in schools is not particularly helpful and should be reconsidered.

Racism, xenophobia and hate speech

Minorities such as the Roma, persons of African Descent, migrants and religious minorities such as Muslims are usually the main targets and victims of intolerance, though because of events in Catalonia in 2017 I was made aware of claims also of an increasing number of incidents involving members of the Catalan minority.

Spain has on the one hand developed a number of policies and approaches to these challenges which must be commended, including proposed more comprehensive organic law on discrimination and a comprehensive strategy against racism, racial discrimination, xenophobia and other related intolerance. It has also established institutional structures at the national, provincial and local levels including the Council for the Elimination of Racial or Ethnic Discrimination, as well as specialized offices for hate crimes in provincial prosecutorial offices in the country, an inter-institutional Memorandum of Understanding among national public administration institutions, including civil society organizations as observers, and an Observatory on Racism and Xenophobia, which has developed training programmes for a number of government officials, including in law enforcement, and specific programmes for the promotion of non-discrimination actions in different areas (health, education, internet, etc). On the other hand, concerns were expressed to me that many of these were developed either without direct input or representation from the minorities affected, or still do not necessarily result in concrete implementation actions. Situations such as the negative stereotypes of Roma such as news items in which Roma are portrayed in a negative light, or in criminal cases where a defendant’s ethnic origin is regularly revealed when a Roma is involved is recurrent, and largely unaddressed by Spanish authorities despite the many initiatives and policies currently in place. There also appears to remain difficult challenges surrounding the use dissemination of racist, xenophobic and anti-Semitic messages on the internet and social media networks which also need to be addressed more forcefully than permitted or practiced under current legislative and regulatory schemes.

Further efforts are needed to combat all forms of racism, xenophobia and intolerance. In my view it should be a priority that alleged cases of hate speech committed on the internet and in the media be more effectively investigated, prosecuted and sanctioned.

The full report will explore more comprehensively these issues. A comprehensive review of school textbooks to incorporate more inclusive and positive portrayals of Spain’s diversity, as well as awareness-raising campaigns and other activities for the general public celebrating and including its rich association with many cultures, languages and religions as integral parts of modern Spanish society should be considered.

Specific Minority Issues

Roma

Many Roma are highly integrated in parts of Spain, but still too many face significant socio-economic disadvantage and even exclusion, and continue to face discrimination and prejudice in areas such as education, housing and employment. It was, for example, perplexing to hear that for the single most important area of economic activity for Roma, street trade, regulation varies from locality to locality, and can be subject to numerous vagaries or often arbitrary and dismissive –even discriminatory – treatment. It would seem sensible to address this nationally so that this traditional and central economic activity can be carried out more effectively, and be a positive step for a more responsive and inclusive acknowledgment of this dimension of Roma identity. Another area of concern is that Roma are almost not represented in elected political bodies at the national, regional or municipal levels.

These and other issues are too numerous and complex to outline in this preliminary declaration and will be much more fully developed in my final report. I would however like to highlight just one: the continuing presence of segregated schools and the need to combat negative stereotyping with a much more positive image of the contributions of Roma people in Spain in a more proactive way.

Despite uncontested, and also commendable, efforts and progress in the field of education in terms of increased literacy rates in recent years, about 64% of Roma children still do not complete compulsory secondary education, whereas for the general population this figure is around 13%. I was informed that though this is not condoned by Spanish authorities, there are in some parts of the country public schools such as in the region of Sevilla where as many as 90% of students are Roma, partly as a result of non-Roma parents sending their own children to other schools (which they are legally allowed to do) instead of being seated next to Roma. The significant Roma population in the immediate area of the school in and of itself did not explain this high concentration of Roma students.

There does not appear to be any specific national plan or programme to eliminate this de facto educational segregation, though there is a National Roma Integration Strategy 2012-2020 that includes a specific line of action for developing measures to avoid the concentration of Roma pupils, nor a national study to detect its extent or plan to combat the phenomenon, which seems to me to be essential.

I would therefore suggest that future inclusion plans systematically include measures to implement strategies to avoid and reduce the concentration of Roma students in those regions where this problem is still occurring. I was at the same time impressed by Roma parents and activists I met in Sevilla who were eloquent in their firm belief in the importance of quality education for their children, of Roma women university graduates who provide powerful role-models for future generations, of the committed teachers and other officials of the Government of Andalusia working tirelessly towards a more inclusive society, and for others who emphasized how necessary it was to challenge and take steps to displace the negative stereotyping that keep dragging down members of this minority community.

I would urge that programmes to promote the full and effective equality of Roma be designed and effectively monitored, in consultation with representatives of the Roma communities, instead of too often being designed and monitored “for them” by others.

Minorities, Language and Participation

The 2017 Practical Guide on the Linguistic Rights of Linguistic Minorities published under the mandate of the UN Special Rapporteur on minority issues emphasizes the central role and importance of language for linguistic minorities, and what are state obligations under various UN treaty obligations and other instruments. The competence of Autonomous communities in the fields of education, social services, and other areas has led to a variety of models and practices being adopted in different Autonomous communities and reflect quite diverse contexts and populations and expectations.

One concern encountered on a number of occasions in meetings with civil society organisations and others from the Baleares, Basque Country, Catalonia, Galicia and Valencia was the feeling, particularly in the areas of education, law-enforcement, and the judiciary in some communities, that there was a disconnect between the claimed status of co-official languages and the extent of their actual use and of implementation of legislation. For example, it was pointed out that judges and law-enforcement officials such as the national police are not subjected to any requirement of knowledge of a co-official language even when based in an Autonomous community. It has been suggested that this leads to a significant number of grievances and frustration in some Autonomous communities, and to unfortunate misunderstandings and even denial or discrimination in access to public services. As recommended by other international organisations, including the Committee of Ministers of the Council of Europe, provisions such as Article 231 of the Organic Law of Judicial Power is a prominent obstacle to Spain’s full implementation of its international obligations in relation to the use co-official minority languages since it stipulates that in judicial procedures, judges, magistrates, prosecutors, clerks and other officers will use the Castilian language, and that co-official minority languages will only be allowed if no parties objects. This in practice has led in many if not most cases to criminal, civil and administrative judicial authorities not allowing proceedings in Autonomous communities in the co-official minority language, even if requested by one party. This blanket obstacle to the use of a minority co-official language give rise to concerns as to compliance with international human rights obligations which will be outlined in the final report.

As for education, the absence of empirical data on the impact of different educational models using immersion, bilingual or multilingual teaching methods since 2010 throughout Spain is unfortunate and unhelpful, feeding feelings that state authorities may not be fully fulfilling their obligations as to the rights of minorities in the area of the use of language in education, as well as concerns from parents of non-minority pupils that they may be subjected to educational regimes that are harmful to their children’s academic achievements.

Linguistic minorities have a right to the use of their language in their interactions with state authorities and institutions where it is reasonable and justified, to an appropriate degree in proportion to their population. Spain made significant strides which fulfilled most of these obligations during the transition to democracy and set up Autonomous communities and to a large degree was able to put in place in practical and realistic form these obligations flowing from human rights obligations as explained in the 2017 Practical Guide on the Linguistic Rights of Linguistic Minorities. The full report will however consider more closely a number of areas where there may be gaps in the effective implementation of these rights, particularly in education, law-enforcement, and the judiciary, as well as the rights of persons whose minority languages are outside of these communities, and in particular those without any official status, that may be particularly difficult to assert such as in Asturias and Navarre.

The UN Special Rapporteur on freedom of opinion and expression issued a statement on 6 April 2018 urging Spanish authorities to refrain pursuing criminal charge of rebellion against political figures and protesters belonging to the Catalan minority. He indicated that such charges for acts that did not involve violence or incitement to violence could interfere with rights of public protest and dissent. Though he considered the matter strictly from the point of view of freedom of opinion and expression under this mandate, I also join his concerns in terms of the signal this gives to minorities more generally, since non-violent political dissent by minorities should not give rise, as the Special Rapporteur points out, to criminal charges since such restrictions should only be imposed where they are strictly necessary and proportionate.

The Deaf Community and the Use of Sign Language

Members of the Spanish Sign Language minority have seen considerable progress made in Spain since the adoption of legislation in 2007 which provides for the legal basis and conditions for using sign language in state institutions and services.

Attitudes have also shifted from one simply considering sign language as a tool to compensate for a handicap to one which begins to acknowledge that it is a fully functioning language and that users of sign language are distinct. Current national legislation however has not changed from a “sign language as tool” to a “language as right” stance.

Such a shift would be welcome since, despite the 2007 legislation, there is still reluctance in some schools to set aside the resources for teaching in sign language for children who are deaf, and implementation of the law itself still appears weak.

I would suggest legislative changes, and even constitutional recognition, may be appropriate so as to ensure that Spanish Sign Language is more clearly acknowledged as a full-fledged language. Additionally, this should be extended to Catalan Sign Language, which is also a distinct language.

My visit comes to an end today. I however look forward to continuing my collaboration with the Government of Spain, civil society actors and minority organisations and communities, particularly through follow-up to the recommendations I have made above. I stress that today’s observations are preliminary findings only and will be further developed by additional research and consultations with the Government and other relevant stakeholders. My full report and recommendations will be presented to the United Nations Human Rights Council in March 2020.

I once again take this opportunity to thank the Government and in particular officials of the Ministry for Foreign Affairs, as well as my mandate’s Human Rights Advisor and the UN interpreters who were with me on this mission, and all of those who took time to meet with me and provided information and assistance.

I thank you for your attention and will be pleased to answer any questions you may have.

END

Note:

1. The absence of disaggregated data means this is a broad estimate only, with actual numbers being possibly anywhere between 500,000 and 1,000,000.