Joint letter to EU Commissioners: Spain’s Basic Law for the Protection of Public Security, a threat to the rights of assembly and asylum

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Mr Frans Timmermans
First Vice-President of the European Commission, EU Commissioner incharge of Better Regulation, Interinstitutional Relations, the Rule of Law andthe Charter of Fundamental Rights

Mr Dimitris Avramopoulos

EU Commissioner in charge of Migration, Home Affairs and Citizenship

Ms VĕraJourová

EU Commissioner in charge of Justice, Consumers and Gender Equality

12 February 2015

Re: Spain’sBasic Law for the Protection of Public Security, a threat to the rights ofassembly and asylum

Dear Vice-President,

Dear Commissioners,

The undersigned organisations are writing to you to express their graveconcern over the adoption of the BasicLaw for the Protection of Public Security (Ley Orgánica para la Protecciónde la Seguridad Ciudadana) by the plenary of the Congress of Deputies on 11December 2014. This law, currently awaiting final approval in the Senate priorto its final review by the Congress of Deputies, would introduce unnecessaryand disproportionate restrictions on the right to peaceful assembly in Spainand would legalise the practice of summary returns to Morocco from Spain’senclaves in North Africa.

The bill, also called the “gag law,” was adopted despite vigorousrejection by all the opposition parties and civil society organisations, whichdenounced the direct threat that the law poses to the right to peacefulassembly, and despite the opposition of 82% of the Spanish public opinion,according to recent polls. It is part of a series of other restrictivemeasures, such as the reform of the Penal Code and the Free Legal AssistanceAct, aiming at limiting the exercise of the right to peaceful assembly in Spain.

The Basic Law for the Protection of Public Security introduces newoffences and administrative sanctions, some of which are very severe, targetingactions related to social protests. For example, fines of up to €600 can beimposed on individuals for organising public meetings and demonstrationswithout prior notification (Article 37.1), making spontaneous gatheringsimpossible regardless of their peaceful nature. Peaceful assemblies in thevicinity of the Congress, the Senate or the legislative assemblies of theAutonomous Regions will be considered as a “serious offence” punishable by afine of up to €30,000 should they seriously disturb public order (Article 36.2).International human rights law allows for limitations to the right to peacefulassembly to ensure public order but any such restrictions must meet a stricttest of necessity and proportionality. Meetings or demonstrations notpreviously declared in facilities where basic community services are provided,including nuclear power plants, transport infrastructures such as airports,train stations and ports, and telecommunications infrastructures could be finedup to €600,000 (Article 35.1).

Spain’s new public security law also provides for fines of up to €30,000for disseminating photographs of police officers and state security bodies thatare deemed to endanger them or the success of their operations (Article 36.26).This could hinder the documentation and reporting of abuses committed by lawenforcement personnel and reinforce the climate of impunity. Disobeying andresisting authorities, as well as refusing to disband meetings anddemonstrations may also be fined up to €30,000 (Articles 36.6 and 36.7).Showing disrespect for police officers could be fined up to €600 (Article 37.4).

This new law comes in response to the growing wave of protests demandingdirect citizen participation in public affairs and involvement in decisionstaken in response to the economic and financial crisis that has gripped thecountry since 2008. Under the pretext of improving public safety, the law aimsat dissuading citizens from expressing publicly their concerns and muzzlingcriticism by criminalising new forms of collective action and expression thathave developed in recent years, including 'escraches' (“demonstrationsaiming at public denunciations”), sit-ins, “occupying” public spaces, peaceful“surroundings” of parliaments and “concerts of pots and pans.”

Our organisations are also deeply concerned about an amendment to thenew law presented at the last minute by the government thatwould modify Organic Law 4/2000 on the rights and freedoms of foreigners inSpain and their integration (Additional Disposition 10). This amendment wouldlegalise the practice of summary returnsresorted to in Ceuta and Melilla, whereby migrants who manage to cross theSpanish-Moroccan border will be immediately sent back. This new provisionsignificantly restricts the right to seek asylum and violates the principle of non-refoulement and the prohibition ofcollective expulsions. It exposes migrants to serious risk of torture andill-treatment as it would de facto deny them the possibility of filing acomplaint in case of abuses perpetrated by law enforcement personnel.

In view ofthe above, several announced provisions of the Basic Law for the Protection ofPublic Security would not be compatible with Articles 13 and 21 of the Spanish Constitution,European Union law, including the EU Charter of Fundamental Rights, andinternational human rights law. This includes the Conventionrelating to the Status of Refugees of 1951, the International Covenant on Civiland Political Rights, Articles 12.1, 18 and 19 of the Charter of FundamentalRights of the European Union, Article 3 and 11 of the European Convention onHuman Rights and Article 4 of its Protocol No 4.

Several actors of the international community have already expressedconcerns about Spain’s new public security law and the impact it could have onthe rights to peaceful assembly and asylum. In his last report to the 26thregular session of the UN Human Rights Council in June 2014, the UN SpecialRapporteur on the rights to freedom of peaceful assembly and association,Mr Maina Kiai, considered that both the Basic Law for the Protection ofPublic Security and the reform of the Penal Code “point to a violation of thevery essence of the right to demonstrate by criminalizing a wide range ofbehaviours inherent to the exercise of this fundamental right, causing a majorlimitation of the exercise thereof.”[1]The Council of Europe’s Commissioner for Human Rights, Mr Nils Muiznieks, hasalso emphasized the threat that the law poses for the exercise of the right topeaceful assembly and has called for removal of the prior authorisationrequirement, the classification of demonstrations around Congress or theregional assemblies as serious offences and the prohibition of recording imagesof law enforcement personnel in the exercise of their duties from the finalversion. In an article published on Human Rights Day, the Commissioner alsonoted that the proposal to legalise automatic and collective expulsions ofmigrants was “unjust and illegal” under international law.[2]

During Spain’s second Universal Periodic Review that took place in January2015, several States including EU Member States called on the Spanishgovernment to ensure the full enjoyment of the right to peaceful assembly andaccess to effective asylum procedures and refrain from adopting any laws thatwould limit the exercise of these rights. On24 October 2014, the then-Commissioner for Home Affairs Cecilia Malmströmaddressed a letter to Spain’s Interior Minister Jorge Fernández Díaz,expressing concern over this proposed amendment to legalise summary expulsionsas well as the use of excessive force at the enclave borders.[3]

In line with these previous initiatives, we urge you to call on theSpanish government to modify the billin accordance with international and European standards concerning the rightsto assembly and asylum, and take any other initiative to prevent the adoptionof a law that would breach such standards.

Thank you for your consideration.

ACSUR-Las Segovias - Asociación para la Cooperación en el Sur

Asociación Pro Derechos Humanos de Andalucía (APDHA)

Asociación Pro Derechos Humanos de España (APDHE)

Euro-Mediterranean Human Rights Network (EMHRN)

European Association for the Defence of Human Rights (AEDH)

Federacíon de Asociaciones de Defensa y Promocíon de los DerechosHumanos

FIDH (International Federation for Human Rights)

Institut de Drets Humans de Catalunya (IDHC)

SODEPAU - Solidaritat, Desenvolupament i Pau

World Organisation Against Torture (OMCT)

CC:

Heads of Cabinet

DG Home - Spain, migration and fundamental rights

DG Justice – Fundamental Rights Unit

FREMP members

Director of the Fundamental Rights Agency of theEuropean Union

[1] See Report of the SpecialRapporteur on the rights to freedom of peaceful assembly and of association, Observationson Communications to Governments and Replies Received 2013-14, HRC 26th, 10 June2014, A/HRC/26/29/Add.1, para 415.

[2] See Nils Muiznieks “España no puedelegalizar lo que es ilegal,” HuffingtonPost, 10 December 2014, available at: http://www.huffingtonpost.es/nils-muiznieks/espana-no-puede-legalizar_b_6294882.html

[3] See « Brussels accuses Spainof violating EU border laws in Ceuta and Melilla,” El Pais, 31 October 2014,available at: http://elpais.com/m/elpais/2014/10/31/inenglish/1414750844_552185.html