The Spanish Constitution of 1978 explicitly protects fundamental rights and duties, including the rights to life and to freedom from torture or to inhuman or degrading punishment or treatment. The rights to liberty and security, to peaceful assembly (without prior authorisation), and to association are also protected. These rights are to be interpreted in conformity with the Universal Declaration of Human Rights and international treaties and agreements ratified by Spain.
There is no explicit regulation in the Spanish Constitution of the use of force by law enforcement agencies but it is specified that powers relating to local police forces are to be governed "by an organic act".Section 148(22), 1978 Constitution of Spain.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||Yes|
|CAT Optional Protocol 1||State Party|
1998 Rome Statute of the International Criminal Court
1950 European Convention on Human Rights
Police Use of Force
The two largest national police forces are the Policía Nacional and the Guardia Civil. The National Police is an armed body with civil status at the national level: its core mandate is to secure the enjoyment of people’s rights and freedoms and to guarantee the safety of the general public. The Civil Guard is the military law enforcement agency of the Ministries of the Interior and Defence.
The primary legal instrument regulating use of force by law enforcement agencies is the Organic Police Law 2 of 1986. The Preamble notes the duty of law enforcement officials to follow the 1979 Code of Conduct for Law Enforcement Officials. Police officers are also required to respect the honour and dignity of the person. Chapter 2 sets out four fundamental principles for police action, including the duty to use only necessary and proportionate force:
a. On discriminatory violence: They must prevent, in the exercise of their professional performance, any abusive, arbitrary or discriminatory practice involving physical or moral violence.
b. On treatment of citizens and information: There must be correct and careful treatment in relations with citizens. In interventions, they must provide comprehensive information on these issues.
c. On necessity and proportionality in the exercise of functions: in the exercise of their functions, they must act with necessity, and without delay when it depends on avoiding serious, irreversible, and irreparable damage; in accordance with principles of congruence, opportunity and proportionality in the use of means at their disposal.
d. On the use of firearms: only use firearms where a serious risk to life or physical integrity exists or when those circumstances pose a serious risk to public safety.
Further rights to use force are set out in the Organic Law 1 of 1992 on the Protection of Public Safety.
The Defensor de Pueblo (Ombudsman) is competent to deal with complaints against the police. The Defenso del Pueblo does not take orders or receive instructions from any authority, and must perform his or her functions “independently, impartially, autonomously and his or her own good judgment and enjoys inviolability and immunity in the exercise of his or her office”.
Any citizen may request for the intervention of the body, which can then investigate any alleged misconduct by public authorities and/or the agents thereof. They can also intervene ex officio.Art. 12, Organic Law 3/1981.The Defensor del Pueblo is also required to undertake preventive visits to all detention centers to detect problems that might favor the impunity of torture or ill treatment, and these are reflected in an annual report presented to the Spanish Parliament and the UN Subcommittee on Prevention of Torture.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2015 Concluding Observations, the Human Rights Committee expressed its concern at the
complaints of excessive use of force … particularly in the context of public protests.
It was also “disturbed at reports of shortcomings in the investigation of complaints and punishments" and expressed its concern "at the deficiencies in forensic assessment in cases of investigation of human rights violations by State officials”. The Committee was further concerned that “police officers convicted of the crime of torture has granted pardons, which contributes to a feeling of impunity among State officials”. The Committee called on Spain to:
(a) Redouble its efforts to prevent and eliminate torture and ill-treatment by such means as providing more human rights training for law enforcement officials in the light of the relevant international standards;
(b) Establish independent complaint bodies to address claims of ill-treatment by the police;
(c) Ensure that all complaints of torture and ill-treatment are investigated promptly, thoroughly and independently and that the perpetrators of such acts are brought to justice;
(d) Ensure that victims receive appropriate reparation, including health and rehabilitation services;
(e) Ensure that forensic examinations of presumed cases of torture and ill-treatment committed by State officials are impartial, comprehensive and conducted in accordance with the Istanbul Protocol;
(f) Prohibit the granting of pardons under its legal system to persons found guilty of the crime of torture;
(g) Ensure the recording of interrogations of all persons deprived of liberty in police premises and other places of detention.
Portu Juanenea and Sarasola Yarzabal v. Spain (2018)
This case concerned allegations of ill-treatment sustained by Mr Portu Juanenea and Mr Sarasola Yarzabal when they were arrested in 2008 by officers of the Guardia Civil and at the beginning of their police custody. The European Court of Human Rights found that the injuries described in the medical certificates presented by Mr Juanenea and Mr Yarzabal had been caused while they were in the hands of the Guardia Civil. It took the view that neither the national authorities nor the Government had provided any convincing or credible arguments to explain or justify those injuries, which it found to amount to inhuman and degrading treatment.
The Court then observed that the Spanish Supreme Court had confined itself to dismissing the applicants’ version without considering whether the use of physical force by the officers during their arrest had been strictly necessary and proportionate, or whether the most serious injuries subsequently sustained by Mr Juanenea were attributable to the officers responsible for his detention and supervision. Those omissions had prevented the domestic court from establishing the facts and all the circumstances as fully as it should have done. In its judgment, the Court found a violation of the prohibition of inhumane treatment (Article 3) in both substantive and procedural aspects.