Anti-Discrimination Legislation

The general legislative framework regarding the protection of minorities and the principle of equality is derived from the Spanish Constitution of 1978. However, it should be noted that the Spanish Constitution itself recognizes not only Spain's participation in international and regional organizations, but also the primacy of international obligations over domestic law, although this primacy does not extend to constitutional provisions. At the international level, Spain has assumed many obligations and has recognized the authority of international supervisory bodies. It is a party to the most important multilateral treaties and conventions concerning human rights.

Spain is a member state of the EU and the Council of Europe (CoE), because the legislation and case law developed in these frameworks are particularly relevant to minorities. It should be noted that EU law enjoys the principles of primacy and direct effect in the Spanish legal order. Therefore, in all matters falling under EU competence, EU legal provisions relating to non-discrimination apply and prevail over national law.

In the domestic sphere, the EU legal provisions relating to non-discrimination apply and prevail over national law.

In the domestic level, as mentioned earlier, Spain is a highly decentralized regional state, consisting of 17 autonomous communities (Andalusia, Aragon, Asturias, Balearic Islands, Basque Country, Canary Islands, Cantabria, Castile and León, Castilla-La Mancha, Catalonia, the Community of Madrid, Extremadura, Galicia, La Rioja Navarra, Murcia and Valencia) and two autonomous cities (Ceuta and Melilla). Consequently, although an exhaustive analysis of the legal framework at the regional level is beyond the scope of this report, it should be borne in mind that regional legislative and institutional developments must be taken into account in order to properly reflect the situation in Spain.

Thus, the Spanish legal and political framework affecting minority interests derives from international, European, national and subnational norms.

(a) Legal and Political Framework - General Provisions.

• International Convention on the Elimination of All Forms of Racial Discrimination;
. .
• International Covenant on Civil and Political Rights
.
• The Convention on the Elimination of All Forms of Discrimination against Women;
• Convention on the Rights of Persons with Disabilities;
• Convention on the Rights of Persons with Disabilities;
• Convention 1958 of the International Labour Organisation on discrimination in employment and occupation (No. 111)
• Convention of 1948 on the Prevention and Punishment of the Crime of Genocide
• UNESCO Convention against Discrimination in Education;
• The Rome Statute of the International Criminal Court.
• The Rome Statute of the International Criminal Court

In addition, at the political level, Spain adopted a declaration and programme of action in Durban at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. However, it is not a party to the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid or the 1985 International Convention against Apartheid in Sports.

Regionally, Spain is a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "ECHR") and is therefore subject to the jurisdiction of the European Court of Human Rights and its Protocol no. 12. The latter significantly expanded the scope of Article 14 of the ECHR (non-discrimination). Both the ECtHR and its Protocol are directly applicable in Spain. In addition, Spain has also ratified the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities.

At the supranational level, Spain follows the general EU regulation in the field of non-discrimination - the EU founding treaties and the EU Charter of Fundamental Rights - and the secondary law - the legislation prepared by the EU institutions, above all:

• Directive No. 2000/43 / EU of 29 June 2000 on the application of the principle of equal treatment between persons regardless of racial or ethnic origin, which prohibit discrimination based on racial or ethnic origin in a wide range of areas, including employment, social protection and social advantages, education and goods and services available to the public, including housing;
• EU Directive No. 2000/78 of 27 November 2000 establishing a general framework for equal treatment in the field of employment, which also refers to religion or belief, disability, age and sexual orientation in employment;
• EU Council Framework Decision No 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law

Nationally, the 1978 Constitution clearly recognizes the principle of equality as a higher value of the rule of law. Under Article 9.2, "public authorities shall promote conditions which ensure that freedom and equality of individuals and groups to which they belong may be real and effective, remove obstacles that prevent their full enjoyment, and promote the participation of all citizens in political, economic, cultural and social life. Furthermore, according to article 14 of the Constitution, "Spanish citizens are equal before the law and may in no way be subjected to discrimination on the grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance. For this reason, the Constitution recognizes both formal and substantive equality. In addition, not only does the Basic Law enumerate the various grounds of discrimination, but it also leaves room for further evolution and interpretation ("or any other personal or social status or circumstance").

In this background, in recent years the Spanish legislature has passed several pieces of legislation that deal with anti-discrimination. However, as mentioned earlier, there is no comprehensive legislation on discrimination, racism, xenophobia and related intolerance. Although a comprehensive draft law on equal treatment and non-discrimination was proposed in the past, it was rejected by the Congress of Deputies in September 2012 and has not been considered since. In the past, a comprehensive draft law on equal treatment and non-discrimination was proposed.

So the existing legal framework on this issue is fragmented. It includes, in the area of civil and administrative law, Articles 27-43 of Law 62/2003 of December 30, 2003 on fiscal, administrative and social order measures, which transposed the EU Equality Directives 2000/43 and 2000/78 into the Spanish legal order. In addition, some legislative provisions are included in other laws regulating specific areas of social action, such as Law 19/2007 against violence, racism, xenophobia and intolerance in sports.

According to Article 28 (1) of Law 62/2003, the concept of equality, direct and indirect discrimination and harassment are defined and prohibited in accordance with international standards. Nevertheless, as ECRI indicates, "although discrimination on all personal or social grounds and conditions is prohibited under Article 14 of the Constitution and the case law of the Constitutional Court, the grounds of race, color, language, citizenship, national origin and gender identity are, however, absent from this and other legal provisions.

It is also worth noting that Sections 30, 35 and 42 of the same Act provide for "a general possibility of affirmative action on the basis of racial and ethnic origin." For example, this possibility is recognized in the field of education, since Article 80 of Organic Law 2/2006 requires authorities to develop compensatory measures directed to disadvantaged people, groups and territorial areas, and to provide the necessary economic resources to do so.

In addition, Article 29 provides a framework of measures to ensure equality and non-discrimination on the basis of race or ethnicity. This extends to areas such as education, health care, social security, housing, and generally offering access to any property or services. However, it does not cover all areas of the public and private sectors and clearly does not address areas such as policing and racial profiling by law enforcement.

In addition, in the area of labor law, the Workers' Statute includes a nondiscrimination provision in Article 17. Under this provision, discriminatory provisions - direct or indirect - in individual or collective contracts, agreements or provisions must be declared null and void. Nevertheless, the legislation does not fully comply with Article 14 of ECRI General Policy Recommendation No. 7 because "a similar provision does not appear to exist outside of this area."

In April 2015, Spain approved Law 4/2015 on the status of the victim, which is similar to Directive No. 2012/29 / EU of October 25, 2012, establishing minimum standards for the rights, support and protection of victims of crime. This law aims to protect the rights of victims before, during and after criminal proceedings, as well as to address the special needs of victims of racially motivated crimes (Article 23.7). It also includes raising public awareness of the rights and support services available to victims. In addition, it includes raising public awareness of the rights and support services available to victims.

The Spanish Criminal Code, enacted in 1995, including and most recently amended in 2015, contains several provisions that criminalize racism and racial discrimination. For example, Article 314 adds aggravating circumstances to the criminal offense if the victim is discriminated against at work on the basis of ideology, religion, belief, ethnicity, race or nationality. Similarly, Articles 511 and 512 regulate the denial of certain benefits to which a victim is entitled on the basis of her ideology, religion or belief, ethnicity or race, nationality, gender, sexual orientation, marital status, gender, illness or disability. However, these provisions do not regulate types of unjustifiable differentiation, such as racial profiling by police, etc.

There are two bills currently under consideration:

- A bill to amend the aforementioned Act 19/2007 on violence, racism, xenophobia and intolerance in sports, to eradicate homophobia, biphobia and transphobia and

- A draft law against discrimination on the grounds of sexual orientation, identity or gender expression and sexual characteristics as well as the social equality of lesbian, gay, bisexual, transsexual, transgender and intersex people.

Although the Spanish legislature has yet to address the issue, many civil society organizations have repeatedly called for comprehensive equality and non-discrimination legislation.

b) Legal and Policy Framework - Migrants and Refugees

Since the 1990s, Spain has become a country where more than 15% of the population, born abroad. Nevertheless, the international financial crisis, accompanied by an austerity crisis, has affected migration flows in Spain, thus shrinking and shifting from "non-EU labor to family reunification of children and spouses of former labor and regular migrants who have long been settled in Spain. In recent years there have been various trends in the legal sphere affecting migrants: many integration policies of migration remain untouched, such as the right to family reunification. Not to mention the fact that the recent so-called refugee crisis has also provoked a strict response from state authorities.

However, Spain strictly complies with the provisions of the international agreements concerning migrants to which it has acceded. These are, first and foremost:

• The 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others;
• The 1951 Convention Relating to the Status of Refugees and its corresponding Protocol;
• Convention relating to the Status of Stateless Persons of 1954;
• The 2000 United Nations Convention against Transnational Organized Crime;
• The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children;
• Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the Convention;
• The Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the 2000 Convention.

Spain has not, however, ratified the 1990 International Convention on the Protection of the Rights of All Migrant Workers, the 1961 Convention on the Reduction of Statelessness or the 1975 International Labour Organization Migrant Workers (Supplementary Provisions) Convention (No. 143). At the national level, the rights of non-citizens are governed by Organization Act 4/2000 of 11 January 2000, on the rights and freedoms of aliens in Spain and their social integration (commonly known as the Aliens in Spain Act), as amended by the General Act 2/2009 of 11 December 2009. The government has also adopted policies to promote the integration of migrants, including the Strategic Plan for Citizenship and Integration 2011-2014.

In accordance with its preamble, the Organic Law 4/2000 was amended in 2009 to incorporate the jurisprudence of the Constitutional Court, as well as to implement the EU directives on immigration and to respond to the "new migration situation in Spain. According to this law, the goals of the reform were, among other things, to guarantee the full exercise of migrants' fundamental rights, combat organized crime and illegal immigration, and strengthen integration "as one of the cornerstones of immigration policy. Specifically, Articles 2bis and 2ter stipulate the obligation of all authorities to include the integration of migrants as a cross-border objective in all their policies, and to promote the economic, social, cultural and political participation of migrants in accordance with the Constitution, the Statute of Autonomy and other laws. In this regard, they must ensure the teaching of knowledge and respect for the values enshrined in the Constitution and the Statute of Autonomy, guarantee compulsory schooling for migrant children, the learning of official languages and access to the labor market as essential factors for integration.

It is also important to note that the Organic Law includes a commitment to cooperation between the central government and the autonomous communities and municipalities, as part of a multi-year strategic plan to achieve these goals. In addition, the government and the Autonomous Communities should agree on two-year action programs to strengthen integration, to be financed from the state budget on an annual basis.

With regard to naturalization through residence, the procedure has been reformed with Law 19/2015, "which establishes the relationship between integration and naturalization and further indicates the requirement to prove a sufficient degree of integration in Spanish society. This procedure is based on a language test (A2, according to the Common European Framework of Reference for Languages), followed by a test of knowledge of the Constitution and of Spanish social and cultural reality. It should be noted that citizens of countries that have a special relationship with Spain benefit from a specific and accelerated procedure, since they can apply for citizenship and receive an answer within two years; in total, the process can take about 5 years.,/p>

There are, however, contradictions between legislation and practice. Indeed, the legislation only partially achieves its goals, especially in the area of education. For example, according to the ECRI, "half of Spanish immigrants have no or only low-level qualifications, and 40% have only the most basic literacy skills, 44.2% of third-country nationals leave school early (the EU28 average is 25.7%), and only 17.7% complete their higher education (the EU28 average is 30.2%). According to information provided by authorities to ECRI, central authorities, together with regional authorities, plan to develop an action plan for the education of migrant children.

In addition, the Strategic Plan for Citizenship and Integration 2011-2014 has not yet been updated to take into account the current and future years. While it is true that the National Action Plan for Social Inclusion of the Kingdom of Spain 2013-2016 (NAPSI) covers all vulnerable groups, including migrants, it ended in 2016. In addition, civil society organizations are concerned that there is no longer national funding for important integration measures, such as language courses. In addition, ECRI points to the lack of integration indicators to effectively assess the situation of migrants and the results of integration policies. The other area of concern is the lack of integration indicators.

Another area of criticism is the obstacles that the Aliens Act imposes on undocumented migrants who wish to regularize their administrative situation. Under Article 31.5), undocumented migrants must have no criminal record in order to obtain residency and work permits. This, together with the criminalization in 2015 of the sale of counterfeit goods by street vendors, a means of survival for many irregular migrants, has serious consequences for many migrants who find no legal opportunities for regularization. Therefore, it seems that Spain is increasingly using the Penal Code to punish irregular migrants. Finally, data show that while the overall integration of non-citizens in the labor market is improving in line with the economic situation, some groups of migrants, especially those with native languages other than Spanish and women, face additional obstacles.

In 2018-20, Spain experienced several changes in immigration law. First, in 2018, the Ministry of Integration, Welfare and Migration was created, as well as the Secretariat of State for Migration. This shows that the Spanish government is paying a lot of attention to migration issues. Second, in November 2018, the Spanish government ratified the 1961 International Convention on the Reduction of Statelessness. In addition, in 2018, the Spanish government announced the return of the Immigrant Integration, Reception and Education Support Fund, which was abolished in 2012. In fact, in 2019, a budget of 70 million euros was allocated to the Fund in accordance with Royal Decree-Law 8/2019 on urgent measures for social protection and the fight against precarious work during the working day.

Finally, in 2020, several measures were taken during the quarantine measures in relation to the COVID-19 pandemic in Spain. First, the approval of Royal Decree-Law 13/2020, which adopted urgent measures in the field of agricultural employment, in order to relax the requirements for temporary employment in the agricultural sector. Migrants with work and residence permits that expired between March and June 2020, as well as foreign youth between the ages of 18 and 21, can benefit from the approved flexibility measures. In addition, automatic six-month extensions were also approved for temporary residence and work permits that expired during the lock-in or 90 days before it began.

c) Legal and Policy Framework - Roma

Spanish Gypsies (or Gitanos, Spanish-speaking Roma) have lived in the country since the 15th century. Currently, it is estimated that between 725,000 and 750,000 Roma (about 1.5% of the Spanish population) live in Spain, about 40% of them concentrated in Andalusia. In addition, the Roma population has increased since 2002 with the arrival of Roma from Romania and Bulgaria, although it is difficult to estimate an exact figure due to the lack of data collection on ethnicity in Spain. As the Ministry of Health and Welfare stresses, Roma constitute one of the most disadvantaged social groups, suffering greatly from social exclusion and discrimination.

Against this background, Spain has developed a political and institutional reform aimed at combating discrimination against Roma and improving their living conditions, a reform that led to the creation of the Roma Development Group under the Ministry of Health, Social Security and Equality in 1989, and the Council of State for Roma, created in 2005.

Spanish social inclusion policies concerning Roma are implemented through partnerships between public authorities, regional authorities and civil society. At the central level, the current policy framework lies mainly in the National Strategy for Roma Social Inclusion 2012-2020, adopted by the Spanish government in March 2012 and derived from the European Commission Commission. The European Framework of National Strategies for Roma Inclusion 2020 Strategy is complemented by an operational plan; however, in 2017 there was no operational plan in force. On the other hand, there was an operational plan for 2014-2016 and then for the period 2018-2020.

The national strategy sets specific goals, indicators, and targets for education, employment, housing, and health. Its implementation combines general and targeted measures in all of these areas, which are monitored through reporting and review procedures. The latter to date is a midterm review of the Strategy, covering the period 2012-2016. Moreover, some regional governments have adopted their own action plans and/or consolidated recognition of the Roma community. For example, the Statute of Autonomy of Andalusia establishes the promotion of the necessary conditions for the full integration of minorities, especially for the full social integration of the Roma community, as one of Andalusia's goals. Similarly, the ten Autonomous Communities have a strategy/plan or are in preparation. In addition, as data collection has improved in recent years, it has become easier to evaluate targeted measures to promote the social integration of Roma at the regional level.

In general terms, according to official data, some positive results were achieved during 2014-2016: Roma adult education has improved; the proportion of Roma students attending high school has increased; they have better access and housing services; the health of Roma women and girls has improved; and the number of Roma turning to the labor market has increased. For 2014-2016, 84% of the planned interventions were fully or partially implemented. In 2014-2016, Roma women and children were able to attend high school.

There is, however, room for improvement, especially in employment, as access to the labor market remains well below the average for the population. This statement is also true in some other areas, such as high school. In addition, for some of the indicators outlined in the Strategy, there is a lack of updated data. Finally, according to various stakeholders, the economic crisis has had a negative impact on Roma social inclusion policies in terms of implementation and financial resources. Consequently, the "Alternative Report on Compliance with the International Covenant on Economic, Social and Cultural Rights in Spain", published by the Spanish NGO platform in 2018, highlighted the urgent need to guarantee the right to education for Roma students, the right to decent housing and the right to non-discrimination. Regarding the latter, this report specifically calls for the expansion of the regulatory framework through an integral law on equal treatment and nondiscrimination of Roma students.

d) Hate crime legislation (criminal cases and convictions related to hate crimes).

In 2014-2015, there were important changes in legislation related to hate speech and hate crimes. At the international level, Spain ratified the Additional Protocol to the Convention on Cybercrime in 2014 regarding the criminalization of acts of a racist and xenophobic nature committed through computer systems, which entered into force in 2015.

In 2014, Spain ratified the Optional Protocol to the Convention on Cybercrime regarding the criminalization of acts of a racist and xenophobic nature committed through computer systems.

The Spanish Criminal Code (Article 22 (4)) provides for aggravating circumstances applicable to those cases in which the offense is committed because of racism, anti-Semitism or any other type of discrimination based on the victim's ideology, religion or beliefs or ethnicity, race or nationality of the victim, their gender, sex, sexual orientation or personality, illness or disability. This article applies to all offenses contained in the Criminal Code, but is particularly relevant in conjunction with the provisions governing threats, defamation and insults (Articles 169, 205-207 and 208-210 of the Criminal Code).

It should be noted that the victim does not need to suffer directly from discrimination to do so; for example, if a journalist is harmed on the grounds that he was defending a minority, this could be considered an aggravating circumstance. Similarly, the law places the burden of responsibility in this matter on the perpetrator. Consequently, the victim does not have to actually belong to the discriminated group; rather, the fact that the offender believes the victim belongs to the group is sufficient for the circumstances of the case to be considered aggravating. In this case, the victim does not have to actually belong to the discriminated group.

One of the most important cases in this context is the May 4, 2015, Stroica case, in which the Supreme Court convicted ten people of a series of serious crimes, including two attempted murders, as a result of a coordinated plan carried out by a group of people of neo-Nazi ideology and directed at people considered to belong to another ideology. Article 22(4) applies insofar as the perpetrators took action to justify their ideology and the victims were chosen solely on the basis of their symbols and aesthetics. In addition, Article 170 (1) provides for increased penalties in the context of threats aimed at collective groups whose purpose is to frighten members of a population group, an ethnic, cultural or religious group or a social or professional group or any other group of people. According to the Supreme Court, three elements must be defined for the offense: it requires a specific mens rea that intentionally frightens all or part of the group; the threat must fit the harm that constitutes the criminal offense; and the threats must be serious enough to frighten the group.

Second, in addition to these aggravating circumstances, the Criminal Code was amended in 2015 to better address the growing problems of hate crimes and incitement to hatred. Articles 510 through 512 are particularly important in this regard. Hate speech is punishable under Article 510. Article 510.1.a explicitly criminalizes public incitement to violence, hatred or discrimination. Similarly, the production, possession and distribution of racist materials is a criminal offense under Article 510.1.b. Article 510.2 regulates violations of human dignity through acts of humiliation, contempt or debasement on the basis of their ethnicity, race, nationality, national origin or sexual orientation. Moreover, the penalties are increased if the actions are committed online or could disrupt public peace or create a serious sense of insecurity or fear among members of a vulnerable group (Articles 510.3 and 510.4). Finally, it is possible to destroy racist material and block racist content on the Internet (Article 510.6). It should also be noted that legal entities can be held criminally liable for such offenses under certain circumstances (Article 510 bis).

In addition, organizations that encourage or incite directly or indirectly to hatred are regulated by Articles 515 and 517. However, it should be noted that these articles do not punish support for racist organizations. Two 2011 Supreme Court decisions can be cited in this regard: the Hammerskin case and the Blood and Honor case, in which the Court convicted several individuals because they were unlawfully connected to incitement to hatred, violence or discrimination. In addition, special mention should be made of the regulation of public denial and justification of genocide. Indeed, prior to the 2015 Penal Code reform, Article 607(2) enshrined the prohibition of denial of justification of genocide.

In the meantime, it is not possible to regulate the denial of genocide.

Nevertheless, the Constitutional Court ruled in the Librería Europa case of November 7, 2007, that the prohibition under criminal law of mere denial of genocide, that is, without incitement to genocide, is contrary to freedom of expression. In accordance with this case law, a new Article 510.1.c was adopted, which criminalizes public denial, trivialization and glorification of crimes of genocide, crimes against humanity or persons protected in armed conflicts, provided that these actions encourage or promote a climate of violence, hostility, hatred or discrimination. While this new language reconciles Constitutional Court jurisprudence, it may prove problematic in practice because the standard required (promoting or encouraging a climate of violence, hostility, hatred, or discrimination) is difficult to demonstrate.

In Spain, there is no statutory standard of proof.

There is currently no comprehensive anti-discrimination law in Spain. Although there were attempts in 2011 and 2018 to approve such a law, the legal framework is still fragmented. As such, it does not provide acceptable protection against discrimination, as it has been repeatedly condemned by various international bodies . Such comprehensive legislation would ensure that all forms of discrimination would be included (not just the most serious ones in the Criminal Code) and therefore could also be legally protected. At present, actions such as refusing to rent to someone because of their ethnicity, for example, are not provided for, cannot be prosecuted, and have no sanctions.

As pointed out, the Comprehensive Equal Treatment and Non-Discrimination Bill was proposed in Parliament in 2018, but was automatically withdrawn when Parliament was dissolved in advance of the 2019 general election. Therefore, the proposal must be reintroduced. In 2020, the current government has expressed its intention to approve it in the near future . To date, anti-discrimination provisions were mainly contained in the Spanish Constitution of 1978 and in Act 62/2003 on fiscal, administrative and social measures. Article 14 of the Constitution provides that all Spaniards are equal and prohibits discrimination based on any "personal or social conditions or circumstances". Law 62/2003, which transposed EU Equality Directives 2000/43 and 2000/78 , prohibits direct and indirect discrimination on grounds of "racial or ethnic origin, religion or belief, disability, age or sexual orientation" and establishes the possibility of taking affirmative action on grounds of racial or ethnic origin. While it does not establish a general system of compensation and penalties for all instances of discrimination, it does so specifically for the employment field. It should be noted that the transposition of the EU directives was "minimal.

The Act 62/2003 also provides for the creation of a Council for the Elimination of Racial or Ethnic Discrimination (CERED) to assist victims of discrimination, promote equality measures and conduct research. However, this body has never fully functioned. Although it has been strengthened in some way since 2018 with the appointment of a new chairman (through the allocation of a budget and the approval of a work plan for 2019), several international organizations have urged Spain to create a fully independent and functional equality body. This has been stipulated in the draft comprehensive bill on equal treatment and non-discrimination.

In addition, Law 19/2007 against violence, racism, xenophobia and intolerance in sports contains specific measures applicable to the field of sports activities. In 2017, a bill amending Law 19/2007 to eliminate homophobia, biphobia and transphobia in sports was introduced in the Spanish Parliament. In June 2020, one house of parliament (the Senate) approved the bill, and in 2021 it was finally approved.

Antidiscrimination provisions are also found in several laws: the Workers' Statute, which generally prohibits discrimination against any employee (Article 4.2) and provides that discriminatory provisions in contracts, agreements or regulations are invalid (Article 17); the Aliens Act 4/2000, which refers to acts of discrimination (Article 23); the Political Parties Act 6/2002, which states that any political party that promotes, justifies or justifies exclusion or persecution.