The Optional Protocol of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into effect on January 22, 2006, and aims to prevent torture through the establishment of a system of periodic visits by an international body (the Subcommittee for the Prevention of Torture, based in Geneva) to sites of involuntary deprivation of liberty and through national mechanisms for the prevention of torture. Following Spain’s signing of the above mentioned Optional Protocol, the Spanish Parliament decided in late 2009 to assign the status of National Mechanism for the Prevention of Torture (NPM) to the Spanish Defensor del Pueblo, through the Organic Law 1/2009 of November 3rd 2009 which introduces a sole final disposition to Organic Law of the Defensor del Pueblo. Since the beginning of its work as a mechanism to defend and protect Fundamental Rights, this institution has worked to prevent torture. As an independent body, the National Mechanism for the Prevention of Torture for Spain, carries out a system of periodic visits to places of involuntary detention and deprivation of liberty with the objective of preventing torture and other cruel, inhuman or degrading punishments.
Among the many powers of the Defensor del Pueblo to defend and protect Fundamental Rights, its status as National Preventative Mechanism (NPM) has the fundamental mission of ensuring compliance with the provisions of Articles 15 and 17 of the Spanish Constitution. In order to exercise this function, the NPM carries out visits to those centres of involuntary detention and deprivation of liberty which are under the various Spanish Public Administrations. The purpose of these inspections is to verify that Spanish public authorities and personnel act in conformity with the criteria required by Spanish law and internationally accepted for these types of institutions, in other words, making sure that they do not foster conditions that may facilitate abuses or the use of torture in those places. The NPM may carry out inspections in:
- Penitentiary centres
- National Police Stations
- Spanish Civil Guard Barracks
- Autonomous communities’ police stations
- Premises of the local police
- Military Facilities: barracks, naval bases, air force bases, military bases, military training centres, hospitals, etc.
- Municipal detention centres
- Judicial detention centres
- Juvenile detention centres
- Detention centres for foreign nationals
- Border control centres with police facilities in airports, seaports and territorial borders
- Hospitals (custody units)
- Psychiatric hospitals
- Geriatric centres
- Buildings containing confined stowaways
- Any other place that may qualify under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol.
The preventative activities of the National Preventative Mechanism consist, essentially, in:
- Carrying out regular, unannounced, inspections to places of involuntary deprivation of liberty in accordance with the established provisions of Articles 1 and 19 a) of the Optional Protocol
- Creating inspection records and reports in accordance with the provisions established in Article 23 of the Optional Protocol
- Issuing recommendations to authorities in accordance with the provisions established in Article 19 b) of the Optional Protocol. Making proposals and observations concerning existing legislation and draft proposals related to this issue, in accordance with the provisions established in Article 19 c) of the Optional Protocol. The NPM collates its activity annually in a report that is presented before the Spanish Parliament and the United Nations Subcommittee for the Prevention of Torture, based in Geneva.
The NPM is an independent unit within the structure of the Defensor del Pueblo, whose work, with the objective of maintaining its independence, is incompatible with any representative mandate; with any political office or activity; with the duration of active service of any public administration; with any affiliation with a political party or the performance of management functions in a political party, union, association or foundation, and with the employment of the services of the same; with the exercise of judicial and fiscal careers; and with any professional activity, whether labour, liberal, or mercantile. The NPM enjoys the following privileges:
- It is not subject to any imperative mandate, nor does it receive instructions from any authority. The NPM exercises its functions with autonomy and according to its own criteria
- They enjoy immunity in that they cannot be arrested, reprimanded, fined, prosecuted or judged as a result of the opinions which they express or as a result of the actions they take in carrying out the capacities of the office.
- They are appointed by the Spanish Parliament for a period of five years, and may leave office only because of death, disability, or as a result of resignation, or if their appointment expires, they act in gross negligence in fulfilling the obligations and duties of the office, or they have been found guilty by final judgment of a felony.
The National Mechanism for the Prevention of Torture was established as an independent unit within the structure of the Defensor del Pueblo. The National Preventative Mechanism Unit is composed of a head of the unit, five technicians and two full time administrators. Two other coordinators work both as members of the NPM Unit and for the Defensor del Pueblo. The NPM Unit also occasionally receives support from technicians from the Institution that are integrated in other areas related to these matters, particularly in carrying out visits. Moreover, in order to fulfil the functions and expectations that international organizations expect from the NPM, the Defensor del Pueblo works in collaboration with accredited, experienced and trained professionals in fields such as medicine, psychiatry and psychology. They provide assistance and collaboration as external experts, accompanying members of the NPM Unit on some visits and contributing to a comprehensive, multidisciplinary assessment of the centres and places of detention visited. The complete design of the NPM provision of Organic Law 1/2009 of November 3rd also involved the creation of an Advisory Council as a body of technical and legal cooperation in the exercise of the functions of the National Preventative Mechanism. The complete design of the NPM provision of Organic Law 1/2009 of November 3rd also involved the creation of an Advisory Council as a body of technical and legal cooperation in the exercise of the functions of the National Preventative Mechanism. The complete text of the reform of the Rules of Organization of the Defensor del Pueblo, which determines the structure, composition and function of the Advisory Council, can be consulted here. According to this, the Council is composed of the Defensora del Pueblo, two Deputies of the Defensor del Pueblo and a maximum of 10 members: one designated by the General Council of Spanish Attorneys, a second designated by the General Council of Spanish Medical Associations, a third designated by the General Council of Official Colleges of Psychologists of Spain, up to two representatives from institutions with whom the Defensor del Pueblo has signed contracts of collaboration, and five members to be appointed from a pool of candidates nominated by the Defensor, in their personal capacity or on behalf of organizations or associations, to represent civil society. The current composition of the Advisory Council, chaired by the First Deputy and Defensor del Pueblo, Mr. Francisco M. Fernández Marugán, is the following:
- Mrs. Concepció Ferrer i Casals, Second Deputy of the Defensor del Pueblo
- Ms. Milagros Fuentes González, Attorney and Dean of the Bar Association of Santa Cruz de La Palma. Designed by the Consejo General de la Abogacía Española (Council of Spanish Attorneys). End of her term: 2019
- Ms. Inmaculada Martínez Torre, President of the Colegio Oficial de Médicos (Official College of Doctors) of La Rioja. Appointed Consejo General de Colegios Oficiales de Médicos de España (General Council of the Official College of Doctors, Spain). End of her term: 2021
- Ms. Vicenta Esteve Biot, clinical psychologist and Vice President of the Official College of Psychologists in Valencia. Appointed by the Consejo General de Colegios Oficiales de Psicólogos de España (General Council of Official College of Spanish Psychologists). End of her term: 2019
- Ms. Mª José García-Galán San Miguel, magistrate and member of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). End of her term: 2019
- Mr. Jesús López Medel Báscones, state attorney and college lecturer at the Universidad de Cantabria. End of his term: 2019. - Mr Jesús López Medel Báscones, state attorney and college lecturer
- Mr. Lorenzo Martín-Retortillo Baquer, Professor of Administrative Law at the Universidad Complutense de Madrid and specialist in jurisprudence of the European Court of Human Rights. End of his term: 2019
- Ms. Maite Parejo Sousa, attorney and Vice President of APDHE (Pro-Human Rights Association of Spain). End of her term: 2021
- Mr. Julián Carlos Ríos Martín, Criminal Law Professor at the Universidad Pontificia Comillas and attorney in Penitentiary Law. End of his term: 2021.
The NPM always carries out its preventative activities ex officio, since different areas of the Defensor del Pueblo already exist to investigate and address complaints or allegations related to ill-treatment or torture. Thus, any information concerning individual cases or complaints addressed to the NPM are immediately transferred to appropriate areas of the Defensor del Pueblo for study.
- Spanish Constitution Organic Law 3/1981, of 6 April, of the Defensor del Pueblo
- Organic Law 3/1981, of 6 April, of the Defensor del Pueblo
- Rules of Organization and Operation of the Defensor del Pueblo
- Organic Law 1/1979, of 26 September, of the General Penitentiary Criminal Procedure Act. promulgated by Royal Decree of 14 September 1882 (Only available in Spanish)
- Organic Law 6/1984, of May 24, regulating the procedure of Habeas Corpus (Only available in Spanish)
- Organic Law 13/1985. 9 December, of the Military Penal Code (Only available in Spanish)
- Organic Law 2/1986 of 13 March, on Security Forces. (BOE no. 63/14-III-1986). (Only available in Spanish)
- Organic Law 1/1992 of 21 February, on Protection of Public Safety. (BOE no. 46/22-II-1992) (Only available in Spanish)
- Organic Law 10/1995 of 23 November, of the Penal Code (Only available in Spanish)
- Organic Law 4/1997, of 4 August, regulating the use of video cameras by the Security Forces in public places. (BOE no. 186jS-VIII-1997) (Only available in Spanish)
- Organic Law 4/2000 of 11 January, on the rights and freedoms of foreigners in Spain and their social integration (Only available in Spanish)
- Organic Law 5/2000 of 12 January, governing the criminal liability of minors (Only available in Spanish)
- Organic Law 12/2007, of October 22, of the Disciplinary Board of the Civil Guard (Only available in Spanish)
- Organic Law 4/2010 of May 20, of the Disciplinary Board of the National Police (Only available in Spanish)
- Instructions of the Secretary of State of Security of the Ministry of the Interior (Only available in Spanish)