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SUMMARY AND RECOMMENDATIONS

Migrants arriving illegally to Spain's Canary Islands face appalling treatment-both prior to and during detention in the old airport facilities of Fuerteventura and Lanzarote. Detainees, including asylum seekers, held at these facilities suffer not only from severe overcrowding, but also complete deprivation of communication with the outside world-no phones, no visits, no ability to send or receive mail. They do not have proper access to information, lawyers, translators, or physicians, and are deprived of fresh air, sunlight, and exercise for a period of up to forty days. Family members, friends, nongovernmental organizations (NGOs), and humanitarian organizations other than the Spanish Red Cross are routinely denied the opportunity to visit the facilities or even to meet with specifically identified detainees. The only lawyers permitted access to the facilities are the lawyers from the local Bar Association1 who were on duty the day the migrant in question arrived. The police can phone this lawyer on behalf of the detainee if he or she makes the request. In practice, lawyers rarely visit the facility. Decision-making regarding the detention and expulsion of migrants arriving in the Canary Islands is often arbitrary and contrary to Spanish law. Judicial oversight of detention required by Spanish and international law is cursory and amounts to little more than a rubber stamp. Moreover, the ability for migrants to exercise their right to seek asylum is in jeopardy.

Human Rights Watch conducted a six-week research mission to Spain in October and November 2001 to investigate the human rights situation of migrants. Research focused on the arrival, detention, and expulsion of migrants and included visits and in-depth interviews with members of nongovernmental organizations, governmental representatives, and migrants in Madrid, Málaga, Murcia, Algeciras, Tarifa, Barbate, the two Spanish cities in North Africa, Ceuta and Melilla, and the Canary Islands.

Our research in the Canary Islands at the end of October and the beginning of November revealed an urgent need to highlight the circumstances surrounding the detention of migrants arriving on the islands of Fuerteventura and Lanzarote as well as the general conditions in which they are being detained. Human Rights Watch spoke with NGOs, lawyers, doctors, humanitarian aid workers, police, and government administrators familiar with both the process leading up to detention and the actual state of detention conditions in Fuerteventura and Lanzarote. We also conducted in-depth, individual interviews with more than thirty migrants who had been detained in these facilities upon arrival in Spain. Both local authorities and the national government representatives based in the Canary Islands denied our researchers access to visit the Fuerteventura detention facility, noting that nongovernmental organizations are not permitted access and that they could not make an exception for Human Rights Watch.

Conditions have not improved since our investigation-in fact, new information indicates they have worsened-and there are currently no immediate plans to implement temporary measures to address the rights abuses in these facilities or to initiate the immediate transfer of these detainees to appropriate facilities,2 although the Spanish government has been aware of the gravity of the situation for some time.3 Human Rights Watch urges that the following measures be undertaken as a matter of urgency to address ongoing human rights violations against migrants in the Canary Islands:

To the Government of Spain

      · Promptly provide arriving migrants and asylum seekers with information pamphlets on their rights under Spanish law and their right to apply for asylum in several languages they can understand, particularly Arabic, English, and French. Provide interpreters on an as-needed basis to convey rights information to those migrants who cannot read;

      · Permit representatives of migrants' groups, humanitarian agencies, legal services agencies, intergovernmental bodies (for example, UNHCR) and nongovernmental organizations to visit migrants in detention facilities to provide basic humanitarian and legal support and to monitor conditions of detention;

      · Immediately pursue ways to alleviate severe overcrowding, particularly at the Fuerteventura airport installation, including the use of alternatives to detention (such as reporting obligations or guarantor requirements) and transfers to other facilities. The government cannot consider the construction of a new detention facility as an immediate measure;

      · Remedy the absence of outside communication detainees are offered by providing access to telephones and opening the facility to personal visits;

      · Throughout the detention facilities post information bulletins in a number of languages, detailing migrants' rights and phone numbers for migrants' and humanitarian organizations that may be able to help migrants find lawyers or necessary social services in Spain;

      · Undocumented migrants must have a prompt and effective opportunity to challenge the lawfulness of both their detention and deportation order in a judicial proceeding or before another competent authority. Continued detention should be subject to periodic review;

      · Detainees should have access to legal counsel, including information about how to contact their government-appointed lawyer, a private lawyer, or non-governmental organizations providing free legal assistance, and the means to contact such advocates. Lawyers should have unhindered access to their clients in detention facilities;

      · A complaints procedure regarding conditions of detention should be developed and implemented. All detainees should be informed of the existence of a complaints procedure in a language they understand. Detainees should have access to a judicial remedy for abuses suffered in detention that amount to torture or other cruel, inhuman or degrading treatment or punishment;

      · Provide detainees with adequate facilities for exercise and access to fresh air on a daily basis;

      · Alleviate the poor hygiene conditions, particularly in Fuerteventura where the extreme overcrowding exacerbates the poor baseline conditions, by providing a regular cleaning service for the facility as well as a laundering service for sheets and ensuring that there are adequate toilet and bathing facilities for detainees;

      · Provide and set guidelines to ensure that routine and emergency medical care is available to all detainees; medical care should include medical examinations (with appropriate equipment and under conditions of privacy) and the administration of vaccinations where necessary;

      · Implement a reliable system for administering medications to detainees, including the designation of responsible authorities for this purpose;

      · Asylum seekers, in general, should not be detained. Exceptions to this general principle should be applied on a case-by-case basis only and as a matter of last resort. Asylum seekers must have a prompt and effective opportunity to challenge a detention order before a judicial or administrative body independent of the detaining authorities. Periodic reviews of continuing detention should be conducted and asylum seekers and their representatives should have the right to be present at such reviews;

      · Alternatives to detention (such as reporting obligations or guarantor requirements) should be employed for all families with children;

      · Implement the European Committee for the Prevention of Torture's (CPT) recommendations regarding the detention of migrants and asylum seekers, including in the Canary Island airport facilities;

      · Provide training to Spanish authorities and lawyers working with arriving migrants and asylum seekers in the Canary Islands on the Spanish foreigners' and asylum law;

      · Provide training to judicial authorities in the Canary Islands on the law on foreigners and the need to provide oversight of administrative detention on an individual basis;

      · Ensure that all migrants or asylum seekers wishing to apply for asylum have the practical means to do so and are not barred from making such application by local authorities;

      · Initiate quality-control measures for the provision of interpretation and translation services to arriving migrants and asylum seekers to ensure that the right to interpretation is meaningful and in conformity with international and regional standards;

      · Clarify among the responsible government agencies, including the Ministries of Justice, Interior, and Foreign Affairs, the varying types of procedures by which migrants may be deported from Spain, with a view to ensuring that treatment of migrants and asylum seekers is both just and predictable, particularly with regard to the issues of deportation by the processes of retorno and devolución (two forms of repatriation identified in Spanish law);

To the United Nations
      · The United Nations High Commissioner for Refugees (UNHCR) should undertake the following:
          (1) Regular visits to the Canary Islands by UNHCR protection officers to monitor detention conditions;
          (2) Work with the Spanish authorities to produce information brochures informing migrants and asylum seekers of their legal right to seek asylum and procedures for doing so;
          (3) Work with the Spanish authorities to develop and conduct training programs for police, immigration officers, and lawyers on national and international refugee law;
          (4) Ensure that its Spain office has the necessary resources to make sure that asylum seekers arriving in the Canary Islands receive information on and are able to exercise their right to seek asylum by providing regular monitoring of the situation and supplying necessary training and information resources to local authorities, lawyers and judges;
          (5) Recommend and request donors to provide UNHCR in Spain with the necessary resources to do its work;
      · The U.N. Working Group on Arbitrary Detention should plan a site visit to Spain in 2002 in furtherance of its 1997 mandate expansion to include the administrative detention of migrants and asylum seekers;

      · The U.N. Committee against Torture (CAT) should evaluate Spain's upcoming report (November 2002) in light of concerns voiced by international and national nongovernmental organizations, as well as intergovernmental organizations at the regional level, about the conditions of detention for foreigners in the Canary Islands. The CAT should urge the Spanish government in its concluding observations to take short, medium, and long term measures to bring Spain into conformity with international standards regarding the treatment of foreign detainees;

      · The U.N. Special Rapporteur on the Human Rights of Migrants should visit Spain, including the Canary Islands;

      · The U.N. Committee on the Rights of the Child (CRC) should query Spain (reporting May-June 2002) on its policies and practices of detention of migrant children;

To the Council of Europe
      · The European Committee for the Prevention of Torture (CPT) should visit official and unofficial detention facilities in Spain, notably the airport installations in Fuerteventura and Lanzarote, to monitor the detention conditions of migrants and asylum seekers and ensure the Spanish government's compliance with the CPT's recommendation after a visit to Spain in late 1997;

      · The European Commission against Racism and Intolerance (ECRI) should investigate the treatment of migrants and asylum seekers as part of its upcoming visit to Spain, and in particular report on any progress on conditions in the Canary Islands documented in this report;

To the European Union
      · The European Union should ensure that the common policy on immigration and asylum it has been developing since the European Council in Tampere in October 1999 is in full conformity with international human rights standards. Any measures to prevent illegal entry and residence and the removal of illegal residents from the territory of the European Union pursuant to Article 63(3) of the EC Treaty must be designed with the view to meeting the obligation of the community and individual member states to protect human rights as part of the general principles of community law;

      · In this regard, in the Commission's November 15, 2001 "Communication from the Commission to the Council and the European Parliament on a Common Policy on Illegal Migration," the Commission undertook to draw up guidelines for the Council's consideration "in view of initiating an open coordination policy in the area of immigration." Such guidelines should establish minimum E.U. standards governing the status and rights of undocumented migrants-including in areas such as detention procedures and conditions-consistent with international human rights law. The European Parliament and nongovernmental organizations should be duly consulted at all stages of this process;

To the Organization for Security and Cooperation in Europe (OSCE)
      · The OSCE Office for Democratic Institutions and Human Rights (ODIHR), together with its advisory panel of experts on the prevention of torture, should develop guidelines on the conditions and length of administrative detention of migrants and asylum seekers in OSCE participating states;

      · The OSCE should include conditions of administrative detention of migrants and asylum seekers among the topics for its 2002 human dimension seminar or supplementary human dimension implementation meetings.

1 The Spanish term Colegio de Abogados translates as "bar association." Thus, although the colegios differ from bar associations in some countries in a number of ways, the term "bar association" is used throughout this report when referencing Colegio de Abogados lawyers. Colegios de Abogados in Spain are not associations, but cooperative entities with an important role in the administration of justice in Spain. Among other things, they work directly with the Ministry of Justice in order to provide court-appointed lawyers on duty in courts and to supply legal aid lawyers for nationals and non-nationals when required. Only people who have a certified diploma of law may be a member of a colegio and only lawyers formally registered in a colegio (and paying taxes and meeting other colegio obligations) may work as lawyers in Spain. There are approximately fifty-one per province-colegios in Spain. Within the colegios there are a number of special departments, including a department on immigration. Colegio lawyers who have signed up for a particular division are called when there is a need for their services. They perform the services on a pro bono (free) basis to the client, but are paid for their work by the Colegio.

2 There is an ongoing debate between national, regional, and local Spanish authorities over what to do with the increasingly difficult migrant problem in the Canaries. In late 2001 the possible transfer of migrants in the airport facilities, in particular the Fuerteventura facility, to an abandoned military barracks in Fuerteventura became the topic of a heated debate. Tomás Bárbulo, "Government to Shelter Immigrants to Fuerteventura in Disused Military Base," El País, December 18, 2001; Tomás Bárbulo, "Interior Halts Plan to Locate Undocumented Immigrants in a Fuerteventura Base," El País, December 20, 2001. At the time of writing there was no consensus on whether the facility would be converted into a temporary detention facility. Human Rights Watch telephone interview, Ministry of Labor and Social Affairs of the government of the region of the Canary Islands, January 8, 2002. It appears, though, that in the meantime more recent meetings (January and February 2002) between central and regional government officials have led to an agreement for the construction of six new centers for migrants, each with a capacity of 250 people, by the summer of 2002. Yet, these discussions-even as late as the second week of February-have not yielded concrete decisions about when, where and how the construction will begin. Nor has there been serious discussion about remedying the current situations in Fuerteventura and Lanzarote. See e.g., "Interior will Facilitate the Exit of Illegal Immigrants from the Canaries without Taking on their Transfer," La Provincia, January 25, 2002; "Rajoy Stays Silent on Methods to Slow Down the Influx of Immigrants," La Provincia, February 6, 2002. It should also be pointed out that the plan for construction, while generally endorsed by all official parties in the Canaries (central, regional, and local), is not original. In fact, it is the same plan that was laid out under the supervision of Jaime Mayor Oreja in the Greco Plan, which sets forth the Spanish government's policy for foreigners. See Ministry of Interior (Government Delegation for Foreigners and Immigration), Global Program to Regulate and Coordinate Foreign Residents' Affairs and Immigration in Spain (Greco Plan), approved March 30, 2001 (published April 27, 2001), which is available at http://www.mir.es/dgei/programaenglish.htm, (accessed February 6, 2002).

3 Human Rights Watch interview, Carlos Guervós, Deputy Director of Immigration, Ministry of Interior, Madrid, November 12, 2001. After a visit to the facilities in 1999, the Office of the Ombudsman concluded that the facilities were inadequate and recommended the adoption of immediate measures of improvement (Recommendation No. 9912449), which have not yet been adopted. Ombudsman Annual Report, presented before the Spanish Parliament on October 8, 2001, Section 3.1.2.3. "The Centre for the Temporary Residence of Immigrants (C.E.T.I.) in Las Palmas," pp. 64-65.

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