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Background

During the morning rush hour on March 11, 2004, ten bombs on four different commuter trains in Madrid exploded almost simultaneously. The explosions killed 191 and injured at least 1,400 people, and left a nation shaking with grief and disbelief. While the conservative Popular Party (PP) government of José María Aznar initially blamed Euskadi Ta Askatasuna (ETA), the police investigation quickly pointed to the involvement of Islamic fundamentalists with an alleged connection to al-Qaeda. The first five suspects were arrested on March 13, just two days after the attacks. Since then, Spanish authorities have detained at least forty-eight people. As of the end of 2004, eighteen people were in prison awaiting indictment, while forty-one people had been released without charge after questioning or freed on provisional release pending possible indictment.² Provisional release is applied to persons under investigation where the requirements under Spanish law to justify pre-trial detention do not exist. Over half of those arrested are Moroccan immigrants with residency in Spain.

Several of those suspected of involvement in 11-M had been the subject of prior police surveillance on suspicion of membership in an al-Qaeda cell in Spain. Spanish authorities had been monitoring a group since 1995. Most were of Middle Eastern origin with Spanish citizenship. Authorities suspected them of involvement in activities in support of al-Qaeda including recruitment and financial operations. Since mid-November 2001, when eleven men were arrested, a total of twenty-four people have been detained and accused of membership or collaboration with al-Qaeda; as of mid-November 2004, at least twenty-three were in pre-trial detention.³ None have yet been brought to trial.

Impact of the 11-M attacks on Spain’s Counter-terrorism Strategy

On March 14, three days after the bombings, the Spanish electorate unexpectedly gave the Partido Socialista Obrero Español (PSOE) a majority in parliament. The government of Prime Minister José Luís Rodríguez Zapatero does not envision making any changes to Spain’s existing antiterrorism measures, though the administration has announced plans for the creation of a National Antiterrorism Center to coordinate intelligence work between the National Police, the Civil Guard and the existing National Intelligence Center, as well as for increasing the number of agents in both agencies dedicated to intelligence-gathering on international terrorism.⁴ 

Regulation of mosques

The new government has, however, proposed and pursued new policies to respond to concerns about so-called radical Islamic activities in Spain. In May, newly-appointed Minister of the Interior José Antonio Alonso said he would seek tighter control over Spain’s mosques and the content of Islamic religious services. In an interview published in El País, Spain’s leading daily newspaper, Alonso said, “We really need to improve the laws to control Islamic radicals. We need to get a legal situation in which we can control the Imams in small mosques. That is where Islamic fundamentalism which leads to certain actions is disseminated.” While larger mosques have traditionally registered voluntarily with the state, authorities estimate that hundreds, if not thousands, of unregistered small mosques exist throughout the country. Alonso added that while “[w]e cannot name the Imam who is going to preside over a religious service…we can require of the Imam or preacher of any religion that it be known who he is and what he is going to say in the Mosque or church...We are talking about a phenomenon that can create a breeding ground for terrorism that kills people.”⁵

Expulsion of foreign terrorism suspects

The government did move quickly to implement another new policy: the expulsion of foreign nationals suspected of links to international terrorism. On May 30, 2004, the press reported that the Spanish government had used a dormant measure in the Law on Foreigners to expel two individuals suspected of terrorist activities.⁷ Article 54(1), in conjunction with Article 57(1), of the Law on Foreigners allows the state to expel foreign nationals who are considered to have participated in acts against national security or acts that might prejudice Spain’s relations with other countries, as well as those implicated in activities against public order defined as very serious under the Organic Law on Protection of Citizen’s Security (Ley Orgánica sobre Protección de la Seguridad Ciudadana).⁸ An expedited procedure set out in Article 63 of the Law gives an individual accused of these infractions forty-eight hours to contest the expulsion order. Those expelled under the power are forbidden from returning to Spain for a period of between three and ten years (Article 58(1)). Those detained prior to their expulsion are entitled to free legal assistance from a legal aid attorney, if necessary, and to an interpreter.

Mohamed Berzizoui, an Algerian with Moroccan citizenship, had legal residency in Spain, while Jousef Mahlili, a Moroccan, had a Spanish residency permit that had expired in March 2004, and had been living in Mourenx, France. France requested Spain’s cooperation in not renewing the permit, and Mahlili was in fact deported from France on May 6, 2004.⁹ Berzizoui was arrested on April 29, 2004, in connection with Judge Garzón’s investigation into the May 16, 2003, Casablanca bombings in which forty-four people died, four of whom were Spanish citizens, and released May 6 without charge.¹⁰  He was subsequently expelled from Spain following the expedited appeals procedure in which he was assisted by a legal aid attorney. Both men were deported to Morocco. Unidentified government sources explained that there was insufficient proof to bring the individuals to trial, but that there was “clear evidence” of their relationship to terrorist activities generally and the 11-M bombings in particular. A high-level police official is quoted as saying “There is a before and an after 11-M. What can we do when there isn’t criminal proof to bring a person to trial, but all of the evidence indicates that [he or she] was aware of, fomented or supported terrorist activities?”¹¹ According to the press, the General Commissariat for Information, the National Police department in charge of international terrorism, issued a report recommending immediate expulsion.¹²

Government authorities have stated that expulsions will be used in the future. Interior Minister Alonso stressed to Human Rights Watch that this measure is “legal, legitimate and obligatory; we must have the possibility of expelling [individuals] when this proof [of links to international terrorism] exists.”¹³ Alonso and his French counterpart, Dominique de Villepin, announced in July 2004 greater cooperation between the two countries in fighting international terrorism, including the creation of a working group to cooperate on the deportation of suspected members of violent Islamic organizations.¹⁴

Interior Minister Alonso told Human Rights Watch that to his knowledge, the two individuals who were expelled were not wanted by authorities in their countries of origin and were therefore not remanded to custody upon return.¹⁵ When asked whether individuals subjected to this expulsion procedure have the right to appeal on the grounds that they may face torture or ill-treatment upon return, the minister of the interior said that he was not aware of any case where this has occurred. In the event, he added, the appeals proceeding would have to determine whether these allegations had any basis in fact, like an asylum claim.¹⁶

International law prohibits the return, deportation, or extradition of a person when there is a credible risk of torture.¹⁷ Article 3 of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he will be in danger of being subjected to torture…For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.¹⁸

Furthermore, the U.N. Human Rights Committee (HRC) has interpreted the prohibition of torture in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) to include obligation not to return a person to a place where he or she would be at risk of torture: “In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”¹⁹

The prohibition against torture and ill-treatment, including the prohibition against returning a person to a country where he or she is at risk of torture or ill-treatment is absolute and permits no exceptions; states may not derogate from this obligation. Indeed, the prohibition has risen to the level of jus cogens and is a peremptory norm of international law. U.N. Special Rapporteur on Torture Theo van Boven has said that the “expulsion of those suspected of terrorism to other countries must be accompanied by an effective system to closely monitor their fate upon return, with a view to ensuring that they will be treated with respect for their human dignity.”²⁰

It is Human Rights Watch’s understanding that the Law on Foreigners does not set out specific guarantees for persons subject to expulsion, such as an automatic review of their risk of torture in their country of origin. In view of government statements to the effect that this administrative tool will be used in the future, Human Rights Watch urges Spain to take due precautions to ensure that it does not expose individuals to torture or cruel, inhuman or degrading treatment upon their expulsion to another country .

Impact of 11-M attacks on Moroccans and other Muslims in Spain

Many Spaniards feared a racist backlash against Moroccans as dozens of immigrants from that country have been arrested in connection with the 11-M bombings. Moroccans form the second-largest immigrant group in Spain; nearly 376,000 Moroccans have legal permits to live and work in Spain, and an estimated 200,000 more are undocumented.²¹ The relationship between the immigrant Moroccan community and the Spanish population has been marked by tension, mutual distrust, and occasional violence. On March 16, SOS Racismo, a nongovernmental organization dedicated to fighting all forms of racism, warned of the potential for “an increase in Islamophobia” and issued an appeal to the society as a whole, and public officials and the media in particular, to “actively prevent possible racist reactions and report them should they occur.”²² Local and national government officials called for tolerance, while Prime Minister Zapatero committed himself in his inauguration speech to fighting all forms of xenophobia, recalling that dozens of people from other nations died alongside Spaniards on March 11^th.²³ Forty-seven of the 190 people killed in the attacks were foreigners.

In the months following the attacks, an elevated sense of fear led many in the Moroccan community to alter their daily routines and keep as low a profile as possible. Human Rights Watch learned from members of the Moroccan community that women wearing the veil or head scarf and young men, especially those carrying backpacks, reported an increase in hostile looks and verbal insults on the street. The Association of Moroccan Workers and Immigrants in Spain (Asociación de Trabajadores e Inmigrantes Marroquíes en España – ATIME), a nongovernmental membership organization, urged Moroccans to make certain changes in their daily lives (for example, to avoid speaking Arabic loudly in public and meeting in large groups), to not respond to provocations, and to cooperate with the police. Mustapha El M’Rabet, the president of ATIME, explained:

People don’t go out like they did before; they don’t meet in large groups. Everyone is conscious of what happened. It is an intelligent way to help to lower the tension…It’s difficult to say how long this will last, there’s always the fear of the spark that could start a fire…We don’t want to play the victim too much…to denounce a situation can create another problem. Maybe further along people will begin to talk.²⁴

Beyond these anecdotal reports of “street hostility,” the much-feared increase in hate crimes against Moroccans or Muslims of any nationality has not materialized. To our knowledge, there have not been any clearly documented cases of racist violence that can be attributed directly to the March 11 bombings.²⁵ According to El M’Rabet, “the reaction has overall been exemplary, that of a society that knows how to distinguish between a few terrorists and a community.”²⁶

Similarly, law enforcement agencies do not appear to have engaged in widespread, indiscriminate police actions in the Moroccan community. In the period immediately following the attacks, there was an increased police presence on the streets in Madrid; El M’Rabet said that ATIME had received a few reports of what he called “excessive professional zeal” on the part of police officers in conducting identity checks of Moroccan men, including one man who said he had been stopped by the police ten times in one day.²⁷ As far as Human Rights Watch is aware, no organization has collected official complaints about this kind of police abuses in the wake of the bombings.