According to several submissions to the UN’s Universal Periodic Review, the Spanish legal system allows for violation of human rights, either by directly ignoring EU standards, or through loopholes in existing laws, writes Human Rights Without Frontiers Director Willy Fautré.

An emblematic case in point is the abuse suffered by the Kokorev family (Vladimir Kokorev, his wife and their son), in which the Spanish judge put three family members in a lengthy pre-trial detention, combined with no access to their case file (a regime called “secreto de sumario”), and particularly harsh prison conditions reserved for terrorists and violent criminals (called FIES regime under Spanish laws).

According to attorney Scott Crosby, who submitted an application in July on behalf of Vladimir Kokorev to the European Court of Human Rights, a Spanish judge imprisoned all three family members from 2015 to late 2017 on a vaguely worded suspicion of money-laundering. No formal charges were laid, nor “could they be laid because there was no evidence that the Kokorevs had handled illicitly generated money”, Crosby says in his submission. Towards the end of these two years of imprisonment, detention was extended for a further two years, still in the absence of a formal charge and evidence of a predicate crime. On appeal this was commuted to territorial confinement which restricted the family to Gran Canaria and required them to report weekly to the local court.

During their pre-trial detention, the Kokorevs were robbed of their presumption of innocence, being treated in all respects as dangerous prisoners such as terrorists, sexual offenders or war criminals (FIES-5, the highest and harshest level of detention conditions) although they had never used or incited violence and had no prior criminal record, in Spain or elsewhere.

Over the last fifteen years, the European Parliament and the Council of Europe, in particular the Committee of Prevention of Torture (CPT), have expressed serious concerns and warnings about the FIES system. According to the submission of Human Rights Frontiers, the FIES - 5 status, to which the Kokorev family was subjected resulted in:

“...frequent changes of cell, the use of mechanical restraints when being moved, restricted visits and allowing the prison administration to monitor and record without judicial authorisation all of their communications and visits… [denial of] the benefit of European Prison Rules, such as the right to be detained separately from convicted prisoners...day release...contact between the family…[and the option to post] bail. Alternatives to incarceration were not considered or offered.”

Furthermore, the Kokorevs were subjected to the secreto de sumario regime, which meant that neither they nor their lawyers had any access to the Court files, the evidence, or the reasoning being used by the judge to keep them in prison.

As Human Rights Without Frontiers’ submission to the UPR explains: “Significantly, this case offers a unique corroboration that the Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (which should prevent the secreto de sumario from being used in the context of pretrial detention), has not been properly implemented by Spain via the Ley Orgánica 5/2015 of 27 April 2015.”

Another joint submission by a number of Spanish law firms that specialise in criminal and penitentiary law, denounces that pretrial imprisonment is used by Spanish judges to “soften” the person under investigation. The submission concludes, after explaining that Spain takes a predominantly inquisitorial approach to the criminal investigation, that: “This tendency towards the abuse of pretrial imprisonment is the result of (a) the features of the Spanish criminal system, in which there is an investigative judge; (b) the opportunities for the investigation derived from pretrial imprisonment, particularly when it is applied simultaneously with other measures that exist in the Spanish legal system, such as the secreto de sumario and the FIES, and (c) the fact that the right to compensation for [unlawful] pretrial imprisonment is contingent upon [proof of] innocence (there even existing different kinds of innocence for these purposes)."

Stakeholder submissions called for Spain to be held accountable for these human rights violations. Repeated recommendations from various voices call Spain to abolish the secreto de sumario and FIES system, to respect the presumption of innocence, and to reform the practice of lengthy pre-trial detention.

Currently, the Kokorev Case seems to be the only instance in which a Spanish judge used these three measures in combination with each other and therefore will also be the first chance for the European Court of Human Rights to rule on this kind of practice.

Last week, just prior to taking over the European Union presidency, the new Finnish government announced plans to make it compulsory for companies to conduct human rights checks. A year ago, this would have seemed out of the ordinary. But growing recognition of the human cost of weak regulations on business, coupled with an erosion of public trust in markets, has led to momentum around initiatives to ensure companies halt abuse in their supply chains, writes Business & Human Rights Resource Centre Executive Director Phil Bloomer.

On 14 May, the Dutch Senate adopted new legislation that says companies have a ‘duty of care’ to fight child labour in their supply chains. This year had already seen rumbles of debate around supply chain legislation in Germany, where a ministerial draft law became public in February, and related parliamentary debates kicking-off in the Danish parliament. On 3 June, the new Finnish government coalition published its programme, which includes a commitment to work towards such legislation nationally, but also at the European level, where it will control the EU presidency from 1 July.

The EU has passed legislation on specific issues such as illegally harvested timber or 'conflict minerals' in the past. But to regulate each issue separately has its limits. It was France that passed the first legislation with a general scope in 2017, the ‘Duty of Vigilance’ law. And this track has been followed in the political debates in Germany, the UK, Denmark, Norway, Finland, Switzerland and Luxembourg.

These ideas are not radical. In 2011, the United Nations and the Organisation for Economic Co-operation and Development (OECD) adopted by consensus new, coherent standards on how business should ensure it respects human rights in its global chains. A core element was the requirement to conduct due diligence on human rights risks in order to prevent such adverse impacts. Since then, the OECD has developed more detailed guidance on what good due diligence looks like. However, countries have been slow to turn this international soft law into hard law. Until now.

Companies seem to recognize this. William Anderson, in-house counsel for German footwear giant adidas, wrote for our blog series this week that “In short, it is not a question of if, but when such laws will be in place and how they will impact current business operations and practices”. In fact, a growing number of companies support this type of legislation, including BMW, Coca-Cola, and Trafigua, arguing that these laws level the playing field for responsible businesses and provide legal certainty of their responsibilities.

In the case of the Dutch child labour law, it was the chocolate company Tony's Chocolonely which launched a campaign in support of the legislation, and managed to rally larger industry peers such as Nestlé Nederland, Barry Callebaut and other major Dutch companies such as Heineken behind a supportive letter to parliament. In Finland the dynamics went one step further: businesses and civil society campaigned to have such legislation in the new government programme as a joint coalition, comprising 140 entities from Attac to Coca-Cola Finland.

But most companies aren’t prepared, and that is why we need these laws. Last November, the Corporate Human Rights Benchmark found that 40 out of 101 of some of the biggest companies in the world were failing to carry out proper human rights due diligence. Looking at 100 companies’ reports under the EU’s Non-Financial Reporting Directive, the Alliance of Corporate Transparency found that while 90% reported a commitment to respect human rights, only 36% describe their human rights due diligence system in any detail.

The stakes couldn’t be higher. At least 150 people died when Vale’s dam collapsed in Brumadinho, Brazil, on 25 January, and there are hundreds of high-risk dams out there. 166 million hidden workers are toiling for the world’s 50 biggest companies with no direct relationship or responsibility. The growing power of major tech companies like Facebook and Google increasingly impact all our privacy. Mandatory human rights due diligence on companies would go some way to ensuring that companies rid their operations and supply chains of abuses and are held responsible when they fail to act.

It’s good that many European countries seem to be recognizing this, and now they cannot afford to falter.