Country report and updates: Spain

Spain

Issues

  • Conscription is suspended. The right to conscientious objection is not recognised for professional soldiers.

Military recruitment

Conscription

Conscription is allowed by Article 30 of the Spanish constitution from 1978, which reads:

1. Citizens have the right and the duty to defend Spain.

2. The law shall determine the military obligations of Spaniards ... with all due guarantees...1.

However, with Law 17/1999, the Armed Forces Personnel (Regulations) Act (Régimen del Personal de las Fuerzas Armadas)2, the Spanish government in fact suspended conscription, originally aimed at ending conscription in 2003, but later brought it forward to 20013. Since 2002 the armed forces consist of professional soldiers only4.

Still, conscription is only suspended. Article 4 paragraph 2 of Law 17/1999 allows for the call-up of all forms of reservists if the needs of the national defence can not be met by professional soldiers only. The call-up of “compulsory reservists” (according to Article 178 possibly all Spanish citizens between 19-25 years), which basically would reintroduce conscription, requires the approval of congress. According to the law, this possibility is not limited to an emergency or war.

Professional soldiers

Law 37/2007 “about the military career” ('de la carrera militar')5 deals with the service of professional soldiers. Article 3 of the law provides for Spanish citizens and also for legally resident foreigners to join the Armed Forces, albeit under different conditions.

The Spanish Armed Forces maintain a joint recruitment website at http://www.soldados.com/, which also announces open positions for foreigners.

Conscientious objection

Conscientious objection for conscripts

The right to conscientious objection for conscripts is enshrined in Article 30 of the Spanish constitution. Paragraph 2 of this article requires that military obligations are only introduced “with all due guarantees, conscientious objection as well as other grounds for exemption from compulsory military service; it may also, when appropriate, impose a community service in place of military service6.

Only one year before the law to suspend conscription was passed, the Spanish government passed a new law on conscientious objection (Ley 22/1998, de 6 de julio, reguladora de la Objeción de Conciencia y de la Prestación Social Sustitutoria)7. However, with the suspension of conscription, it seems that this law is no longer in force.

Article 180 of Law 17/1999 regulates the right to conscientious objection in the case of a call-up of compulsory reservists. According to this article, compulsory reservists can declare their conscientious objection to serving in the Armed Forces or other services in which they would need to bear arms. According to this article, “this declaration, made by the interested party, will not require any other approval8.

Declared conscientious objectors can then only be assigned to services of general interest in which they do not have to bear arms. According to article 183 of the same law, conscientious objectors then have the same status as volunteers in the organisation, and do not have any military status.

However, from the law it is unclear whether a declaration for conscientious objection can only be made before the incorporation of a compulsory reservist into the Armed Forces, or whether such a declaration is also possible during service.

Conscientious objection for professional soldiers

Law 17/1999 does not include any regulation for conscientious objection of any soldier other than compulsory reservists. This means that professional soldiers and voluntary reservists do not have the right to conscientious objection according to Spanish law.

Article 117 paragraph 2 of Law 39/2007 has a provision for soldiers in a professional career for leaving the Armed Forces prematurely. According to this article, six months notice have to be given, and a compensation for training expenses has to be paid9.

Article 118 makes provisions for professional soldiers on a temporary contract. It allows for premature resignation within the first three years of a contract under “extraordinary circumstances”10.

None of this constitutes a right to conscientious objection.

Draft evasion and desertion

penalties

According to Article 102 of the Military Penal Code, disobeying orders can be punished with imprisonment from three months to two years.

If the disobedience persists and amounts to a non-fulfilment of military obligations, it can be punished with imprisonment from two years and four months up to six years11.

Desertion is punishable from two years and four months up to six years of prison, and if committed during times of war with six to 15 years of imprisonment12.

Practice

No information is available on practice.

Notes

1Spanish Constitution 1978, http://www.ejercito.mde.es/ingles/personal/constitucion/tituloi.html, accessed 11 August 2008

2Ley 17/1999 de Régimen del Personal de las Fuerzas Armadas, http://www.derecho.com/l/boe/ley-17-1999-regimen-personal-fuerzas-armadas/, accessed 12 August 2008

3REAL DECRETO 247/2001, 9 de marzo, por el que se adelanta la suspensión de la prestación del servicio militar, http://www.derecho.com/l/boe/real-decreto-247-2001-9-marzo-adelanta-suspension-prestacion-servicio-militar/, accessed 12 August 2008

4The Right to Conscientious Objection in Europe, Quaker Council for European Affairs, 2005, http://wri-irg.org/co/rtba/spain.htm, accessed 12 August 2008

5Ley 39/2007, de 19 de noviembre, de la carrera militar, http://noticias.juridicas.com/base_datos/Admin/l39-2007.tp.html, accessed 13 August 2008

6Spanish Constitution 1978, http://www.ejercito.mde.es/ingles/personal/constitucion/tituloi.html, accessed 11 August 2008

7Ley 22/1998, de 6 de julio, reguladora de la Objeción de Conciencia y de la Prestación Social Sustitutoria, http://www.derecho.com/l/boe/ley-22-1998-reguladora-objecion-conciencia-prestacion-social-sustitutoria/, accessed 12 August 2008

8Article 180, Ley 17/1999 de Régimen del Personal de las Fuerzas Armadas, http://www.derecho.com/l/boe/ley-17-1999-regimen-personal-fuerzas-armadas/pag_6.html#A174, accessed 12 August 2008

9Ley 39/2007, de 19 de noviembre, de la carrera militar, http://noticias.juridicas.com/base_datos/Admin/l39-2007.t5.html, accessed 13 August 2008

10Ley 39/2007, de 19 de noviembre, de la carrera militar, http://noticias.juridicas.com/base_datos/Admin/l39-2007.t5.html, accessed 13 August 2008

11Ley Orgánica 13/1985, de 9 de diciembre, de Código Penal Militar, http://noticias.juridicas.com/base_datos/Penal/lo13-1985.l2t5.html, accessed 13 August 2008

12Ley Orgánica 13/1985, de 9 de diciembre, de Código Penal Militar, http://noticias.juridicas.com/base_datos/Penal/lo13-1985.l2t6.html, accessed 13 August 2008

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Articles related to conscientious objection

01 Nov 1997
English
Pedro Oliver of KEM-MOC (the Basque CO Movement) evaluates the prison experience of insumisos as a political tool.

From the very beginning, in 1989, MOC and other anti-militarist groups have endeavoured to make their total resistance campaign ("Insumisión") its own best antidote against state repression.

01 Dec 1996
English

KEM-MOC Bilbao

Elias and Ramiro looked around as they entered the barracks on 5 November. How on earth had they, two anti-militarists, ended up here? "OK, it's tough to be a MOC activist, but standing In the ranks trying to look military as you figure out what the sergeant's barking means, that may be just too much!"

They are taking it with good humour, as If they're in a surrealistic story. They'll play soldiers for awhile before they finally report to -their" commander and announce that they are total resisters and therefore refuse to obey orders and to perform military service.

01 Dec 1996
English

As well as being Prisoners for Peace Day, 1 December is now World AIDS Awareness Day. Insumisión Rosa (Pink Resistance), the gay group in MOC-Madrid, hand out the following text:

Since objectors have been going to prison, we have denounced the treatment of people deprived of their liberty and of prison rules which block the flee circulation of syringes and condoms.

03 Apr 1996
English

CCPR/C/79/Add.61
3 April 1996

(...)

15. Finally, the Committee is greatly concerned to hear that individuals cannot claim the status of conscientious objectors once they have entered the armed forces, since that does not seem to be consistent with the requirements of article 18 of the Covenant as pointed out in general comment No. 22 (48).

(...)

01 Dec 1995
English

By RAFAEL SAINZ DE ROZAS

--This year will be the last. Starting next year, the Prisoners for Peace Honour Roll will not include those hundreds of Spanish names which, since 1989, have reminded us of the total resisters in jail. As laid down in the new penal code-approved on 8 November-after next May no one will be sent to prison for insumisión (total resistance to military and alternative service) in the state of Spain.