Legal framework on freedom of religion and actual application
Article 16 of the Constitution of Spain of 1978 guarantees freedom of religion and worship. This fundamental right is regulated by Organic Law 7/1980 on Religious Freedom, and other sectoral laws and decrees.
The latter include Royal Decree 2/2015 of 23rd October, revising the Workers' Statute Law (Articles 4, 17 and 54); Organic Law 1/1996 of 15th January, on the Legal Protection of Minors, partially amending the Civil Code and the Code of Civil Procedure (Articles 2, 3, 6 and 9d); Organic Law 3/2018, of 5th December, on the Protection of Personal Data and Guarantee of Digital Rights (Article 9); Organic Law 4/2000 of 11th January, on the Rights and Freedoms of Foreigners in Spain and their Social Integration (Articles 3, 23 and 41.1.h); Organic Law 9/2011, of 27th July, on the Rights and Duties of Members of the Armed Forces (Articles 4 and 9); Royal Decree 2001/1983, of 28th July, on the Regulation of Working Hours, Special Working Days and Breaks (Article 45), and Royal Decree 684/2010, of 20th May, approving the Military Honours Regulation (fourth additional provision).
Spain is a party to several international treaties that protect freedom of religion, such as the Universal Declaration of Human Rights (Article 18), the International Covenant on Civil and Political Rights (Article 18), the United Nations Convention on the Rights of the Child (Article 14 ), the European Convention on Human Rights (Article 9), the Charter of Fundamental Rights of the European Union (Art. 10), and the European Social Charter (revised) (Articles 21, 22, 24 and E).
Spain has agreements with different religious groups. It has signed a series of international treaties with the Holy See, acting for the Catholic Church, on episcopal appointments and the equality of all citizens before the law, including clergy and religious; on legal matters; economic, education and cultural affairs; recognition of non-Church-related studies undertaken at Catholic universities; religious assistance in the Armed Forces and the military service of clerics and religious, as well as on matters of common interest in the Holy Land.
The year 2022 marks the 30th anniversary of the laws the Spanish government signed with the country’s other religions, namely Law 24/1992 with the Federation of Evangelical Religious Entities of Spain, Law 25/1992 with the Federation of Jewish Communities of Spain, and Law 26/1992 with the Islamic Commission of Spain.
Other laws that affect freedom of religion are Organic Law 1/2002 on the Right of Association, of 22nd March; Law 50/2002 on foundations, of 26th December; Royal Decree 589/1984, of 8th February, on the Religious Foundations of the Catholic Church; Royal Decree 1384/2011, of 14th October, implementing Article 1 of the State Cooperation Agreement with the Islamic Commission of Spain; Royal Decree 932/2013, of 29th November, regulating the Advisory Commission on Religious Freedom; Royal Decree 593/2015, of 3rd July, on the rootedness (notorio arraigo) of religious groups in Spain; Royal Decree 594/2015, of 3rd July, which regulates the Religious Entities Registry, completed by the Resolution of 3rd December 2015, of the General Directorate of International Legal Cooperation and Relations with Religions, on the registration of Catholic entities in the Religious Entities Registry, and by the Directive of 4th June 2014 issued by the General Directorate of International Legal Cooperation and Relations with Religions, which establishes certain procedures in relation to the Religious Entities Registry.
Wherever circumstances may hinder access to religious assistance, the Spanish government will facilitate its provision. This includes prisons, under Order of 24th November 1993 based on the Agreement on Catholic religious assistance in prisons, and Royal Decree 710/2006, of 9th June, for Evangelical, Jewish and Islamic religious assistance in prisons; in hospitals, under the Order of 20th December 1985 based on the Agreement on Catholic Religious Assistance in Public Hospitals; in juvenile detention centres, under Royal Decree 1774/2004, of 30th July, approving the Regulation of Organic Law 5/2000, of 12th January, regulating the criminal responsibility of minors (Articles 39 and 41), and in detention centres for foreigners, under Royal Decree 162/2014, of 14th March, approving the regulations of the operation and internal regime of detention centres for foreigners (Article 45).
Marriage celebrated in accordance with the rite of a registered religious denomination that has agreements with the state or is recognised as being rooted in Spain produces civil effects and may be registered in the Civil Registry (Articles 59, 60 and 63 of the Civil Code). Likewise, marriage annulled by ecclesiastical tribunals or pontifical decisions on marriages validly celebrated, but not consummated, may have legal effectiveness provided they meet certain requirements (Article 80 of the Civil Code).
Law 41/2002, of 14th November, regulating patient autonomy and rights and obligations regarding information and clinical documentation, recognises the right of patients to refuse to receive certain treatments (Article 2.4), thus protecting the right to refuse on religious grounds.
Similarly, Organic Law 2/2010, of 3rd March, on sexual and reproductive health and voluntary termination of pregnancy, and Organic Law 3/2021, of 24th March 2021, on the regulation of euthanasia, define the right of conscientious objection of health professionals who do not wish to participate in abortions (Article 19.2) or euthanasia (Article 16).
In education, the right to religious and moral education is guaranteed by Organic Law 8/1985, of 3 July, regulating the Right to Education (Articles 4.1.c and 6.1.f). However, successive reforms have gradually marginalised religion from all levels of education. This might constitute a violation of international agreements (ICCPR, Art. 18(4)) and agreements signed with religious groups.
Finally, with respect to criminal law, discrimination based on religion is a factor taken into account in Spain’s Penal Code (for example, Articles 314, 510, 511, 512, 515.4), including crimes against religious sentiments (Articles 522-525), with religion considered in general an aggravating factor with respect to criminal responsibility (Article 22.4).
In November 2022, the Spanish parliament amended the Penal Code to include harassment of women who go to abortion clinics, imposing sentences ranging from three to 12 months in prison, or 31 to 80 days of community work (Article 172 quater). This new criminal offence could clash with the freedom of conscience and religion of those who protest in front of such facilities.
Incidents and developments
As in previous years, a number of attacks and violent incidents that could be considered hate crimes under Spanish law occurred across the country in 2021 and 2022. Hate crimes (physical attacks on property and individuals) were numerous. Insulting graffiti on Catholic churches and other Church-owned buildings were the most common form of vandalism, as exemplified by attacks on the front of the Basilica of Santa Maria del Pi in Barcelona, as well as churches in Morcín (Asturias) and Baeza (Jaén).
There was one terrorist attack during the period under review, on 25th January 2023 in Algeciras. A 25 year old man, Yasin Kanza, who had been under surveillance by the authorities for possible Islamist extremist links went into two Catholic churches, destroyed the altar in one of them, murdered with a machete the Mass attendant and severely injured the priest and other four participants in the Mass which had just ended. The perpetrator was arrested as he kneeled down to pray. The reaction of the authorities was swift, and an investigation was open into possible extremist network activities around Kanza.
Other forms of vandalism that constitute hate crimes, such as the beheading of a statue of the Child Jesus in San Lorenzo de El Escorial and the burning of a church in Castellón, were also perpetrated, to cite just a few. The demolition by the local authorities of religious monuments under the Democratic Memory Law are increasingly frequent, as evidenced by a case in Viñalesa (Valencia).
Increasingly, tabernacles were desecrated with consecrated hosts and liturgical items stolen from Catholic churches. These incidents happened throughout the country during the period under review with targets including a church in Benaque (Malaga), the Stella Matutina convent in Illescas (Toledo) and La Bien Aparecida church in Santander.
Offending religious sentiments tended to increase in the period leading up to Christian holidays such as Christmas, Easter, or Corpus Christi. The Europa Laica-Cádiz association called for a ban on nativity scenes and Christmas carols outside religion class in public schools. In one school in Llodio, teachers forbade students during the course in religion to set up a nativity scene outside the educational establishment, as they had done for the past 25 years.
In the period under review, some bishops were harshly criticised for expressing their opinion on certain pieces of legislation such as the laws on euthanasia and abortion, and attempts were made to prevent them from exercising their right to freedom of expression, as was the case for the archbishop of Oviedo.
The education law, revised in 2020 for the first time since the restoration of democracy in Spain, was completed without the consensus of civil society groups and the professional educational community. In the revision, religion is no longer a mandatory subject. In so doing, the law fails to uphold the terms of the concordat between Spain and the Holy See in educational matters. The debate concerning the place of religion in education is ongoing as secularist groups call for its total elimination from the curricula in publicly funded education.
Concerning the right to conscientious objection for health care professionals regarding euthanasia, under the 2021 law only health professionals directly involved can exercise their right to refuse. The objection must be recorded in a confidential registry and the data protected. In the University Hospital of Toledo, however, the unions denounced that the confidentiality requirements were not respected with the registration of conscientious-objector doctors.
Pro-life groups who regularly pray the rosary at abortion clinics criticised changes to the Penal Code that classified their action as harassment. Pro-life activists insisted on continuing their peaceful prayers in public spaces, rejecting the view that their action constitutes “harassment”; for them, they are exercising several fundamental rights recognised and protected in the Spanish Constitution, most notably freedom of religion, freedom of expression, and freedom of assembly.
During the period under review, the government sought to accuse the Catholic Church of improperly holding about a thousand properties, as part of a list of around 35,000 properties the Church registered between 1998 and 2015. Prime Minister Pedro Sánchez visited the headquarters of the Catholic Bishop’s Conference of Spain (Conferencia Episcopal Española, CEE) to meet and discuss this issue with its president, Cardinal Juan José Omella. The meeting was held after a joint CEE-government commission completed a revision on property registered by the Catholic Church. The CEE provided Mr Sánchez with a list of one thousand properties that were erroneously registered in its name.
Following the controversy, the left wing Unidas Podemos of Cordoba reiterated its long-standing demand that the Church return Cordoba’s cathedral-mosque to the people.
In June 2022, the CEE disagreed with the decision by the Congress of Deputies (lower house of parliament) to set up a commission of enquiry led by the Ombudsman’s Office to address allegations of sexual abuse of children in the Catholic Church. Then CEE Secretary General, Archbishop Luis Argüello, stated that the CEE ruled out actively participating in the commission as it planned to investigate abuses committed against minors exclusively by members of the Catholic Church, and not those committed by others in other social contexts. Indeed, the Prosecutor's Office reported that, out of 15,000 reported cases, only 69 involved the Church. Notwithstanding this apparent bias, most parties in the house voted in favour of the commission.
The Federation of Evangelical Religious Entities of Spain (Federación de Entidades Religiosas Evangélicas de España, FEREDE) wrote to the Royal Household urging King Felipe VI to be neutral in his public acts as Head of State; this request stems from his participation in the Eucharist in the Cathedral of Santiago de Compostela on the Apostle’s feast day. In reply, the government said that it had tasked the Advisory Commission on Religious Freedom with a study of religious freedom in Spain.
The Union of Islamic Communities of Spain (Unión de Comunidades Islámicas de España, UCIDE) published its 2021 Annual Report prepared by the Andalusian Observatory. The study found a climate of greater acceptance of the Islamic community in Spain but reported hate speech by the extreme right and the lack of agreements with some administrations concerning Muslim burials.
2022 marked the 30th anniversary of the agreements between the Government of Spain and Islamic communities and the creation of the Islamic Commission of Spain (Comisión Islámica de España, CIE), as well as cooperation agreements with other religions.
The Federation of Jewish Communities of Spain has not released the Report on Anti-Semitism in Spain for the years 2020, 2021 and 2022. On its website, it decried anti-Semitic graffiti, in particular those in the town of Castrillo Mota de Judios (Jewish Hill Camp).
In the fight against anti-Semitism in Spain, the Jewish community praised a bill by the Madrid (Regional) Assembly that would withhold public funding from companies and associations suspected of anti-Semitic actions.
Prospects for freedom of religion
Religious freedom in Spain is guaranteed within the law and, during the period under review, there have positive steps such as the general acceptance of the Islamic community within society. Nonetheless challenges exist, specifically an apparent marked growth in anti-Christian incidences and prejudice. These range from physical attacks on property and individuals to a certain climate wherein the present government appears to demonstrate an increasing intolerance to the majoritarian religious group. This has been evidenced by political decisions concerning education or health reform; the debate concerning conscientious objection regarding the new euthanasia law, and the issue of child abuse where the Catholic Church would seems to be singled out for investigation, with an apparent lack of attention to similar cases perpetrated by other groups within Spanish society.
Notwithstanding these challenges, the prospects for religious freedom in Spain remain unchanged and positive.
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