...

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IV. CONCLUSIONS

53. Spain is a country that has agreed to cooperate with all existing international and regional monitoring procedures and mechanisms of the protection of human rights, notably in the area of prevention and suppression torture and cruel, inhuman or degrading treatment or punishment. Thus, Spain is a party to the International Covenant on Civil and Political Rights and the Optional Protocol thereto relating to communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant. Spain has also ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and has made the declaration under article 22 of the Convention which provides for the examination of communications from individuals claiming to be victims of a violation of the provisions of the Convention. Furthermore, Spain is among those Member State that have issued standing invitations to all thematic special procedures of the Commission on Human Rights, including the Special Rapporteur on the question of torture, to undertake missions to the country (the total number of countries having issued such standing invitations was 48 at the time of writing this report). The willingness of Spain to open itself to international procedures of scrutiny and accountability is highly commendable.

54. At the regional level, Spain is a party to the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and has thus accepted the jurisdiction of the European Court of Human Rights, which has the competence to take decisions on petitions relating to alleged violations of the Convention. Moreover, Spain is a party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment which provides for a system of visits by the Committee established under the Convention (CPT) so as to examine the treatment of persons deprived of their liberty.

55. The above-mentioned worldwide and regional instruments and mechanisms for adjudication, investigation, inspection, reporting and advice, whose pre-eminent aim, insofar as torture is concerned, is to suppress and to prevent this practice, are mutually reinforcing and complementary. The effectiveness of all these instruments and mechanisms depends largely on the degree of their impact on domestic practices and conditions. It is indeed important that public authorities and important sectors of civil society be aware of international human rights standards and procedures as a matter of public interest and public debate. Such public interest and public debate are not sufficiently developed in most, if not all, countries the world.

56. Many countries face special conditions and serious difficulties of a socio-political and economic nature that adversely affect the enjoyment of human rights and fundamental freedoms. The present report, based on a one-week mission to Spain, is not the proper place or context to trace historical, cultural and geographical factors that

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have a bearing on the human rights situation in Spain. However, one particular factor that did come up repeatedly and emphatically in the context of the mission and that has major negative implications for human rights, particularly in terms of the rights to life and the security of the human person, are acts and threats of terrorism. Over the years ETA has carried out many acts of terrorism, including fatal bombings and shootings, that directly victimized many hundreds of people and spread fear for their lives and security among many more. The Special Rapporteur met with organizations and persons who live under the constant threat of becoming victims of terrorist attacks. The Special Rapporteur also met with the staff of an office that provides assistance to victim of terrorism. He fully associates himself with the unequivocal condemnation by the General Assembly of all acts, methods and practices of terrorism, in all their forms and manifestations, whenever and by whomsoever committed, regardless of their motivation, as criminal and unjustifiable.¹⁶

57. At the same time, the Special Rapporteur has to stress, as do the many pronouncements to that effect by universal and re regional human rights mechanisms, that the lawfulness of counter-terrorism measures depends upon their conformity with international human rights law.¹⁷ He noted with full approval that high Spanish political office-holders were unequivocal in their assertion that all measures to combat terrorism must remain within the confines of legality. In this connection, it must be recalled that, as the Special Rapporteur has outlined and underlined at many occasions¹⁸ and as repeatedly stated by all competent universal and regional human rights organs, the right to freedom from torture and from cruel, inhuman or degrading treatment is absolute and non-derogable in all circumstances. The Special Rapporteur notes in this regard that in those instances where human rights may be subject to limitations, and even derogations, a margin of appreciation may be granted to States, but that no such margin of appreciation, or discretion, is allowed where a non-derogable right is at stake, such as the prohibition of torture and cruel, inhuman or degrading treatment. In the same context, it should also be noted that the absolute and non-derogable prohibition applies not only to torture as such, but also to cruel, inhuman or degrading treatment or punishment. In submitting his findings and conclusions in connection with his visit to Spain, the Special Rapporteur also wishes to refer to the view of the European Court Human Rights - expressed in relation to certain acts that had been classified in the past as “inhuman and degrading treatment” as distinct from “torture” - that the increasingly high standard being required in the area of the protection of human rights and fundamental freedoms correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.¹⁹

58. The Committee against Torture, in its conclusions and recommendations, adopted after examining the fourth periodic report of Spain on the implementation of the Convention in November 2002, observed with concern the dichotomy between the assertion of the State party that, isolated cases apart, torture and ill-treatment did not occur in Spain and the information received from non-governmental sources which revealed repeated instances of torture and ill-treatment by the State security and police forces.²⁰The Special Rapporteur during his visit to Spain similarly encountered these opposing views. According to the political authorities of the Spanish Government in Madrid, continuous and repeated allegations of torture and ill-treatment are false and fabricated, such allegations serving as a ploy to discredit the reputation of a country that is democratic and respects the rule of law. On the o her hand, certain non-governmental

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groups and individuals claim that torture and ill-treatment by State security and police forces is systematically used. The Special Rapporteur believes that he should not only acknowledge that such divergent views exist, but that he also has the duty to draw further conclusions on the basis of his own findings. In this regard, he attaches great value to the opinion of credible interlocutors from the judiciary, the academic world and civil society that certain actors and militants supporting radical Basque causes may well use as a tactic the systematic practice of trumped-up allegations torture and ill-treatment. At the same time, these interlocutors also conveyed their opinion to the Special Rapporteur that security and law enforcement agents, particularly their counter-terrorist activities, do resort more than sporadically to practices that constitute torture or cruel, inhuman or degrading treatment. This opinion was shared by a considerable number of non-governmental organizations that the Special Rapporteur met and was confirmed by a series of testimonies presented to the Special Rapporteur by persons who had been arrested, detained and interrogated by the State security and police forces. These statements referred to treatment that included beatings, exhausting forced physical exercises, asphyxiation by placing plastic bags around the head (“bolsa”) and humiliating sexual harassment. It is the considered view of the Special Rapporteur, in the light of the internal consistency of the information received and the precision of factual details, that these allegations of torture and ill-treatment cannot be considered to be fabrications. The Special Rapporteur does not conclude that the treatment just described would constitute a regular practice but, in his view, their occurrence more than sporadic and incidental.

59. The Convention sets out a series of obligations to prevent and suppress practices of torture and ill-treatment. Great importance must be attached to the obligation to undertake a prompt and impartial investigation whenever there is reasonable ground to believe that an act of torture has been committed (art. 12) and to the duty to have allegations and complaints of torture promptly an impartially examined (art. 13). The Spanish legal system does provide for investigative mechanisms and procedures, but there are a number of reasons why this investigative capacity is underutilized and often ineffective. The denial that the practice of torture or ill-treatment occurs, the deterrent, repeatedly reported to the Special Rapporteur, that allegations of torture are countered by criminal charges of defamation, and the questionable independence and impartiality of internal accountability mechanisms with regard to law enforcement officials²¹ are among the factors that contribute to the absence of an effective and prompt investigative practice and policy as regards the issue of torture and ill-treatment.

60. The Special Rapporteur fully shares the view repeatedly expressed by CPT that experience has shown that it is in the period immediately following deprivation of liberty that the risk of intimidation and physical ill-treatment is the greatest.²² It is crucial that in this period of police custody effective safeguards against torture and ill-treatment be ensured. These safeguards must weigh the more heavily when persons are held in incommunicado detention, as provided for in the Spanish Code of Criminal Procedure with respect to persons suspected of certain categories of crimes, including membership in or connection with an armed group, terrorists or rebels. The issue of incommunicado detention is always of special concern to the Special Rapporteur in view of the opinion repeatedly expressed by the Commission on Human Rights that prolonged incommunicado detention may facilitate the practice of torture and can in itself constitute a form of cruel, inhuman or degrading treatment, or even torture.²³ It is during this

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period that the detainee is deprived of basic guarantees, in particular access to a lawyer or to a doctor of his/her choice, and when he/she is not able to contact his/her family or friends. It is true, as emphasized by the Spanish authorities, that in accordance with the Code of Criminal Procedure a detainee may be ordered held incommunicado only by a judicial authority and with proper substantiation; however, the Special Rapporteur has received ample information from a variety of sources that in this regard judicial control is more often of a formal and administrative nature than substantive and scrutinizing. The Special Rapporteur is also concerned that someone held incommunicado is not in a position to consult in private with a lawyer of his/her choice, or even with an assigned lawyer.

61. While one monitoring body - the Committee against Torture - has expressed serious concern about the incommunicado regime in the Spanish context²⁴ and another monitoring body, the Human Rights Committee - has stated that provisions should be made against incommunicado detention,²⁵ and while the Commission on Human Rights has repeatedly labelled prolonged incommunicado detention as a condition that facilitates the practice of torture, recent legal developments in Spain appear to ignore international opinion in this respect and tend to go in the opposite direction. In fact, the recent Organic Laws 13/2003 of 24 October 2003 and 15/2003 of 23 November 2003, amending the Spanish Criminal Code and Code of Criminal Procedure, serve in the Special Rapporteur’s view as a consolidation of the incommunicado regime in cases relating, inter alia, to other crimes committed by common accord and in an organized manner by two or more individuals by allowing the five-day incommunicado period in police detention to be prolonged by another five days’ incommunicado detention in prisión provisional.

62. Relations between central authorities in Madrid and Basque nationalist parties and movements are strained and reflect the tendencies and tensions of increased polarization. This also tends to have a bearing on the perception of victims belonging to opposing camps, i.e. victims of acts of violence and terrorism, and victims of torture and ill-treatment. Instead of emphasizing the differences between the two categories of victims, the Special Rapporteur would draw attention to the fact that from the human rights and humanitarian perspective, all the victims have had their basic rights to life, physical integrity and security placed in serious jeopardy and all are entitled to effective redress and reparation. From the same perspective, the Special Rapporteur cannot but fully agree with views expressed and statements made to him by staff of an office that takes care of victims of terrorism to the effect that both terrorism and torture must be condemned wherever they occur, and that human rights and their guarantees, including basic guarantees for persons deprived of their liberty, are indivisible and must be applied without exception.

63. At the end of his visit to Spain the opinion of the Special Rapporteur that there must be democratic and public space to raise and discuss fundamental human rights issues such as those falling within his mandate was strengthened. Denial and silence jeopardize the values inherent in human dignity and human security. Vigilant and vocal human rights organizations and human rights defenders deserve, in Spain as everywhere else, praise and protection.

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V. RECOMMENDATIONS

64. The highest authorities, in particular those responsible for national security and law enforcement, should officially and publicly reaffirm and declare that torture and cruel, inhuman or degrading treatment or punishment are prohibited under all circumstances and that information on and allegations of the practice of torture in all its forms will be promptly and thoroughly investigated.

65. Taking into account the recommendations of international monitoring mechanisms, the Government should draw up a comprehensive plan to prevent and suppress torture and other forms of cruel, inhuman or degrading treatment or punishment.

66. Since incommunicado detention creates conditions that facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture, the incommunicado regime should be abrogated.

67. All persons held in detention by law enforcement agencies should promptly and effectively be ensured (a) the right of access to a lawyer, including the right to consult the lawyer in private; (b) the right to be examined by a doctor of their own choice, it being understood that such examination may take place in the presence of a State-appointed forensic doctor; and (c) the right to have relatives informed of their arrest and place of detention.

68. Each interrogation should begin with the identification of all persons present. All interrogation sessions should be recorded, preferably video-recorded, and the identity of all persons present should be included in the record. In this regard, the practice of blindfolding and hooding should be explicitly forbidden.

69. Complaints and reports of torture or ill-treatment should be investigated promptly and effectively. Legal action should be taken against the public officials involved, and they should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. The investigation should be independent of suspected perpetrators and the agency they serve. Investigations should be carried out in accordance with the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly in its resolution 55/89.

70. Legal provisions should be effectively and expeditiously implemented to ensure that victims of torture or ill-treatment obtain redress and adequate reparation, including rehabilitation, compensation, satisfaction and guarantees of non-repetition.

71. In assigning prisoners from the Basque country to prisons, due consideration should be given to maintaining social relations between the prisoners and their families, in the best interests of the family and the prisoners‘ own social rehabilitation.

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72. Given that, owing to time constraints the Special Rapporteur on the question of torture was unable to include comprehensively in his inquiries and findings alleged and reported practices of race-related ill-treatment of foreigners and Roma, the Government may wish to consider inviting the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to visit the country.

73. The Government is further invited to ratify, at an early date, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which not only provides for the establishment of an independent international mechanism, but also for independent national mechanisms for the prevention of torture at the domestic level. The Special Rapporteur deems such independent national control and inspection mechanisms to be an important additional tool and safeguard to prevent and suppress torture and ill-treatment with potentially beneficial effects for persons deprived of their liberty in all countries, including Spain.

Notes

...

¹⁶ See General Assembly resolution 57/219.

¹⁷ See Digest of Jurisprudence of the United Nations and Regional Organizations on the Protection of Human Rights while Countering Terrorism (New York and Geneva, 2003), pp. 10 et seq.

¹⁸ See, in particular, E/CN.4/2002/137 and A/57/173.

¹⁹ European Court of Human Rights, Selmouni v. France, 28 July 1999, para. 101.

²⁰ Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 44 (A/58/44), para. 60.

²¹See European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Spanish Government on the visit to Spain from 22 to 26 July 2001, CPT/Inf(2003)22, paras. 27-33.

²² The CPT standards, CPT/lnf(2003)1, pp. 9 and 12.

²³ Most recently in Commission on Human Rights resolution 2003/32, para. 14.

²⁴ See Official Records of the General Assembly, ibid., para. 62.

²⁵ Human Rights Committee, general comment No.20, para. 11.