The complainant, Mikel Kabikoitz Carrera Sarobe, is a Spanish national born on 30 May 1972 in Pamplona. The complainant maintains that he is a victim of a violation by France of article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is represented by counsel. France made the declaration under article 22 of the Convention on 23 June 1988.
The facts as submitted by the complainant
On 12 February 2013, Central Court of Investigation No. 4 of the National High Court of Spain issued a European warrant for the arrest of the complainant.3 The purpose of the warrant was to conduct the criminal prosecution of the complainant in the wake of a ruling ordering his imprisonment in connection with an investigation where he was charged with the following offences: participation in a terrorist organization or group; 118 attempted murders and terrorist acts; the stockpiling of weapons or ammunition; and the possession or deployment of explosive, flammable, incendiary or asphyxiation devices or their components. These charges related to a vehicle bombing of the Civil Guard barracks in Burgos on 28 July 2009, the aim of which was to cause the death of everyone in the building. The attack was claimed by the terrorist organization Euskadi Ta Askatasuna (ETA) a few days later.
- When the European arrest warrant was issued, the complainant was serving a prison sentence in France for other offences. ↩
According to the arrest warrant, the inquiry conducted by the Central Court of Investigation contained sufficient prima facie evidence of the complainant’s involvement. That evidence was drawn from statements made by the defendant Íñigo Zapirain Romano, which were corroborated by statements made by Beatriz Etxebarria Caballero, who was also under indictment.
The complainant states that Ms. Etxebarria Caballero and Mr. Zapirain Romano were arrested on 1 March 2011 and immediately placed in incommunicado detention. In that form of detention, provided for in counter-terrorism legislation, detainees are held in solitary confinement and denied the opportunity to be assisted by a lawyer of their choice. The couple were regularly brought before a forensic doctor.4 In the forensic doctor’s report of 2 March 2011, it is noted that Ms. Etxebarria Caballero had stated that she had endured ill-treatment, that unsuccessful efforts had been made to insert a broomstick into her vagina, that she had had a plastic bag put over her head (what colour it was she did not know, since she says that she was wearing a mask), that she had not lost consciousness and that she had had water poured on her in preparation for electrodes to be attached to her body (she said she knew that they were electrodes because she had been told so), although ultimately that had not been done. On 5 March 2011, Ms. Etxebarria Caballero stated before the examining judge of the National High Court that she did not stand by her statements, as they had not been made under normal conditions; she described the treatment that she had been subjected to and said that the forensic doctor had offered to examine her but she had rejected the offer.
- The forensic doctor’s reports are included in the case file before the Committee. ↩
On 20 February 2012, Mr. Zapirain Romano also claimed before the examining judge that he had given his statements under torture.
On 15 March 2011 and 27 April 2011 respectively, the two defendants lodged complaints with the duty court of Bilbao stating that they had been subjected to torture and ill-treatment by the Civil Guard while they had been in incommunicado detention. Mr. Zapirain Romano described repeated acts of torture, including threats, constant beatings, countless knee bends and having a plastic bag put over his head. His complaint was considered by the Bilbao Court of Investigation No. 4.
Ms. Etxebarria Caballero’s complaint was dismissed and on 28 September 2011 her appeal was rejected by the Bizkaia Provincial High Court. On 10 May 2012, finally, the Constitutional Court rejected her appeal for protection (amparo). She then applied to the European Court of Human Rights.
The complainant also refers to a report issued on 30 April 2013 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment on its visit to Spain. The report refers to credible and consistent allegations of ill-treatment from persons who had been held in solitary confinement in an attempt to induce them to sign confessions.
On 4 February 2014, the Advocate General at the Court of Appeal of Paris notified the complainant, who had been detained since 25 May 2010 in the South Île-de-France Prison of Réau, France, that a European arrest warrant had been issued for him. As part of the follow-up procedure before the Investigation Division of the Paris Court of Appeal, the complainant stated that he did not consent to being surrendered to the Spanish authorities and contended that the statements made by Mr. Zapirain Romano and Ms. Etxebarria Caballero had been obtained under torture. On 2 April 2014, the Investigation Division decided to defer its ruling pending a final decision on Mr. Zapirain Romano’s complaint of torture and ill-treatment.
On 10 June 2014, Bilbao Court of Investigation No. 4 handed down a stay of proceedings in response to that complaint, on the grounds that the commission of the offences referred to in the complaint was not sufficiently substantiated. On 24 June 2014, Central Court of Investigation No. 4 of the National High Court of Spain informed the Paris Court of Appeal of the stay of proceedings. As the stay was not appealed, the proceedings were dismissed.
On 1 October 2014, the Paris Court of Appeal held another hearing, at which the complainant asked the Court to refuse to act on the European arrest warrant on the grounds that, according to human rights organizations, complaints of torture were not considered with all due seriousness in Spain, that they were too often dismissed even though the necessary inquiries had not been conducted, and that statements obtained under torture were used as evidence in judicial proceedings. The complainant cited in this regard the recommendations of the Human Rights Committee,5 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment6 and the Committee against Torture.7 He also referred to the judgments of the European Court of Human Rights in connection with incommunicado detention and the use as evidence of statements made by persons in such detention.
- CCPR/C/ESP/CO/5. ↩
- “Report to the Spanish Government on the visit to Spain carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 31 May to 13 June 2011”, 30 April 2013 (CPT/Inf (2013) 6) (available in English and Spanish only). ↩
- CAT/C/ESP/CO/5. ↩
On 7 October 2014, as the defendant’s case was being considered, the European Court of Human Rights handed down a judgment in the Etxebarria Caballero v. Spain case. The European Court noted the inadequacy of the investigation conducted by the Spanish authorities after the complaint and found that Spain had failed to fulfil its procedural obligation under article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).8
- Etxebarria Caballero v. Spain (No. 74016/12), 7 October 2014, paras. 57 and 58. With regard to the allegations of ill-treatment made by Ms. Etxebarria Caballero, the judgment stated that the Court was of the view that the evidence before it did not allow it to establish, beyond reasonable doubt, that the complainant had been subjected to treatment that had attained a threshold of severity, in breach of article 3 of the Convention. It wished to emphasize that that inability was in large part a result of the Spanish authorities’ failure to conduct a thorough and effective investigation into the complaint of ill-treatment submitted by the complainant. ↩
The Paris Court of Appeal did not take into account the judgment of the European Court of Human Rights and, on 12 November 2014, in implementation of the European arrest warrant, it ordered the deferred surrender of the complainant — deferred because he was also being prosecuted in France — to the Spanish authorities. His appeal against this decision was dismissed by the Court of Cassation on 16 December 2014. The Court of Cassation noted that the complainant’s claims were unfounded, being no more than allegations, and that the Supreme Court of Spain had dismissed the appeal of one of the witnesses and the complaint of the second, who had acquiesced in the dismissal.
The complaint
The complainant argues that the Investigation Division of the Paris Court of Appeal and the Court of Cassation violated article 15 of the Convention by allowing the execution of a European arrest warrant issued on the basis of statements made by two persons who claimed that they had been tortured, despite the finding by the European Court of Human Rights that, in one of the two cases involving those persons, Spain had been in breach of article 3 of the European Convention on Human Rights.
The complainant maintains that, for two reasons, article 15 cannot be binding solely on the Spanish authorities. The first is that the article does not apply only to procedures initiated in the State in which the acts of torture were committed or reported. The second has to do with the Spanish authorities’ inaction in response to the many recommendations by various human rights organizations on eradicating torture in Spanish police stations.
The complainant emphasizes that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,9 the Human Rights Committee10 and the Committee against Torture have expressed concern and made a number of recommendations about incommunicado detention. In its concluding observations on the fifth periodic report of Spain, the Committee against Torture reiterated “its concern — shared by all relevant regional and international human rights bodies — that the system of incommunicado detention used by the State party for offences involving terrorists or armed gangs, which may last for up to 13 days, undermines the guarantees of the rule of law in respect of ill-treatment and acts of torture”. 11
In this context, Ms. Etxebarria Caballero’s statements must be declared invalid and cannot be used in any proceedings. The complainant asks the Committee to find that there was a violation and requests compensation in the amount of €6,500 for damages resulting from the decisions of the French courts. He also asks that due consideration be given to the effects of this finding as it relates to the European warrant for his arrest.
State party’s observations on admissibility
On 22 June 2015, the State party contested the admissibility of the complaint. It sets out to show that the communication is inadmissible under article 22 (5) (a) of the Convention on grounds of international lis alibi pendens, given that, on 20 February 2015, the complainant submitted an application to the European Court of Human Rights, which was found inadmissible on 16 April 2015.
Complainant’s comments on the State party’s observations on admissibility
In his comments of 7 September 2015, the complainant rejects the State party’s assertion that the same case was heard by the European Court of Human Rights. The complainant submits a copy of his application to that Court, which involved a different matter — namely, the unreasonable length of time that it took to try him in France. The complainant reiterates that the matter before the Committee has not been examined under another procedure of international investigation or settlement.
State party’s observations on the merits
On 26 October 2015, the State party submitted its observations on the merits of the complaint.
Article 695-11 of the Code of Criminal Procedure, the set of laws regulating the execution of European arrest warrants, states that such warrants are the expressions of a judicial decision issued by a State member of the European Union, referred to as the issuing member State, with a view to the arrest and surrender by another member State, referred to as the executing member State, of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. Preambular paragraph 10 of the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States states: “The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6 (1) of the Treaty on European Union, determined by the Council.”12 In addition, preambular paragraph 13 states that “no person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”. The Framework Decision includes an exhaustive list of the grounds for non-execution of the warrant. To ensure that there are no obstacles to the use of this judicial cooperation method, which relies on the principle of mutual recognition, the Court of Justice of the European Union has asserted that member States may refuse to execute a European arrest warrant only on the grounds for refusal set out in the Framework Decision.
- Article 6 (1) of the Treaty on European Union states: “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.” ↩
The State party refers to the jurisprudence of the Court of Cassation, which has stated that respect for fundamental rights may justify a refusal to execute a European arrest warrant, even in circumstances other than those exhaustively listed in the Framework Decision. In a case similar to this one, in which the petitioner, suspected of having committed terrorist acts in Spain, objected to the execution of the European arrest warrant issued by the Spanish judicial authorities on the grounds that the charges against him were based on statements taken by the Spanish Civil Guard in violation of articles 3 and 6 of the European Convention on Human Rights, the Criminal Division of the Court of Cassation found as follows: “It is indisputable that, if it is established that in breach of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, confessions or accusations have been obtained through torture, this violation of fundamental rights takes precedence over the principles of mutual recognition and trust and stands in the way of the execution of a European arrest warrant.”13 The Court of Cassation nonetheless ascertains that the claims made by the petitioner are not mere allegations.
- Court of Cassation, Criminal Division (No. 14-83.138), 20 May 2014, Bulletin criminel 2014, No. 135 (available on line at: www.legifrance.gouv.fr). ↩
The State party also refers to the Committee’s jurisprudence. In the G.K. v. Switzerland case, for example, the Committee found that “for the prohibition in article 15 to apply, it is required that the statement invoked as evidence ‘is established to have been made as a result of torture’”.14 In the present case, and in accordance with the Committee’s jurisprudence regarding article 15 of the Convention, the Investigation Division of the Paris Court of Appeal examined the allegations of torture made by the complainant. The State party notes that, in its ruling of 2 April 2014, the Investigation Division decided to defer its decision on handing the complainant over to the Spanish judicial authorities “pending a final decision by the latter, under Spanish law, to put an end to the criminal proceedings”. Only after checking the action taken by the Spanish judicial authorities in follow-up to the complaints lodged by the two witnesses who had implicated the complainant and finding that the resulting investigations had led to dismissals did the Investigation Division rule that the complainant’s claims had no basis and were mere allegations.
- See G.K. v. Switzerland (CAT/C/30/D/219/2002), para. 6.11. ↩
The State party notes that the Investigation Division also touched on the high level of confidence among the States parties to the European arrest warrant mechanism and the accession of Spain to the European Convention on Human Rights and the Convention against Torture, circumstances that precluded it from concluding out of hand that “the Spanish legal system … does not offer real guarantees that complaints of torture or inhuman or degrading treatment will be investigated independently, impartially and thoroughly”.
The State party is of the view that the complainant is wrong to criticize the Investigation Division’s failure to take into account the judgment handed down by the European Court of Human Rights following the application submitted by Ms. Etxebarria Caballero — news of which was conveyed in a note transmitted by the complainant’s counsel as his case was being considered — first, because the judges were under no obligation to mention the existence of a note of that kind, transmitted after the hearing, and, second and most importantly, because the judgment handed down by the European Court of Human Rights concluded that there had been no substantive violation of article 3 of the European Convention on Human Rights and thus did not call into question the decision made by the Spanish judicial authorities. Although Spain was found to have committed a procedural violation of article 3, the Court held, in respect of the substantive aspect of article 3, that the evidence before it did not allow it to establish beyond reasonable doubt that the complainant had been subjected to treatment that had attained a threshold of severity, in breach of article 3 of the Convention.15
- See European Court of Human Rights, Etxebarria Caballero v. Spain, para. 58. ↩
Both the Investigation Division of the Paris Court of Appeal and the Court of Cassation have therefore fulfilled their obligations, as set forth in article 15, to ensure that no statement made as a result of torture has been invoked as evidence.
The State party notes that, although the complainant bears the burden of proof, he has not provided evidence of the truth of his allegations. The mere fact that the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment have highlighted the inadequacy of some investigations carried out in Spain does not prove that the Spanish system fails to offer real guarantees that complaints of torture or inhuman or degrading treatment will be investigated independently, impartially and thoroughly. The State party contends that, most importantly, those circumstances in no way prove that the two persons who implicated the complainant during the Spanish judicial investigation were personally subjected to torture. That was the reason, moreover, for the ruling of the European Court of Human Rights that, despite the inadequacy of the investigation, the available evidence did not allow it to establish beyond reasonable doubt that the complainant had been subjected to treatment that had attained a threshold of severity.
Insofar as the mechanism of the European arrest warrant is based on a high level of confidence among member States, the complainant’s allegations alone, unsubstantiated by any evidence, could not, in the State party’s view, justify a refusal by the French courts to execute the European arrest warrant.
Complainant’s comments on the State party’s observations on the merits
The complainant responded to the State party’s observations on the merits in a letter dated 11 December 2015.
The complainant concedes that the person who alleges a violation bears the burden of proving it but stresses that judges nevertheless have an obligation to ascertain whether or not a statement at issue has been obtained under torture. In support of his argument, the complainant refers to the jurisprudence of the Committee, which is of the view that the proscription in article 15 of the invocation of statements based on torture “is a function of the absolute nature of the prohibition of torture and it implies an obligation for States parties to ascertain whether or not statements admitted as evidence in any proceedings for which it has jurisdiction have been made as a result of torture”.16
- See Rasim Bairamov v. Kazakhstan (CAT/C/52/D/497/2012), para. 8.10. ↩
The complainant maintains that, notwithstanding the State party’s view that the deferral by the Investigation Division of the Paris Court of Appeal of a decision pending the outcome of the proceedings initiated after the submission of the complaint by Mr. Zapirain Romano constituted a fulfilment of that obligation, the Court should not have based its judgment on decisions made by the Spanish judicial authorities, as it had sufficient evidence of the shortcomings of their investigation of complaints of torture in general and of the complaint submitted by Ms. Etxebarria Caballero in particular. The complainant refers in particular to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which he had provided to the Court.17
- “Report to the Spanish Government on the visit to Spain”. ↩
In addition, according to the complainant, the Paris Court of Appeal did not wait for the outcome of the complaint submitted by Ms. Etxebarria Caballero to the European Court of Human Rights before it ruled on how to respond to the European arrest warrant. He adds that, although the Court of Appeal was not required to mention the note informing it that the European Court of Human Rights had found that Spain had committed a procedural violation of article 3, it could and should have done so. The complainant notes that, while the European Court was not in a position to find a substantive violation of article 3, its judgment continues: “In this respect, [the Court] wishes to stress that this impossibility is in large part the result of the national authorities’ failure to carry out a thorough and effective investigation of the complaint of ill-treatment submitted by the applicant, a failure for which it has found that a procedural violation of article 3 of the [European] Convention [on Human Rights] has been committed.”18 With regard to the observations of the Court of Appeal that Spain is a party to the European Convention on Human Rights and the Convention against Torture, the complainant notes that the Committee has stated that “in assessing the risk of torture to which an individual would be exposed in the context of extradition or deportation proceedings, a State cannot base itself solely on the fact that another State is a party to the Convention against Torture, or that it has provided diplomatic assurances”.19
Lastly, the complainant believes that demanding of him more than he has already shown would require him to meet an impossible burden of proof and render meaningless the assertion that the broad scope of the proscription contained in article 15 of the Convention is a function of the absolute nature of the prohibition of torture.20 Since the Committee has repeatedly noted the inaction of the Spanish authorities in response to the recommendations that they have been given about safeguarding human rights in their efforts to combat terrorism, the complainant is of the view that only by shifting the burden of proof — that is, by having the State concerned prove that it has taken every step necessary to ensure the safety of individuals — would it be possible, in circumstances such as his, to ensure that the rights of individuals in respect of the prohibition of torture were effectively protected.
- See Rasim Bairamov v. Kazakhstan, para. 8.10. ↩
Additional observations by the complainant
On 5 April and 24 May 2016, the complainant informed the Committee that, on 12 February 2015, the Spanish National High Court had requested that he be surrendered temporarily, for three months, so that it could continue investigating the case and see the ongoing proceedings through to their conclusion. The applicant objected to this temporary surrender, arguing, inter alia, that the Committee was considering the compatibility of the surrender with article 15 of the Convention and that his temporary surrender would interfere with his right to a fair trial, since he had appealed his conviction in France and the surrender could prevent him from preparing his case. By a decision handed down on 17 February 2016, the Paris Court of Appeal authorized the temporary surrender of the complainant to the Spanish authorities for a period of three months. The Court was of the view that it had already ruled on the complainant’s first objection. As for his second objection, the Court concluded that his departure for Spain and his three-month stay there would not disrupt the preparation of his case, as it would take at least a year for his appeal before the Court of Assize to be heard.
The complainant was handed over to the Spanish authorities on 8 March 2016. The National High Court subsequently asked the French authorities for a four-month extension of the surrender.
Consideration of admissibility
Before considering any claims contained in a complaint, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention.
The Committee has taken note of the State party’s observation that, on 20 February 2015, the complainant had lodged an application with the European Court of Human Rights, which was found inadmissible on 16 April 2015. However, the Committee also takes note of the information, provided by the complainant, that the application that he lodged with the European Court of Human Rights concerned a matter different from the one before the Committee, namely the duration of the criminal proceedings in France for offences other than those for which he was prosecuted in Spain. Accordingly, the Committee considers that it is not precluded from considering the communication by article 22 (5) (a) of the Convention.
The Committee also notes that the State party has not objected to the admissibility of the communication on the grounds that domestic remedies have not been exhausted. All admissibility criteria having been met, the Committee finds the communication admissible and proceeds to its consideration on the merits.
Consideration of the merits
The Committee notes the complainant’s allegations about the circumstances in which Ms. Beatriz Etxebarria Caballero’s and Mr. Íñigo Zapirain Romano’s statements were made, the evidence he adduced for his allegations and the arguments put forward by the parties on the obligations of States parties under article 15 of the Convention.
The Committee notes that, under that article, the State party must ensure that no statement that is established to have been made as a result of torture is invoked as evidence in any proceedings. In addition, the Committee recalls its jurisprudence, according to which the generality of the provisions of article 15 derive from the absolute nature of the prohibition of torture and imply, consequently, an obligation for each State party to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture.21 In this case, the Committee notes that the statements at issue constitute part of the evidence of the procedure for the surrender of the complainant to the Spanish authorities on the basis of a European arrest warrant, for which the State party is competent. The State party therefore had the obligation to ascertain the veracity of the complainant’s allegations.
- See P.E. v. France (CAT/C/29/D/193/2001), para. 6.3. ↩
In this regard, the Committee notes that the Investigation Division of the Paris Court of Appeal made a final decision in the case concerning the European warrant that Spain had issued for the complainant’s arrest only after having been informed that the investigations the Spanish authorities conducted into the complaints of torture submitted by the persons referred to above had culminated in a dismissal. As that final decision was made on 12 November 2014, after the date of the judgment of the European Court of Human Rights, which was handed down on 7 October 2014, it cannot be shown that the Court of Appeal failed to take that judgment into account in its decision, especially since the judgment was conveyed in a note to the Court of Appeal by the complainant’s lawyer during the proceedings. The Committee considers that the State party cannot be required to conduct a direct investigation into the allegations of torture made by Ms. Etxebarria Caballero and Mr. Zapirain Romano, as such an investigation would be outside its jurisdiction. In addition, the Committee notes that the Court of Appeal also considered the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which were submitted by the complainant and in which the inadequacy of some investigations conducted in Spain was emphasized. The Court of Appeal did not, however, view those reports as sufficient grounds to conclude that the two persons in question were personally subjected to torture.
In this case, and on the basis of the evidence submitted to it, the Committee cannot conclude that the internal procedure was characterized by a manifestly arbitrary procedure or a denial of justice. Accordingly, the Committee is of the view that the evidence that has been submitted to it does not make it possible to establish that there has been a violation of article 15 of the Convention.
The Committee against Torture, acting under article 22 (7) of the Convention, therefore concludes that the State party’s surrender of the complainant to the Spanish authorities does not constitute a breach of article 15 of the Convention.