The complainant is Raúl Ángel Fuentes Villota, a national of Spain born in 1966. The complainant claims to be the victim of a violation by the State Party of articles 1, 2 (1) and 12, read alone and in conjunction with articles 4, 13 and 14 of the Convention. The State Party has made the declaration pursuant to article 22 of the Convention, effective from 21 November 1987. The complainant is represented by counsel.
Facts as submitted by the complainant
On 6 June 1991, at around 3 a.m., the complainant was arrested, together with two other individuals, by officers of the National Police for alleged collaboration with the Basque independence organization Euskadi Ta Askatasuna (ETA). The complainant was informed of his rights at 3.30 a.m. and was immediately placed in incommunicado detention, where he remained for four days. The same day, the Central Court for Preliminary Criminal Proceedings No. 5 of the National High Court in Madrid confirmed the measure in an order, of which the complainant was notified at 1.30 p.m. At around 2 p.m. that day, the complainant was taken outside the Bilbao police station. According to police documentation, this was done for the purpose of “locating a safe house”. During this first outing, the complainant was beaten and subjected to death threats and a mock execution in which he was forced to dig a hole for his burial. The complainant returned to the police holding cells on the same day, at 2.55 p.m. At 5 p.m., a forensic doctor gave an expert report about the complainant before the investigating judge, in which she stated, among other things, that the complainant’s trousers and sweater were mud-stained, that he reported being slapped and kicked and having pencils pressed into the interdigital folds of his left hand and that he had a contusion on the abdomen from being punched. Among her findings, she mentioned raised abrasions on the face, reddening on the neck, localized warmth and reddening of the interdigital fold of the fourth finger on the left hand and a reference by the complainant to abnormal sensation in that finger. At 9.20 p.m. that day, the complainant made a first statement to police and was assisted by a court-appointed lawyer.
On 7 June 1991 at 8.30 p.m., the complainant was again examined by a forensic doctor. According to the report, the complainant reported having received blows to the back of the head since the last examination; however, no external signs of injury were observed in this area. In addition, there was reddening on both wrists from the handcuffs, and the complainant mentioned abnormal sensation in the first and fourth fingers of the left hand, although he showed no signs of inflammation.
On 8 June 1991 at 6.30 a.m., the complainant made a second statement to police, with assistance from a court-appointed lawyer. At 8 p.m. on the same day, a forensic doctor drew up a third report, stating, among other information, that the complainant had mentioned not having been physically abused since the last forensic examination but still having abnormal sensation in the first and fourth fingers of the left hand, with no signs of inflammation.
On 9 June 1991, a new report was drawn up by a forensic doctor, stating that the complainant had mentioned abnormal sensation in the first and fourth fingers and pain when pressing the extensor tendon of the right thumb. On 10 June 1991, another report was drawn up by a forensic doctor, stating, inter alia, that the complainant had mentioned abnormal sensation in the first and fourth fingers of the left hand.
The complainant was brought before a judge on the morning of 10 June 1991, and the Central Court for Preliminary Criminal Proceedings No. 5 issued an order lifting the incommunicado detention, which had lasted four days. Before the court, the complainant claimed that the content of his statement to police was nothing more than what the officers had forced him to say during his detention, as he had been beaten until he made the first statement, as well as afterwards, until he made the second statement. He claimed, among other things, that he had been slapped and punched by several officers and that, during the first interrogation, they had put pencils between his fingers and pressed them together, causing him considerable pain and leaving his thumb and ring finger numb.
In a petition dated 25 June 1991, the defence for the complainant and the other individuals arrested during the same police operation requested that their statements to police and the court be invalidated because the complainant and other detainees had been interrogated many times by the police, without any record of the interrogations or legal assistance and with several unidentified police officers present, and the detainees had been, in several instances, subjected to ill-treatment and torture. On 20 September 1991, the Central Court for Preliminary Criminal Proceedings No. 5 rejected the request. The investigating judge did not order an investigation and merely stated that the statements had been made in keeping with established legal safeguards. The complainant did not appeal the decision of the investigating judge.
The complainant was remanded in custody on 10 June 1991. After two years, the detention was extended. On 9 June 1995, being of the view that the maximum legal period of pretrial detention had elapsed, the National High Court ordered that the complainant be provisionally released and that he appear daily at the duty court or police station nearest to his home and expressly forbade him to leave the territory of the State Party.
On 5 September 1995, the National High Court determined that the complainant had failed to comply with his daily reporting obligations since July 1995 and ordered him remanded in custody. A few days later, the complainant was declared in default.
The complainant’s whereabouts remained unknown until he was located in the United Kingdom of Great Britain and Northern Ireland in 2012 following the issuance of a European arrest warrant. In his statement before the judge at Westminster Magistrate’s Court, the complainant said that, during the first interrogation, he was hit from behind every time he gave an answer that displeased the police officers. He was slapped and occasionally hit with a softcover book on the back of the head. An officer put three pencils between his fingers and said that if he did not tell him what he wanted to know, he would squeeze his fingers to hurt him. The complainant stated that there was no structure to his time at the police station: he was interrogated at all hours of the day and night and had no notion of what time of day or night it was. He also stated that one day he was taken by car to a place near the city where they ordered him to dig a hole in a coniferous forest, then started asking him questions and telling him they would kill him and make him disappear. He said that they took pictures of him by the hole and, while he was handcuffed and restrained, they placed a gun in his hand and made him fire it. He also stated that they beat him regularly, repeated the torture involving pencils between his fingers and threatened to hurt his family and girlfriend. On one occasion, they put out a cigarette in the wound on his forehead, but after he signed the second statement, everything stopped. His surrender to the State Party was accepted by the Westminster Magistrate’s Court in 2013, a decision upheld by the Royal Court of Justice in 2014.
The complainant was surrendered to and imprisoned in the State Party in August 2014 and, on 5 December 2014, he was convicted by the National High Court of the offences of commission of an attack, possession of explosives, illegal possession of weapons and membership in an armed gang.3 The complainant is currently deprived of liberty. The judgment also contained a separate opinion enumerating the various pieces of evidence supporting the complainant’s claim of torture and ill-treatment. Despite how much time had gone by, the separate opinion noted that the complainant’s statement before the court in the State Party following his surrender was virtually identical to the statement he made in the United Kingdom.
- The complainant was sentenced as follows: for an attempted attack against a member of the State security forces, in combination with attempted murder, to 20 years’ imprisonment and disqualification, including full disqualification for the duration of the sentence; for the offence of membership in an armed gang, to 8 years’ imprisonment, a fine of 750,000 pesetas and suspension of the right to hold public office and to vote for the duration of the sentence; for possession of explosives, to 12 years’ imprisonment and suspension of the right to hold public office and to vote for the duration of the sentence; and for illegal possession of weapons, to 10 years and 1 day’s imprisonment and suspension of the right to hold public office and to vote for the duration of the sentence. ↩
On 25 April 2018, the complainant filed a complaint with the Court for Preliminary Criminal Proceedings No. 9 of Bilbao against the National Police officers whom he alleges tortured him when he was arrested in 1991. On 6 July 2018, the Court closed the case without conducting an investigation into the complainant’s allegations on the grounds that the statute of limitations for the offence of torture had expired. On 16 July 2018, the complainant appealed the decision, which was upheld by order of the High Court of Bizkaia of 11 December 2018. On 1 February 2019, the complainant filed an application for amparo with the Constitutional Court, requesting recognition of the violation of his right to an effective judicial remedy in relation to his right to physical and psychological integrity and his right not to be subjected to torture or inhuman or degrading treatment. On 4 June 2019, the Constitutional Court rejected the application.
The formal investigation conducted by the Basque Criminology Institute of the University of the Basque Country established that the complainant’s account was credible.
Complaint
The complainant alleges that the State Party has violated his rights under articles 1, 2 (1) and 12, read alone and in conjunction with articles 4, 13 and 14 of the Convention.
With regard to article 2, read in conjunction with article 1 of the Convention, the complainant states that he was tortured in 1991 by unidentified officers of the National Police belonging to the provincial force of Bilbao. The torture consisted of intentional acts and was designed to obtain information and a confession from the complainant. The complainant has given consistent and detailed statements, and the reports by forensic doctors to judges show that the ill-treatment began after his arrest and ceased once he had made self-incriminating statements under interrogation by police. The complainant’s statements match the claims made by the other individuals arrested in the same operation and who had had no contact with each other, which illustrates that the State Party’s legal framework allows for acts such as those described to be committed against members or alleged members of the terrorist group ETA specifically. That there was sufficient evidence to establish the alleged facts was also noted by the National High Court judge in his dissenting opinion of 2014, and the credibility of the complainant’s statements was confirmed by a report prepared on behalf of the Basque Criminology Institute of the University of the Basque Country. The Spanish authorities did not take any measures to prevent the acts of torture to which the complainant was subjected.
Regarding article 12, read in conjunction with articles 4, 13 and 14 of the Convention, the complainant submits that none of the allegations of ill-treatment and torture he made have been examined. He reported at several points in the proceedings that he was being subjected to torture and other ill-treatment, but the judicial authorities ignored his allegations and did not take into account the additional duty to investigate arising from the fact that he was being held incommunicado, despite the forensic medical reports and accounts of the individuals detained in the same circumstances. Subsequently, after being recaptured in the United Kingdom, the complainant again recounted the torture and ill-treatment he suffered before a British judge and filed a complaint in the State Party on 25 April 2018.
The complainant submits that comprehensive redress has not been possible in his case because his 2018 criminal complaint of torture was dismissed without his allegations being investigated and his application for amparo was rejected on 4 June 2019 by the Constitutional Court for a supposed lack of constitutional significance. The complainant argues that the State Party has an obligation to provide redress not only for remedial and restorative purposes, but also for transformative reasons. The complainant also argues that the State Party has an obligation to ensure that victims obtain fair and appropriate redress commensurate with the gravity of the rights violation and of the severity of the harm suffered. The State Party is also under an obligation to take the measures necessary to ensure that such acts are not repeated.4
- The complainant refers to Dimitrijevic v. Serbia and Montenegro (CAT/C/35/D/172/2000), para. 7.4. ↩
The complainant claims that the State Party’s unwillingness to investigate acts of torture committed against members or alleged members of ETA has resulted in impunity. There is also institutional impunity insofar as the definition of the offence of torture under Spanish criminal law provides for a statute of limitations. The legal framework promotes impunity, the commission of torture and the failure to prosecute those responsible. The complainant notes that international organizations have for decades been pointing to a system that encourages members of the State Party’s police force to commit ill-treatment and acts of torture, particularly against persons detained in the context of counter-terrorism operations in the Basque Country, and to a failure to effectively investigate allegations of torture against individuals linked to ETA.5 The practice of torture in the context of the fight against terrorism has also been recognized by individuals who have actively participated in judicial proceedings.6 The exact method of torture used against the complainant, consisting of torture applied to the fingers with hexagonal-shaped pencils or pens, has been used for years, especially by police officers at police stations in Bilbao, San Sebastián and Madrid.7
- The complainant refers to Urra Guridi v. Spain (CAT/C/34/D/212/2002); CAT/C/CR/29/3, paras. 7 and 8; CAT/C/ESP/CO/5, para. 13; CCPR/C/79/Add.61, para. 10; Human Rights Committee, Achabal Puertas v. Spain (CCPR/C/107/D/1945/2010); E/CN.4/2004/56/Add.2; A/HRC/10/3/Add.2, paras. 62 and 63; the report on the visit to Spain by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf (2003) 22), para. 6; and the report on the visit to Spain by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf (2011) 11). ↩
- The complainant refers to statements made by a former director of the Civil Guard in an interview published in the newspaper El País on 17 November 2013, p. 14, by a former investigating judge in an interview published in the newspaper Público on 27 June 2015 and by an investigating judge in an article published in the newspaper Gara on 15 April 2016. ↩
- The complainant refers to Basque Criminology Institute, Study of torture and ill-treatment in the Basque Country 1960–2014, December 2017. According to the complainant, his is one of the over 5,000 cases of torture that the Institute was able to verify. ↩
State Party’s observations on admissibility and the merits
In its observations of 22 November 2022, the State Party argues that the complainant deliberately omitted the circumstances of his arrest. At 3 a.m. on 6 June 1991, the complainant, as a member of the ETA cell known as Matalaz, was preparing to place a limpet bomb on the family car of a member of the State security forces with the aim of indiscriminately murdering anyone who got into the car the following morning. The complainant, together with the two other members of the ETA cell, fired shots as they fled the scene and had to be subdued and disarmed by members of the State security forces. Later that same day, by order of the investigating judge of the National High Court, he underwent a forensic examination. The investigating judge noted that the complainant had to be subdued, resulting in minor scratches and bruises, but did not appear to have been injured. These minor scratches and bruises were noted in the first forensic report but not in any of the subsequent reports. The complainant only made the allegation of torture together with the rest of the detainees in a petition of 25 June 1991, in which he mentioned the torture merely as an argument in support of his main request to have his statements invalidated. The Public Prosecution Service dismissed the notion that there had been ill-treatment, and the petition was rejected by decision of the courts. The complainant did not file an investigation request with regard to the alleged ill-treatment or appeal the above-mentioned decision.
The State Party argues that the complainant omitted the fact that the judgment of the National High Court of 2014 contains a lengthy analysis of the torture allegation. The judgment notes the circumstances of the arrest, the allegation of torture raised at trial, the evidence adduced by all the forensic doctors and the conclusions reached once they had all been heard. According to the judgment, the more serious assaults that the complainant told the forensic doctors about were not borne out. No signs of the blows allegedly received to the head and abdomen were found during the successive examinations; the abrasions on the face and neck could have been caused by rubbing against the ground at the time of arrest, while those on the wrists were, according to the forensic doctors, consistent with chafing from handcuffs. Furthermore, the injuries on the complainant’s face had already been observed by the police doctor when the complainant arrived at the police station shortly after his arrest. As for the ill-treatment consisting in pressing pencils between the fingers, all the forensic medical reports note that the complainant mentioned abnormal sensation in his fingers. The State Party argues that this is a subjective symptom, as can be inferred from the repeated use of the term “refers” in the reports and as was clarified by the doctors at trial. This symptom was already mentioned to the doctor who examined him shortly after arrest. Of all the forensic doctors who examined the complainant, only one was able to confirm traces consistent with the manner of assault described; the others reported not having detected any signs during their respective examinations. In a plenary hearing, the forensic doctors determined that the increased temperature and reddening of the interdigital fold could be due to causes other than those invoked by the complainant, specifically, friction from a ring, given that the symptoms were on the ring finger and that one of the forensic doctors had repeatedly expressed the view that the abnormal sensation described by the complainant was due to excessive pressure on the wrists from the handcuffs. Of the other individuals arrested alongside the complainant in 1991, one did not allege torture or ill-treatment, while torture or ill-treatment could not be verified in the other case.
The complainant filed an appeal in cassation of the 2014 judgment, alleging torture for the sole purpose of having his statement to police invalidated, which, in any event, had not been necessary in order to convict him. The complainant has not exhausted domestic remedies, as he did not file an application for amparo against the 2015 dismissal of his appeal in cassation.
The State Party argues that the complainant did not request an investigation into the alleged acts of torture and ill-treatment in 1991 or in 2014 and has not exhausted domestic judicial remedies in those cases. It was not until 2018 that the complainant first filed a petition requesting an investigation into the events of 6 June 1991.
The State Party claims that the communication should be declared inadmissible on the grounds that it is an abuse of the right of submission since domestic remedies have not been exhausted8 and that considering it after such an extremely long time has elapsed would pose difficulties for the Committee and the State Party.9 The complainant did not request an investigation into the alleged torture in 1991, even though ill-treatment was one of the arguments raised in the petition of 25 June 1991 for his police statement to be invalidated. In any event, the complainant did not exhaust domestic remedies in 1991.10 In 2014, the complainant raised the alleged torture only in the oral proceedings and during the appeal in cassation; however, the purpose was the same in both cases, namely, to have his statement to the court invalidated. He did not request an investigation of the facts, nor did he exhaust the prior judicial remedy, as he did not file an application for amparo with the Constitutional Court. The fact that the complainant did not raise his alleged torture in 1991 in a judicial process until 2018 reflects unlawful behaviour.
The State Party submits, in the alternative, that the communication should be dismissed on the merits. The alleged violations cannot be considered to have occurred when account is taken of the circumstances of the complainant’s arrest, namely that he was intending to commit an attack. The 2014 judgment contains a complete analysis of the complainant’s allegations, with the involvement of all the forensic doctors. To prevent a terrorist attack, and since he put up resistance by shooting at members of the State security forces, the complainant had to be subdued. Under article 1 of the Convention, torture is not considered to have been committed when the pain or suffering arises only from or is inherent in or incidental to lawful sanctions.
Complainant’s comments on the State Party’s observations on admissibility and the merits
In his comments of 6 March 2023, the complainant points out that article 13 of the Convention does not require that a complaint of torture be duly lodged or that the victim make a statement of intent to bring and sustain a criminal action.11 The complainant reiterates that he reported the facts to the authorities on at least the following occasions: (a) on 6 June 1991, at 5 p.m., to a forensic doctor, to whom he reported the abuse suffered at the hands of the police officers, in particular the blows to the head and abdomen and the pain caused by the use of a pencil between his fingers; the report of this examination was transmitted to the investigating judge overseeing the case against the complainant; (b) on 10 June 1991, during his appearance before the investigating judge, he reported that he had been beaten by the police until he “confessed” and refused, for this reason, to continue testifying. In response to the judge’s follow-up questions, the complainant explained that during the first interrogation, pencils had been inserted between his fingers which had then been pressed against each other, causing great pain. He also said that his thumb and ring finger had been “asleep”; and (c) on 25 June 1991, in a petition by the complainant’s counsel to the investigating judge, in which the torture was reported and a request was made to invalidate the “confession” obtained during incommunicado detention.
- Blanco Abad v. Spain (CAT/C/20/D/59/1996), para. 8.6. ↩
The complainant argues that he made the allegations of torture to the criminal judicial authorities immediately, providing a consistent and detailed account on the following occasions: (a) following his arrest in the United Kingdom in 2012, he repeated before the British courts his detailed statements regarding the torture he had suffered; (b) following his extradition, he reported the torture at his trial before the National High Court in 2014 and in the context of the appeal he filed with the Supreme Court in 2015; and (c) after all these procedures failed, he sought the last remedy available to obtain recognition and redress and filed a formal complaint with the Court for Preliminary Criminal Proceedings No. 9 of Bilbao in 2018. In the light of the above and the inaction of the Spanish authorities despite their being duly informed of the events on several occasions, submitting a communication to the Committee cannot be interpreted as an inappropriate use of complaint procedures.
Regarding the criminal complaint of torture filed with the Court for Preliminary Criminal Proceedings No. 9 of Bilbao in 2018, the complainant notes that he subsequently lodged an appeal with the High Court of Bizkaia against the decision of inadmissibility, then with the Constitutional Court, thus exhausting domestic remedies. The complainant acknowledges that he did not lodge an appeal with the Constitutional Court concerning the 2015 decision of the Supreme Court. However, the purpose of that case was to establish the complainant’s guilt in relation to the actions leading to his arrest, not to establish criminal responsibility for the torture to which he was subjected or to grant him any form of redress; therefore, it was not a substitute for a criminal investigation into the actions he had reported. Moreover, it should not be considered an effective remedy for the complaints raised in the present communication. First, the 2015 Supreme Court judgment shows that the Court considered that the complainant’s guilt had been established independently of the statements allegedly obtained under torture and did not rule on whether torture had been committed. An appeal against this judgment would not have resulted in the examination of the complaints raised in the present communication because being guilty of an offence does not deprive the complainant of his right to recognition and redress for the torture he suffered. Secondly, even if the complainant had considered formally appealing his conviction before the Constitutional Court, this legal action was highly unlikely to enable him to obtain recognition and redress for the violation of his rights.12
- While he does not provide any specific references, the complainant claims that the European Court of Human Rights, the Committee against Torture and the Human Rights Committee have, in recent years, made a considerable number of findings of violations by the State Party of its international obligations regarding the prevention of torture. According to the complainant, all of these cases were previously brought before the Constitutional Court of Spain, which systematically refused to acknowledge that torture is being committed in Spain and that perpetrators enjoy systemic impunity. ↩
The complainant reiterates that the Constitutional Court’s decision of inadmissibility, which marked the exhaustion of domestic remedies, is dated 4 June 2019, in other words, approximately a year before the submission of the present communication to the Committee. This period cannot be considered to be extremely long. The time that elapsed between the acts and the submission of the communication to the Committee can be explained by the particular circumstances of the case. The complainant’s first attempts to report the torture in 1991 were unsuccessful. After being released from prison in 1995, the complainant fled the country and lived clandestinely in the United Kingdom until his arrest in 2012. In these circumstances, the complainant could not file a complaint without risking divulging his place of residence and exposing himself to extradition and a criminal conviction. After being located, the complainant immediately reiterated his complaint of torture during the British extradition proceedings in 2013 and 2014 and, subsequently, during the criminal proceedings against him in the State Party in 2014 and 2015; he eventually filed a formal complaint of torture in 2018. The State Party does not explain why the time that has elapsed would make it impossible for the Committee and the State Party to examine the facts. Moreover, this argument is contradicted by the State Party’s assertion that the complainant’s allegations of torture were examined in detail by the National High Court in 2014. In addition, the complaint raises the matter of the coherence of the statute of limitations argument invoked by the Spanish authorities in refusing to investigate the allegation of torture. The fact that this issue was considered necessarily implies that a significant period of time had elapsed between the events and the complaint to the competent authorities.
The complainant reiterates that the acts took place in a context in which thousands of cases of torture have been documented and United Nations bodies and experts, as well as international courts, have regularly recognized a lack of effective investigation by the Spanish authorities; the State Party has not challenged these assessments.13
- Blanco Abad v. Spain, para. 4.3; Gallastegi Sodupe v. Spain (CAT/C/48/D/453/2011), para. 2.4; CAT/C/ESP/CO/6; Achabal Puertas v. Spain; European Court of Human Rights, San Argimiro Isasa v. Spain, application No. 2507/07, judgment of 28 September 2010; European Court of Human Rights, Etxebarria Caballero v. Spain, application No. 74016/12, judgment of 7 October 2014; European Court of Human Rights, Ataun Rojo v. Spain, application No. 3344/13, judgment of 7 October 2014. See also Dimitrijevic v. Serbia and Montenegro. ↩
The complainant notes that the State Party completely ignored the issue of the statute of limitations. The State Party did not present any argument in an attempt to demonstrate that the reasoning of the Constitutional Court in confirming the refusal to investigate acts of torture on the basis of national laws on statutes of limitations is compatible with the Convention.
Consideration of admissibility
Before considering any claim submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes the State Party’s argument that the complainant has not exhausted domestic remedies, as he did not file an application for amparo in relation to the Supreme Court’s dismissal in 2015 of his appeal in cassation against the 2014 judgment of the National High Court. The Committee also notes the complainant’s claim that the 2015 Supreme Court judgment is silent on whether he was tortured. The Committee further notes that the purpose of prosecuting the complainant was to establish his guilt for the actions leading to his arrest, not to investigate the acts of torture committed against him. In the light of the information provided by the parties, the Committee is of the view that the remedy of amparo in the judicial proceedings against the complainant cannot be considered effective for the purposes of the complainant’s complaints before the Committee. Given that the State Party has not contested the complainant’s claim that he has exhausted domestic remedies in the judicial proceedings that began with his complaint of torture in 2018 and ended with the Constitutional Court’s decision in 2019, the Committee concludes that the complainant has exhausted all domestic remedies available to him.
The Committee notes the State Party’s claim that an extremely long time has elapsed since the alleged events and that this poses difficulties for both the Committee and the State Party in the consideration of the communication. The Committee also notes the State Party’s argument that the complainant did not request an investigation into the alleged torture either in 1991 or in 2014. The Committee further notes the complainant’s argument that he reported the alleged torture to the authorities at various times and that there are expert medical reports attesting to the injuries. The Committee notes the complainant’s argument that he submitted his communication to the Committee approximately one year after having exhausted domestic remedies and that the length of time between the alleged events and the submission of the communication can be explained by the particular circumstances of the case. The Committee further notes that, although the complainant did not formally request an investigation, he did raise allegations of torture with the State Party as early as 1991 and that the State Party did not initiate an investigation. Given the particular circumstances of the case and the fact that the complainant made allegations of torture to the national authorities on a number of occasions, the Committee is of the view that there are no obstacles to the admissibility of the communication under rule 113 (f) of its rules of procedure.
The Committee notes the complainant’s claim that the State Party has not fulfilled its obligations under articles 2 (1) and 4 of the Convention. However, the Committee considers that the complainant has failed to sufficiently substantiate this claim for the purpose of admissibility and finds it inadmissible under article 22 (2) of the Convention.
However, the Committee considers the complainant’s claims under articles 1, 12 and 13 of the Convention to be sufficiently substantiated for the purpose of admissibility and thus declares them admissible and proceeds to its consideration of the merits. Furthermore, the Committee considers that the complainant’s claims are admissible insofar as they raise issues under article 14, considered in the present case in conjunction with articles 12 and 13 on the procedural aspects of the right to justice and to the truth.14
- Zentveld v. New Zealand (CAT/C/68/D/852/2017), para. 8.8. See also Committee against Torture, general comment No. 3 (2012) on the implementation of article 14 by States parties, paras. 16 and 17. ↩
Consideration of the merits
The Committee has examined the present complaint in the light of all the information submitted to it by the parties, in accordance with article 22 (4) of the Convention.
The Committee must decide, in accordance with article 12 of the Convention, whether there is reasonable ground to believe that the complainant was subjected to torture and, if so, whether the State Party’s authorities complied with their obligation to proceed to a prompt and impartial investigation.15 It is essential that the investigation be prompt, both to prevent the victim from continuing to be subjected to the acts and because, unless the acts have permanent or serious effects, the physical traces of torture generally disappear in a short period of time due to the manner in which it is committed.16
The Committee notes that, over the course of the proceedings, the complainant reported on several occasions having been subjected to torture and other ill-treatment by the authorities during his detention, that his injuries were documented in the medical report drawn up on the day of his arrest (see paras. 2.1, 5.1 and 5.2) but that the national authorities did not initiate an investigation at any point. The Committee notes the State Party’s claims that no signs were found of the alleged blows sustained by the complainant, that the abrasions on the complainant’s face and neck could have been caused by rubbing against the ground at the time of arrest and those on his wrists were consistent with chafing from handcuffs and that the injuries to his face were observed shortly after his arrest, when the complainant was taken to the police station. The Committee also notes the State Party’s claims that the symptoms of the ill-treatment involving the insertion of pencils between the fingers are subjective and that of all the doctors who examined the complainant, only one observed traces consistent with the alleged manner of the assault but stated that they could have a cause other than those mentioned by the complainant. The Committee further notes the State Party’s argument that the alleged violations cannot be considered to have occurred when account is taken of the circumstances of the complainant’s arrest, as he intended to commit an attack, put up armed resistance and had to be subdued. However, the Committee considers that, in the light of the complainant’s allegations and the fact that a forensic doctor observed traces consistent with the alleged manner of the assault, the mere fact that the injuries could have been sustained during arrest is not sufficient, without a prompt and impartial investigation, to exclude the possibility that the complainant may have been a victim of torture.
The Committee considers that, in the light of the acts described by the complainant and allegedly experienced while in incommunicado detention, the medical reports and the fact that the complainant made the allegations of torture on several occasions (see paras. 4.5, 5.1 and 5.2), it can be concluded that there is prima facie evidence of torture, which has not been disputed by the State Party. The Committee notes that the failure to investigate the complainant’s allegations is incompatible with the obligation under article 12 of the Convention to conduct a prompt investigation.
The Committee notes the State Party’s argument, on the one hand, that the complainant did not request an investigation into the alleged acts of torture or ill-treatment in 1991 and 2014 and, on the other hand, that his allegations were examined extensively by the national authorities in the 2014 judgment, which contains, in particular, the evidence adduced by all the forensic doctors and the conclusions reached once they had been heard. The Committee also notes that the State Party does not argue that the complainant’s allegations were examined at any other time. The Committee recalls that article 13 of the Convention does not require either the formal lodging of a complaint of torture under the procedure laid down in national law or an express statement of intent to bring and sustain a criminal case in connection with the offence; it is enough for the victim simply to bring the facts to the attention of an authority of the State for the latter to be obliged to consider it a tacit but unequivocal expression of the victim’s wish that the facts should be promptly and impartially investigated, as prescribed by this article of the Convention.17 The Committee also recalls that criminal investigations into cases of torture or ill-treatment must be aimed at determining the nature and circumstances of the alleged acts, establishing the identity of the persons who may have been involved, providing the victim with adequate reparation and combating impunity for violations of the Convention.18 The Committee notes the complainant’s claim that in the judicial proceedings against him, the Supreme Court ruled that his guilt had been established regardless of the manner in which his statements had been obtained but did not rule on whether the torture had taken place. The Committee considers that, even when account is taken of the State Party’s argument that the examinations by all the forensic doctors were considered during the judicial proceedings in which the complainant was found criminally responsible, neither the information in the case before the Committee nor the State Party’s observations indicate that steps have been taken to conduct a prompt and impartial investigation into the allegations of torture and ill-treatment in order to determine not only the nature and circumstances of the alleged acts, but also the identity of the persons who may have been involved. Given that the complainant reported at various points in the proceedings that he had been subjected to torture and other ill-treatment by the authorities during his detention (see paras. 5.1 and 5.2), the Committee considers that the State Party has failed to comply with its obligation to ensure a prompt and impartial examination in keeping with article 13 of the Convention.
In the light of the foregoing, the Committee notes that the national authorities failed to conduct a prompt and impartial investigation despite the complainant’s allegations of torture and the existence of reasonable grounds to believe that acts of torture were committed. The Committee also notes that the authorities dismissed the complainant’s complaint of torture and ill-treatment on account of the statute of limitations for the offence of torture. The Committee considers that a State Party’s failure to investigate, criminally prosecute, or to allow civil proceedings related to allegations of acts of torture in a prompt manner, may constitute a de facto denial of redress and thus constitute a violation of the State’s obligations under article 14 of the Convention.19 The Committee recalls its concluding observations regarding the seventh periodic report of Spain, according to which “the State Party should ensure that the offence of torture is not subject to any statute of limitations in order to preclude any risk of impunity in relation to the investigation of acts of torture and the prosecution and punishment of perpetrators.”20 The Committee recalls that one of the reasons why the offence of torture should not be subject to the statute of limitations is that torture has permanent effects and that accepting the statute of limitations would deprive victims of the redress, compensation and rehabilitation to which they are entitled. For many victims, passage of time does not attenuate the harm and in some cases the harm may increase as a result of posttraumatic stress that requires medical, psychological and social support, which is often inaccessible to those who have not received redress. States Parties shall ensure that all victims of torture or ill-treatment, regardless of when the violation occurred or whether it was carried out by or with the acquiescence of a former regime, are able to access their rights to remedy and to obtain redress.21 Given the lack of a prompt and impartial investigation into the allegations made by the complainant on various occasions in 1991 and in 2014, as well as the dismissal of the complainant’s 2018 complaint due to the expiry of the statute of limitations for the offence of torture, the Committee concludes that, in the present case, the State Party has failed to comply with its obligations under article 14 of the Convention, read in conjunction with articles 12 and 13, to the detriment of the complainant.
The Committee, acting under article 22 (7) of the Convention, is of the view that the facts before it disclose a violation of the complainant’s rights under articles 12, 13 and 14 of the Convention, read in conjunction with article 1.
The Committee urges the State Party to: (a) ensure a prompt, impartial, thorough, effective and independent investigation into the acts of torture, including the possible responsibility of superiors; (b) where appropriate, prosecute the alleged perpetrators and punish those found responsible with penalties appropriate to the gravity of the violations; (c) grant full redress, consistent with the gravity of the acts endured, in keeping with the findings of the investigation; and (d) take the steps necessary to provide guarantees of nonrepetition in connection with the facts of the present communication.
Pursuant to rule 118 (5) of its rules of procedure, the Committee requests the State Party to inform it, within 90 days of the date of transmittal of the present decision, of the steps it has taken to respond to the above observations.