The author of the communication is a Spanish citiaen, born in 1954. At the time of submission he was detained in Finland, awaiting extradition to Spain. He alleges to be a victim of a violation of article 7 of the International Covenant on Civil and Political Rights by the Government of Spain. The Optional Protocol entered into force for Spain on 25 April 1985, The author is represented by counsel. .
The author, a former political activist, states that he lived in France from 1957 to 1979. From 1974 to 1977, he served a prison sentence for acts of sabotage committed against Spanish property in France. In 1979, he returned to Spain. He acknowledges that he was aware that some of his former friends had formed a political organisation, Action Directe, but explains that he never joined the organisation,
On 19 March 1984, the Special Services of the Spanish Guardia Civil arrested the author. He was detained for 10 days, during which time he was allegedly tortured repeatedly by the Guardia Civil and forced to sign a “confession” incriminating himself as a member of a terrorist group, During this period, the author also made statements to the examining magistrate in charge of the case, He was released because of several contradictions in his case.
On 26 August 1987, he travelled to Finland and requested political asylum. On 8 October 1987, he was taken into custody by the Finnish security police, in application of the Aliens Act. On 1G December 1987, the Government of Spain, through Interpol, requested the author’s extradition. On 4 March 1988, the Supreme Administrative Court of Finland decided that the author’s detention under the Aliens Act was lawful and on 20 March the Minister of Justice approved his extradition. He was extradited to Spain on 28 March 1988. 31 -284-
The author claims that the treatment he was subjected to in the Carabanchel prison in Madrid in March 1984 violated article 7 of the Covenant, aud that in spite of the fact that the Optional Protocol only entered into force for Spain on 25 April 1985, the Committee should consider itself competent to consider his claim, since the torture allegedly suffered in 1984 continues to have “immediate effects”, in that he was extradited from Finland allegedly on the basis of his 1984 confession. He also states that he fears that he will again be subjected to torture in Spain. State oartv’ 6 observatiQllFc :
The State party submits that with regard to the allegation of torture in 1984, the communication is inadmissible ratione * It disputes that the alleged violation could be deemed as continuing after the entry into force of the Optional Protocol for Spain. Further, it submits that the extradition request of 16 December 1987 was based primarily on admissions made by the author before the examining magistrate in charge of the earlier case1 the author had never claimed that these statements were made under duress.
The State party further argues that the author has failed to exhaust domestic remedies. Since torture constitutes an offence under article 204 bis of the Spanish Civil Code, the author could have denounced the alleged events before the competent civil and criminal tribunals. He could have filed such a complaint with the Spanish authorities any time after March 1984 and thereby given the Government of Spain the possibility of invaotigating the alleged violation. In order to satisfy the requirement of exhaustion of domestic remedies, it was not necessary for the author to prove that he was a torture victim, but he should have at least filed a complaint. If dissatisfied with the judicial process, the author could still have had recourse to the constitutional remeay of s, pursuant to article 53 of the Constitution and article 43 of the Ley Organica de1 Poder Judicial, 6aeUe~ a&&d PrOceecling6 before the COMnitt6Q
Before considering any claims contained in a communication, the Human Rights Committee must decide, in accordance with rule 87 of its rules of Procedure, whether or not it is admissible under the Optional Protocol to the Covenant.
With regard to the application of the Optional Protocol for Spain, the Committee recalls that it entered into force on 25 April 1985. It observes that the Optional Protocol cannot be applied retroactively and concludes that the Committee is precluded &one tempo&i from examining acts said to have occurred in March 1984, unless these acts Continued after the entry into force of the Optional Protocol and allegedly constituted a continued violation of the Covenant or had effects that themselves constitute a violation of the Covenant . -285-
Accordingly, the Committee finds that it is precluded &&ione_W.m~.@& from examining these allegations.
April 1990, the Committee found that the author’s inability to challenge his detention under the Finnish Aliens Act during the first week of detention constituted a violation of article 9, paragraph 4, of the Covenant. -286-