430. The Committee considered the second periodic report of Spain (CATC/C/17/Add.10) at its 145th and 146th meetings, on 23 April 1993 (see CATC/C/SR.145 and 146 and Add.4).
431. The report was supplemented orally by the representative of the State party, who explained that, further to the recent dissolution of Parliament, the Bill concerning a new Penal Code, mentioned in the report, was to be taken up by the new Government, pursuant to article 115 of the Constitution.
432. Members of the Committee regretted that the report generally contained less information on the various articles of the Convention and their actual application than had the initial report.
433. As to the constitutional and legal framework for implementation of the Convention, members of the Committee wanted further information on the status of the Convention in the Spanish legal system; and on the links between the police, the Public Prosecutor's Office and the judiciary, particularly in cases concerning security. They asked whether cases within the scope of the Convention had been submitted to the European Commission on Human Rights; whether it was intended to publish the report of the European Committee for the Prevention of Torture on its visit to Spain in April 1991; and whether Spain considered contributing once again to the United Nations Voluntary Fund for Victims of Torture, as it had from 1987 to 1989.
434. With regard to article 1, read together with article 4 of the Convention, members of the Committee took the view that articles 204 bis and 551 of the Spanish Penal Code were more restricted in scope than was the definition contained in article 1 of the Convention, for it did not include, for example, torture inflicted for reasons of punishment. They asked whether the Constitutional Court had applied the provisions of the Convention by going beyond mere mention of the Convention in its rulings. Clarifications were also requested in connection with the application of article 582 of the Penal Code.
435. With reference to article 2, paragraph 1, and articles 4 and 11 of the Convention, taken together, members of the Committee referred to certain information from non-governmental sources about cases in which the provisions of the Convention were said to have been violated. Clarification was requested on the subject of allegations of ill-treatment inflicted on persons deprived of liberty, in prisons or police stations, particularly during questioning. Again, clarification was requested about allegations that extremely light sentences, generally suspended, were systematically handed down against public officials who had committed acts of torture. It was also asked how promotion or transfer within the same grade of members of the forces of law and order sentenced for acts of torture could be reconciled with the spirit of the Convention and the relevant decisions of the Supreme Court.
436. Members of the Committee asked for details about the implementation of article 3 of the Convention and the cases mentioned in paragraph 15 of the report, concerning nearly 100 persons of Central African origin said to have been provisionally authorized to stay on Spanish territory pending a final ruling. They also asked how the Spanish authorities made sure that persons who were turned back or expelled were not subjected in their own country to cruel or inhuman treatment.
437. Clarification was also requested on the implementation of articles 5 to 7 of the Convention.
438. Further information was requested on the implementation of articles 8 and 9 of the Convention.
439. With reference to article 10 of the Convention, members of the Committee said they would like further information on the training for law enforcement personnel and medical staff, and on the measures taken to publicize the provisions of the Convention as widely as possible.
440. With regard to article 11 of the Convention, members of the Committee asked for information on the actual implementation of the instruction concerning compulsory medical assistance for detainees, issued by the Ministry of the Interior in June 1981. They also pointed out that the conditions of detention in Spanish prisons could sometimes be likened to cruel or inhuman treatment and mentioned in this connection the sanitary conditions, lack of ventilation and prison overcrowding, the repeated measures of prolonged isolation, holding suspects incommunicado for five days, frequent transfers from one prison to another, which made visits by relatives difficult, and the arbitrary classification of detainees in the "first degree" category when they had not yet been charged. Members also asked what measures had been taken so that, in practice, every detainee had the information note on the rights of detainees mentioned in the report; and how, in fact, interrogation methods and practices were systematically monitored. Details were also requested about the safeguards when suspected members of armed gangs were held incommunicado, partly in connection with the right of access to a lawyer.
441. In connection with articles 12 and 13 of the Convention, members of the Committee asked for statistical data about the number of automatic investigations, investigations conducted further to complaints, judgements and sentences in cases of torture and ill-treatment. They referred to a report by the People's Advocate, annexed to the initial report, in which the delay in court proceedings was deplored and asked what measures had been taken for the courts to speed up the processing of cases of torture or ill-treatment. They requested details on how the provincial courts worked particularly in the light of a judgement declaring some of the provisions concerning them to be unconstitutional.
442. As to article 14 of the Convention, members of the Committee asked for clarification about the conditions in which a victim of an act of torture could obtain redress, particularly when the guilty person was a public official; and on what basis the subsidiary responsibility of the State or another body under public law could be incurred.
443. Members of the Committee said they would like details about a judgement of the Constitutional Court dated 15 April 1991 which appeared not to have applied the provisions of article 15 of the Convention; and about paragraph 27 of the report, which did not appear to rule out completely statements that were obtained under torture.
444. In his reply, the representative of the State party stated that publication of the report of the European Committee for the Prevention of Torture following its visit to Spain was awaiting a political decision by the Council of Ministers. He added that Spain was continuing to make contributions to the United Nations Voluntary Fund for Victims of Torture and for the year 1992 had effectively doubled its contribution.
445. With reference to the allegations if ill-treatment reported by the non-governmental organizations, the representative of the State party briefly described several cases of alleged ill-treatment by the police in Benidorm, Ibiza and Mallorca. Investigations had immediately been initiated by the Public Prosecutor's Office: in one case, an officer of the local police force was alleged to have used excessive force and, in another case, a sergeant had been charged with an offence punishable by up to two years' imprisonment. In no circumstances was a public official allowed to exceed his sphere of competence and the penalty imposed in such a case was more severe than that laid down for the same acts committed by a private individual.
446. Pardons granted in respect of acts of torture did not imply any complicity by the authorities with regard to the misdemeanours of officials. In one case involving certain members of the Guardia Civil, a pardon had been granted on account of the period of 12 years which had elapsed since the occurrence and pursuant to the policy of social reintegration; nevertheless, the officials concerned had been dismissed from their duties, although not deprived of their freedom. Suspension of sentence in cases where the penalty was less than one year was not automatic and required a decision by a judicial body. In one instance, the judicial body had ordered that a sentence of four months' imprisonment concerning a member of the Guardia Civil had to be carried out.
447. With regard to articles 1 and 4 of the Convention, the representative emphasized that any form of degrading or harsh treatment inflicted as punishment was deemed torture and punished accordingly and that the Committee's concerns regarding articles 204 and 551 of the Penal Code would be duly taken into account in a new Bill shortly to be drafted in Spain.
448. Referring to article 3 of the Convention, the representative emphasized that Spain's geographical location encouraged many illegal immigrants to seek asylum. There had, however, been no cases involving racism or torture against immigrants or foreigners. If the right of asylum was not granted to a person, he was returned to his country of origin.
449. With reference to article 10 of the Convention, the representative explained that prison officials, members of the Guardia Civil and medical doctors were given human rights courses especially concerning the prohibition of torture.
450. Referring to article 11 of the Convention, the representative explained that the maximum permissible period of incommunicado detention was 72 hours for ordinary offences. In the case of an offence attributable to organized crime (drug traffickers and terrorists), a person could be detained for up to five days. In such cases, the detainee's relatives were not contacted, and the right to a lawyer of his choice not exercised until a judge had been informed; a duty lawyer specializing in cases of drug trafficking or terrorism was, however, present from the outset and any doctor chosen by a detainee could produce an entirely independent report. However, irrespective of the nature of the alleged offence, the rights of all arrested persons were fully respected. He further explained that two lawyers were currently on trial in Spain charged with acting as go-betweens for a terrorist organization, and a third was facing trial on charges of receiving ransom money. The dispersal to separate prisons of detained members of armed gangs was a policy which international bodies such as the European Court of Human Rights had recognized as a right that national authorities could exercise if they saw fit. He added that no complaints had reached the European Commission on Human Rights from any member of terrorist or drug groups.
451. A person under arrest was immediately informed of all his rights, including the rights to silence and to the services of a lawyer and a doctor, and no interrogation could take place until the detainee's lawyer was present. He had to certify that he had been informed of his rights when taken to the police station and, later, in the presence of his lawyer. Prisoners were given a full medical examination by doctors on entry and a test for AIDS, if they requested it. In each prison, the medical director had to check the physical and mental health of prisoners in solitary confinement daily and such punishment was suspended in the event of illness.
452. Spain's prison regime was in keeping with the highest international standards. One of its provisions was, for instance, that no penalty could be imposed on a prisoner if any action was pending which involved the prison authorities. The General Secretariat for Prison Affairs acted constantly to eradicate all possibilities of ill-treatment of prisoners and to bring any such cases to light. The Office of the People's Advocate, which had hitherto received only two complaints in that regard, had commented favourably on the speed and efficacy of its work.
453. With regard to articles 12 and 13 of the Convention, the representative stated that article 24 of the Constitution prohibited unjustified delays in bringing to trial officials charged with torture and ill-treatment. Compensation for abnormal delays in the administration of justice was a right established under article 121 of the Constitution and under article 292 of the relevant Organization Act. There had, however, not been a single complaint about delay in the administration of justice relating to allegations of torture.
454. Concerning article 15 of the Convention, the representative explained that courts attached no value to statements obtained under torture and other evidence was required for a conviction.
Conclusions and recommendations
455. The Committee thanked the Government of Spain for its report and the replies offered by its delegation.
456. The Committee reiterated the concerns it had expressed at the end of the consideration of the initial report, particularly regarding the need for all the offences specified in article 1 of the Convention to be punished with equal vigour and the desirability of general application of the procedural standards relating to the holding of persons incommunicado and to the choice of a trustworthy counsel.
457. The Committee also expressed its concern over the increase in the number of complaints of torture and ill-treatment; about delays in the processing of such complaints; and at the apparent impunity of a number of perpetrators of torture.
458. The Committee welcomed the cooperation of the State party and expressed its confidence that measures would be adopted by Spain that would improve compliance with the Convention.