COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
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).
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
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.
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.
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.
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.
was also requested on the implementation of articles 5 to 7 of the
information was requested on the implementation of articles 8 and
9 of the Convention.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
Committee thanked the Government of Spain for its report and the replies
offered by its delegation.
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.
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
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.