This file is a mirror of EUSKAL HERRIA JOURNAL by Basque Red Net.

IMPUNITY

Torture is described in Article 204 bis of the Penal Code (PC) as injuries or threats inflicted by an authority or public servant during a police or legal investigation to obtain a confession or information. This definition ignores some of the possibilities included in Article 1 of the Convention against Torture and Other Abuse or Cruel, Inhuman or Degrading Punishment ratified by the Spanish Government in 1987. In its public session on April 23, 1993, when examining Spain's report, the Committee against Torture repeated in its conclusions its concern over the fact that the Spanish legislation did not contain all forms of conduct included in Art. 1 of the Convention.

Article 204 bis of the PC increases the prison sentence so as to impose the highest possible punishment given for causing such injuries. Any public servant convicted of torture is also specially disqualified from working in the same sector of the administration, as a member of the Spanish security forces or as public servants in prisons.

Sanctions for wounding increase with the seriousness of the injuries and the kind of medical assistance needed afterwards. This means that any public servant actually sent to prison for causing injury will be there for a very short time, as the physical harm done by torture cannot ususally be described as serious injury. Applying electrodes or pushing a prisoner into a bathful of filthy water is painful and extremely umpleasant, but the physical injuries are minimal. This is more serious when we consider psychological torture, which leaves no physical marks.

Having described the articles that penalize the offence of torture, we shall now describe the actual efforts made to punish torture.

In most cases, accusations of torture are simply filed through lack of evidence. If the torture occurs during a period of solitary confinement, and the person in solitary confinement is regularly hooded or blindfolded and so cannot see his or her guards, or is simply prevented from looking at them, if the forensic doctors do not examine the prisoner in detail, if psychological torture is not recognized as a medical complaint, if the interrogations and interrogators do not exist, how is it possible to prove that torture really has taken place?

In his annual report for 1992, Alvaro Gil Robles, the Spanish Ombudsman "continues to observe that internal investigations, begun by the superiors of the officers involved, are not always as rigorous as they might be, especially in the cases where the accusers provide specific data or eye-witnesses. This institution has to suggest that, in some cases, a broader investigation should be made, since all that has been done is to take a routine and very superficial declaration from the officier implicated or a report from the police station that has been accused." Gil Robles also notes that the legal judgement is usually given one or two years after the events have occurred "and often leads to a case being stopped through lack of evidence, simply because no real attempt was made to investigate the case at the moment the accusation was made." The Ombudsman concludes by requesting greater agility in these preceedings and "the active presence" of the public prosecutor's department. This is only one of the first steps to be taken if we are to give an adequate answer to the questions posed above.

In the few cases where accusations of torture have been taken up, the trials have been dragged out over very long periods, anything between 6 and 10 years, during which time the victim has to provide evidence, go back over the whole hellish experience, try to speed up the process, appeal against sentences and so on, only to find in the end that the officers or warders tried are found not guilty or given farcical sentences. Further, in cases where the accused are actually found guilty, we have been surprised to find that they have been promoted during the trial, and gone on to occupy positions of responsibility. The Government has shown itself only too willing to pardon them for any offences committed. In his Ombudsman's Report for 1992, Gil Robles complaints, for the third year running, of the refusal to suspend officers accused of torturing and abuse from their jobs, on the pretext of waiting until the courts pass judgement.

The UN's Committee against Torture, a highly respected body, makes clear in its conclusions on Spain "its concern over the increase in accusations of torture and abuse, over the delays in bringing such accusations to court and the impunity of some torturers."

Given the current situation, no torture victim can hold out hope of gaining suitable redress. Because of this, many people who claim to have been tortured either come to us or to other similar public organizations without even bothering to file an official legal accusation.

To finish, we return to the Special Reporter, with whom we are in complete agreement: "Judges and magistrates must be more aware that impartiality is not possible when basic human rights are violated because, by virtue of the oath they have taken, they must side with the down-trodden. They have the authority and competences to set free detainees that have been kept in unacceptable and illegal conditions; they have sufficient authority not to accept testimony not freely given; they have the power to ensure that torture is not rewarded and so remove its attraction, and they must use that power. Impunity makes torture attractive and feasible."

Mr. Kooijmans goes on to say: "If all the governments took the Committee's criteria and opinion seriously, if they seriously analysed their national systems to see if they conformed with our criteria and opinions and if they began to introduce the necessary reforms, the campaign against torture would receive a tremendous boost. Only then would we be in a position to prevent torture, which in my first report seven years ago I called the plague of the second half of the 20th century, continuing its unruffled march on into the 21st century."