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

OBSERVATIONS OF SENIDEAK TO THE THIRD PERIODICAL REPORT OF THE SPANISH GOVERNMENT REGARDING THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT BY THE UNITED NATIONS

1. SENIDEAK is a Basque Non-Governmental Organization created in October 1991 by the relatives of the Basque political prisoners, refugees and deportees. The aim of this organization is to let society know about the violation of the rights of the political victims of reprisal and of the relatives themselves. SENIDEAK is one of the observing organizations in the INTERNATIONAL PRISON WATCH in the Spanish State.

2. During six years of constant activity and denounce, the policy of penitenciary dispersion has been the main objective in our Organization, as the result of the vulneration of rights this policy implies. Penitenciary dispersion was first carried out in 1987 and widely applied to the Collective of Basque Political Prisoners from May-June 1989, inmediately after the halt imposed by the Spanish Government in the Table of Political Talks developed in Algiers between the armed organization ETA and the Spanish Government.

3. As we have already mentioned, it is from 1987 and mostly from 1989 (after the Government halts the political talks with ETA developed in Algiers since January) that the Basque political prisoners are transferred from large "top security" prisons (Department of Carabanchel-Women and ALcalá -Meco and Herrera de la Mancha-Men) to other prisons in the State. Most of the political prisoners, we could say, are dispersed in small groups or even totally isolated. Once in their new prison, they are still dispersed in different blocks or departments inside the prison, thus preventing any contact among them.

4. At present, around 500 Basque political prisoners are dispersed in 60 prisons of the Spanish State (out of which only 30 are in Basque prisons). The others may be even in the Canary Islands (off the cost of west Africa), and Ceuta and Melilla ( Spanish military outposts in North Africa).

5. However, we do not intend to offer any more statistics about dispersion. Still, we deem it necessary to stress that in the case of the Spanish State, the Government and the political parties which are signatories of the so-called "Anti-terrorist Pacts" consider it to be a key strategy in their campaign against the armed group ETA and against the movement for the Basque independence in general. It is a very simple strategy -as their spin doctors enjoy repeating-. It intends to "separate the prisoners from the terrorist organization into which they are coerced, thus allowing them complete freedom of speech" so that "according to their own free will" they can ask the ETA to abandon its armed struggle and plead for a change of strategy in the campaign for Basque independence. But facts are quite different. The real aim is to develop what in the first years of the Reform was known as the "policy of reintegration", based on the idea to submit prisoners to situations of extreme isolation, aggression and defencelessness in order to break them down on the human level, and thus on the political level too. Anyway, the strategy of penal dispersal is not only aimed at the prisoners, but directly targets their relatives, as well. It involves us in this "process of social reintegration" in a way that is totally cruel and dehumanised, turning us into pawns in a game in which our beloved are blackmailed and pressurised.

6. The Spanish Government, and the political parties that support its policy, regard dispersion as one the key elements in the fight against the ETA and the Basque movement for independence. For us and obviously for the prisoners, it is the basic "source" of a whole series of violations of fundamental rights we will be analysing throughout this report.

7. If one analyses Spanish law, International Law on Human Rights and the various recommendations issued to governments by international organizations concerning the treatment of prisoners or detainees, it can be clearly seen that the dispersion of the Basque political prisoners is in breach of all of them; not only because further violation of rights can be repeated (in dispersion, several fundamental rights are violated that will be later explained), but also because of the political aims and objectives of the dispersal designers.

8. From its very essence, dispersion contravenes the Spanish law. Article 25.2 of the 1978 Constitution states that "punishment of deprivation of freedom will be orientated towards social reintegration and re-education (...)". This article adds that "in any case the prisoner will have the right (...) of access to culture and the integral development of his/her personality". The social rehabilitation can hardly be achieved if the prisoners are isolated from their own social background, and thus prevented or hindered from having any link with it. Hardly can the right of access to culture be achieved if the prisoner is separated from his own specific and distinct culture(Euskal Herria has a specific language and culture, completelly different to the rest of the other countries in the Spanish State). Hardly can the prisoner’s integral development be achieved if he is dispersed and separated from his environment, in order to make them repent, far from his country and completely isolated from his fellow prisoners who share the same culture and aspirations.

9. Delving deeper into the Spanish Law, we find the Ley Organica General Penitenciaría -General Organic Law for Prisons (LOGP from now on)-. In its statement of principles, the following is exposed: "For the elaboration of this regulation, we have taken into account our contemporary conclusions in penitientiary science and the basic rules for the treatment of inmates, drawn up by the United Nations, the Council of Europe and international agreements on Human rights (...)". Further, it states: "To foreground the resocializing purpose of a sentence, the law maintains that the prisoner is not excluded from society but he is still an active member in it (...)", and "the punishment that deprives of freedom is taken as a treatment ,that is, as an activity which is directly aimed at the social re-education and reintegration of prisoners, by means of scientifically-proven methods. This treatment should not be used to forcibly change the prisoner's personality, but to allow him access to the elements needed to live full and useful lives once they are released (...)".

10. The Code of Practice for European Prisons adopted by the Council of Europe on February 12, 1987 contains clear and explicit references about the fact that prison is a punishmnet in itself. Then, under no circumstances should conditions of detention and the penitientiary regimes aggravate that suffering, and in no case should prisoner’s families be made to share it. As regards the contacts with the outside world, Rule 43.1 states that "the detainee must be allowed to commuicate with their family, and besides, the demands of specific sentences must be taken into account, as well as security and the good order of the establishment, with the persons representing external organizations. They will also be allowed receive regular visites from the above persons." This is also disposed in Rule 37 of the whole of MINIMUM RULES FOR THE TREATMENT OF PRISONERS, passed by the ECOSOC in resolutions 663C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977.

11. With respect to the objectives of treatment and "penitientiary regimes", Rule 65 of the European Council considers that "all necessary efforts must be made in order to assure that regimes within the establishments be established and administered" in a way that "the harmful effects of detention and the differences between life in prison and life in freedom are reduced to the minimum" (Rule 65.b) and that " the links of the prisoners with their relatives and the outside world are maintained and strengthened, to their mutual advantage" (Rule 65.c).

12. Following this, Rule 66.c establishes the obligation to "ensure that whenever possible, activities within prisons should be organised in a way that affords more contatcts whith the outside world and the possibilities it offers". To this end, Rule 68 considers that "the individual needs, capabilities and state of mind of the detainee, and in particular, his/her wish to keep close to his family have to be taken into account".

13. In the same line, the Ombusdman of the Basque Autonomous Community, Xabier Markiegi Candina, recommends in the Extraordinary Report for the Basque Parliament about the Situation in the Basque Prisons of March 1996 that "Efforts should be made for the punishments to be fulfilled in the nearest prisons to the inmates’ home". In addition, "distance from their home adds unjustified suffering to the privation of freedom itself, aggravates the vulnerability of the inmates’ rights and noticeably hinders -or impedes- the communication of these people with their relatives and friends, which is in fact a sanction for the latter".

14. The European Comittee for the Prevention of Torture (CPT) of the Council of Europe, in their second report after the visits to the Spanish State in 1991 and 1994, also mentions that "humanitarian considerations, together with the objective of social rehabilitation, make it desirable that prisoners undergo their sentences in the regions where their families live and where their social ties are".

15. The European Parliament itself, on January 18 1996, issued a resolution about bad conditions in the prisons if the European Union in which it states that: "the conditions of detention have deteriorated noticeably in several countries of the Union, particularly as regards overcrowding, (and) the locating of prisoners a long way from their families". It demands that "Responsible authorities of the Member States join forces as soon as possible to ensure that the Basic Rules of the Council of Europe be rigorously applied in each and in every prison of the Member States". Later, on September 17 1996, the same European Parliament adopted a resolution about the "Respect of Human Rights in the European Union". In its 24th paragraph, it is requested that "The Member States should consent the publication of the reports by the Committee For the Prevention of Torture and should study its considerations and put them into practice". In paragraph 31, it is requested that "The Member States should made all their best for the minimum criteria of human dignity be respected, and particularly the criteria related to impartiality, non-discrimination, hygiene material conditions, medical care, access to a job, contacts with the outside, prison leaves, probation, religious and moral assistance, social-educative, cultural and sports activities. Thus, it requires that the prison norms (R (87) 3) of the Council of Europe be rigorously applied in prisons".

16. We would also like to single out the 1994 and 1995 Reports of the INTERNATIONAL PRISON WATCH (OIP) in their reference to the Spanish and French States, and in particular the Mission Report on the visits to four Spanish prisons in March 1995. The latter report registers the fact that the rights of prisoners, and in particular Basque political prisoners, are continually violated, and that this situation had already been denounced, resulting in a protest on the part of the Spanish Government, which argued that the information came from "sources close to ETA". The last one of these reports condenms the dispertion of Basque political prisoners and the torture in the Spanish State. Moreover, in May, this International NGO issued a letter to the Spanish and French Ministers demanding the end of dispersion as it was considered an attack to human rights and the domestic and international law. The report also established that Basque prisoners should be transferred to Euskal Herria.

17. The ASSOTIATION FOR THE PREVENTION OF TORTURE (APT) issued an urgent report on September 23, 1996 in which it stated that measures for dispersion applied to political prisoners, the discrimination suffered by prisoners suffering from serious and incurable illnesses and the ill-treatment and infringement of rights "contravene the Human Rights of the detainees, no matter their political ideology or the motives for which they were detained or the sentences they have to serve... The APT wishes the Spanish authorities to put an end to these discriminatory practices which infringe the international and Spanish law... The APT invites them to provide all the means to set a real dialogue with the prisoners in hunger strike".

18. In Euskal Herria (The Basque Country) the Commission on Human Rights of the Parliament in the Basque Autonomous Community settled an agreement on October 3, 1996. This agreement was supported by the PNV, EA, Herri Batasuna and Izquierda Unida. The key measures for dispersion policy are rejected and the transfer of all the prisoners, as soon as possible, to prisons located closer to their homes is requested. It includes the call for the transferal of prisoners located in the Balear and Canary Islands, Ceuta and Melilla and the respect of fundamental rights in application of article 92 (serious illnesses) and probation.

19. The Maroño Groups (social associations) have shared the same ideas (Bakea Orain, Gestoras Pro -Amnstía, Elkarri, Gernika Batzordea, Herria 2.000 Eliza and Senideak).

20. The trade unions in the Basque Country (ELA, LAB, ESK,EILAS, EHNE, Izquierda Sindical de C.C.O.O., HIRU, CGT and CNT) have demanded the transfer of all the prisoners to the Basque Country and the respect of Human Rights.

21. The same demand has been repeated by the Catholic Hierarchy in the Basque Country and hundreds of different groups in the Basque association’s framework. Concerning this demand, there have been many popular mobilizations: demonstrations, fast and hunger strike,...that are constant in the Basque geography.

22. In the period concerned in this report, from April to 1993 up to now, the prisoners in 41 jails have developed different fights -usually hunger strikes- to demand dignified living conditions and the respect to human rights. We must insist on the fact that this kind of fights imply a noticeable detriment for some people that already suffer very harmful conditions for health. In addition, the group of prisoners as a whole has also carried out different struggles -up to 15- demanding their transfer to the Basque Country.

23. The Spanish Department of Domestic Affairs and Government answer these demands scornfully to the Basque Society. They argue that the penitenciary policy corresponds to the Central Government, and obviously, they deny vulneration of rights in prisons.

24. According to our organization, not only is prison dispersion per se a serious violation of fundamental rights, both for prisoners and their relatives, but it is also gives carte blanche to a series of other violations -some are inevitably linked to the strategy of dispersion itself, and others are added consciously and deliberately-. This reduces political prisoners to a state in which they are completely unable to defend themselves. This is their actual aim: the creation of an impunity framework for the violation of human rights, getting prisoners and their relatives to the most extreme defencelessness.

ISOLATION

25. The isolation caused by dispersion can be subdivided into two different categories, with different consequences . These types of isolations are not only consequence of the aim to separate and distance prisoners from their families. Other measures are brought into play which join forces within the overall "framework" of dispersion.

26. Social isolation: they are separated from their original social and cultural environment where they have developed as human beings. This situation is shared by the 95% of the prisoners.

27. Isolation from the group: in other words, the enforcement of penitentiary dispersion physically destroys the prisoners group. First, it splits them up in smaller groups, and later separates them individually. To be in a group is one of the principal means of defence against a system of punishment. The objective of this measure is to break the link of the group, and in this case, the link is not only human but also political.

Social Isolation

28. The mechanisms used to socially isolate the Basque political prisoners are the following:

a) Internement in prisons far away from their emotional and familiar environment. This implies a concomitant restriction in the number of visits. Travelling to prisons, hundreds or thousands kilometers away, entails a great cost in terms both of money and working hours, which friends and relatives are ill able to afford.

The LOGP, in article 12.1, states that: "the location of the establishments will be fixed by the penitentiary administration within the designated areas. In any case, each area must have sufficient number of establishments in order to meet the penitentiary needs and avoid the uprooting of the prisoners".

b) Restriction of personal visits. In many Spanish prisons, only visits by close relatives are allowed. Friends need a prior authorization from the State Office of Penitentiary Institutions, which arbitrarily concedes or denies these authorizations without the slightless reason, or adducing "security reasons" which are never clarified.

Article 51.1 of the LOGP establishes that "Internees will be allowed to communicate regularly, orally and in written , in their own language, with their relatives, friends and bona fide representatives of prisoners’ support groups, except in cases of judicial solitary confinement.

This communication will take place in a way that fully respects the privacy of the internee and there will not be any restrictions as regards persons and manners, except for reasons of security, individual treatment and the good order of the establishment.

If we consult the BASIC RULES FOR THE TREATMENT OF PRISONERS approved by the ECOSOC in resolutions 663C (XXIV) of July 31, 1957 and 2076 (LXII) May 13, 1977, we will see that rule 37 states that "prisoners will be permitted to communicate periodically, under the necessary supervison, with their relatives and friends of good standing, both by mail and visits.

If it is true that Basque political prisoners are usually allowed visits from their close relatives (parents, brothers and sisters and partners), problems frequently arise which are deliberately intended to hinder or stop these visits. Similarly, when friends are authorized visits, they face a number of problems which we will examine when we look at prisoners’ right to communication. However, it is quite clear and certain that dispersion in fact a blatant violation of the right to receive visits, because due to the distance from their homes and to their separation into different prisons, all the difficulties are only overcome by the strong determination of relatives and friends not to abandon them. This implies frequently crippling expenditure and long journeys which can take days and in terms of work they are days lost. Sometimes, the state of health of elderly parents unables them to exercise this right. In this context, we must also consider the danger to life involved in travelling to the places where our relatives and friends are imprisoned: traffic accidents are usual due to the length and tiredness of these journeys which often entail driving all night long. Although most of these accidents have not been really serious, we do have to emphazise the death of 4 relatives and friends on the roads and the serious injuries caused by some of these accidents.

Therefore, taking into account the way in which visits are deliberately hindered as part of the policy of distacing prisoners from their families and friends, along with the arbitrariy way in which prison authorities use the argument of "reasons of security or order" to allow or reject visits of friends, we are faced with a very serious infringement of law. Although "DE IURE", the law regarding this point would be observed, it is being continuosly disregarded"DE FACTO". The same can be said for the rules concerning the treatment of prisoners recommended by the Council of Europe and the ECOSOC.

c) Limitation to the length of visits. In the Spanish jails, prisoners have the right to receive two weekly visits lasting 20 minutes each. For reasons of distance, a single weekly visit lasting 40 minutes is sometimes allowed, although this only happens in some prisons. If the prisoner is punished, the length of these visits is limited to 10 minutes.

d) Visit conditions. Visits take place in special rooms where the prisoner and the visitor are separated by a thick glass, and by iron bars in many cases. This is, visits are allowed but physical contact is denied. These rooms are never properly cleaned, the glasses are often so dirty that it is difficult to see the person in front and the sound system distorts voices in a way that everyone is forced to shout. Communication is actually very dificult. In theory, visits should facilitate human contact with relatives and friends so that social relationship be maintained, and this is exactly what the glass partition impedes.

Artilcle 41.2 of PRISON REGULATION (RP) develops the orders of the LOGP and clearly states that communication will be respected in a way that it ensures the maximum privacy for the prisoner. No restriction will be applied regarding people and manners other than by security reasons, individual treatment and the good order of the establishment.

It is certainly true that the article is perfectly consonant with the rules for the treatment of prisoners recommended by the Ministers Committee in the European Council (rule 43.1) and the rules in the ECOSOC (rule 37). It is also true that the conditions of the visits are in breach of the RP because privacy is impossible when the visiting-rooms are like "bedlam", rendering communication impossible. The situation is exacerbated by the difficulties caused by the filthy, reinforced-glass partitions, the iron bars and the inaudible intercom systems. Not only is the right to privacy violated, but also the right to visit per se, as visits are frequently reduced to merely looking at one another for 20 minutes through these artificial barriers, without the possibility of establishing any contact.

In this state of affais, we consider that what is finally being violated is the dignity of the prisoner and the people on the other side of the glass. It is humiliating indeed and creates a feeling of complete helpleness when communicating with the prisoners in such conditions.

5.- Special face-to -face visits (article 45 of RP). These are monthly visits where physical contact is possible(in the French state this kind of visits are not allowed). They are authorised to close relatives and partner, and the visitor and prisoner are left alone in a extremely small, dirty and poorly furnished room. They last between 1 and 3 hours, although usually 2 hours is the average.

Before these visits, both the relatives and prisoners are subjected to a body search and sometimes they have to strip naked. If anyone refuses to do it on the grounds that it is humilliating and degrading, the visit does not take place. This measure, which nowadays is completely unnecessary thanks to the level of surveillance technology in control and vigilance, is arbritarily applied. In other words, strip-searches are carried out only in some prisons, and it always depends on the will of the responsible of the prisons. Sometimes, in the same prison, relatives and the prisoners have been made to strip, while they others have not. Such searches are only carried out when the authorities of the prison decide so adducing insuperable "security reasons".

On the other hand, it is scientifically proved that the a long period without direct physical contact can cause physic and psychological damage and it openly infringes the rigth to personal integrity.

f) Control of communication and restrictions of correspondence. Visits, letters or the 5-minute phone calls allowed once a month in some prisons are under surveillance. Conversations are recorded and letters intercepted and photocopied. In some prisons, the prison officers censor them, crossing out sentences or even whole paragraphs. There is no privacy in writen or oral communication. Both the prisoner and the visitor or correspondant alike are obbliged to self- censor, because the prisoner could be punished for the contents.

Articles 43, 44 and 46.5 of RP spell out specifically the circumstances under which communications may be restricted, limited or intercepted.

Article 43 states that when the conditions of article 51.1 paragraph 2 of the LOGP ("security reasons")are satisfied, the governor of the institution may permit the restriction or intervention of the oral communication, but the reason for his decision will be notified to the prisoner and to the Juez de Vigilancia Penitenciaria -Prison Judge (JVP). It also specifies that if communication takes place in a language other than Spanish or the official language of the respective Autonomous Community, the prison governor must be informed in advance so that he can take appropriate measures.

Yet again we find the ubiquitous security measures to control communication. Law states that communications can only be intercepted by the expresspermission of the prison and that the prisoner must be previously informed. However, all the conversations of the Basque political prisoners during visits are systematically controlled by tape recorders placed in the intercom system through which they have to shout to make themselves heard.

As a matter of fact, the recording of the communications masks a hidden agenda. On the one hand, it aims to know the prisoner individually in order to discover his weakness, his state of mind and thus to be able to "treat" him. On the other hand, more serious is the possibility to use these recordings in the mass media, leaking previously selected and manipulated parts of conversations (taken out of context). This intends to persuade the public eye that some prisoners renounce to their political convictions because they are tired, discouraged, disillusioned... This practice is totally illegal. It attacks the most fundamental rights of the individual.

There are several examples to illustrate the above mentioned practice. However, the most shocking of all is problably the case of a defending counsel who was arrested and did one year after being charged with collaboration with armed group. This charge was based on the contents of some recordings obtained during a professional communication with several client prisoners. As soon as he was arrested, examining magistrate decreed that the court should meet in camera and for over a month, the access to the contents of the recordings was restricted. On the very night of his arrest, all the written and audiovisual media were in possession of several abstracts from them (manipulated, as the defending counsel himself assured) which seemed to infer that the counsel did actually collaborate with the ETA and that his client themselves were discourged. (We will tackle the right to legal assistance in a late section of this report). A year later, the counsel was released with no charges because the evidence for his imprisonment were judged to have been illegally obtained. Nobody has been later prosecuted for undue leaking or presentation of illegal evidence. Neither has an investigation been conducted to clear up the facts. This is just a simple example out of many of the kind.

In most jails, prisoners are only allowed to send two letters a week. Anyway, all the letters they receive and write are intercepted. In may cases, letters never arrive . When letters are written in Basque, mother tongue of most of the Basque political prisoners, there are long delays while being translated and sometimes they are simply confiscated. This means that social relationships are restricted and lack privacy is violated.

Written communication, the only means to keep in touch with the social and cultural environment of their own country, given the problems and the impediments the vast distance places in the way of regular visits. In this regard, article 46 of the RP states that there must be no restriction in the number of letters prisoners can send or receive. However, according to security reasons, restrictions may be introduced or intercepted. Both of these extreme measures are systematically applied to Basque political prisoners.

g) Restriction or prohibition of the press and political publications. The unreasonable and unjustified security reasons, which the penitentiary administration continuously uses against Basque political prisoners, are the pretext to restrict, censor or prohibit these kind of publications.

Article 58. 1 of the LOGP states that prisoners have the right of access to all the available books, magazines and newspapers of free circulation, and this right can only be limited in certain cases where it is justified by the individual treatment or the previous resolution taken by the group of observation and treatment of the establishment. The prisoners will also have access to sources of information such as radio, television and others.

Both rule 45 of the European Penitentiary Regulation as well as rule 39 of theECOSOC basics rules for the treatment of prisoners dispose that prisoners must be regularly informed about the important events, be it by press, magazines, (...) "authorized or paid for by the administration".

In all this rules, penitentiary administration is granted control over written text. However, under no circumstances is it stated that this control must be arbitrary or that the informative censorship be authorized, but this is actually what really happens. It is always a result of the unmotivated decisions ofn the part of prison officers. Books and magazines dissapear, legally circulating newspapers and magazines the prisoners are subscribed to arrive with cut out sections. This has nothing to do with the specific treatment of individual prisoners, but with the character of the officers allowing it. We are witness of the determination to restrict knowledge of the events outside and to disconnect prisoners form the social reality they belong to, which is in fact a further step in the isolation and uprooting of the prisoner.

In conclusion to this section on social isolation, we would say that it is a clear restriction in communication what we are facing, with restrictions on the messages prisoners can issue and receive. Prisoners are not allowed to use communication as a means to express their thoughts, feelings, etc. because they know that "everything they say can be used in evidence against them". Interpersonal communication and relationship are cornerstones for the pshico-emotional balance of the individual and what we find is an extreme limitation of both.

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