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

TAT - GROUP AGAINST TORTURE IN THE BASQUE COUNTRY

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IV-Art 12 and 13 of the Convention: Prompt and unbiased investigation in case of torture evidence.

In relation to the necessity of a prompt and unbiased investigation of any evidence of torture, the position of the judicial authorities does not generally agree with this principle, because the trend is, as a general rule, to shelve these reports, dismissing the hearings of tests required ex parte. These files are based exclusively on the reports of the forensic surgeons, whose deficiencies are reckoned even by organs such as the CPT. In the cases in which denounces follow a procedural stage, this lasts years, and the trials on tortures are held after those trials against the victims themselves. This way, articles 12 and 13 as well as art 15 are infringed, as we will see later.

Due to the incomplete and superficial forensic reports (CPT Report II, paragraph. 65), torture reports are normally shelved for lack of visible signs, or if the signs appear, for being due to causes other than ill-treatments. (Report III paragraph. 19). Therefore, nor the judges or the prosecutors brief on the natural judge testimonies of possible tortures that have been reported in the taking of evidence. We remind that the National High Court, as exceptional Court, has exclusive authority in the crimes for which the incommunicado detention is applied (Art.384, CCP ) and has no authority to know of the cases of torture.

-TAKING OF EVIDENCE BEFORE JUDGES OF THE NATIONAL HIGH COURT:

As the CPT affirms, the torture methods used at present are directed towards not leaving any traces, mostly if "... they are done in an expert way..."(CPT Report III paragraph 30). In view of this evidence, judges do not take any measures to prevent this in cases of clear risk, as it is the solitary confinement. Apart from the discretionary authorities authorized by art. 520 bis, judges who take evidence from the detainee incommunicado, receive continuous reports on ill-treatments and tortures, but they do not investigate or brief on the competent judges. As regards to this, the comment made by the Judge of the Central Court N5 to the commission of the CPT on his visit "ad hoc" of June, 1994 is very illustrative. He admitted that he had appreciated signs of violence in some cases, but he was of the opinion that they were consequence of the circumstances of the arrest, more than deliberate ill-treatment.

In relation to this, we would have liked to enclose as appendix the recent judicial statements in which the detainees incommunicado stated in September 23 and 24, 1997 (writ 305-97 of magistrate's court n5)that they had suffered tortures, but the judicature has not taken any measures to investigate those testimonies. We invite CAT to request those testimonies to the National Criminal Court, because thelawyer is never allowed to photocopy these testimonies until the proceedings are advanced. As you will read in APPENDIX 4 the correspondent reports were presented on November 5, 1997.

- POSITION OF JUDGES AND PROSECUTORS IN PROCEEDING OPENED FOR TORTURES

When torture complaints are presented, the public prosecutor is never accuser party against the members of the Law Enforcement Agencies or he requests dismissal.

There are cases, APPENDIX 5, in which the prosecutor even brings an action against the tortured themselves for false accusation. As example, we have the acquittal of Boni Arrondo, accused of false denounce of tortures, which has been appealed by the Public Prosecution. The counsel for the defence are also accused sometimes(a clear example is the case of lawyer AITOR IBERO, who is being judged for false report, for publicly describing the judicial statement of one of his clients- APPENDIX 6-)

To illustrate the aforementioned, we have the case of torture on Kepa Urra Guridi (Brief proceedings 191/94. Magistrates Court n.8). The public prosecutor repeatedly asked for the shelving of this case and he only changed his mind in his final conclusions during the hearing, after the undeniable evidence obtained ex parte. It was ended on 25-09-97. The sentence will be issued to the CAT as soon as it is made public. (APPENDIX 7)

Unfortunately, the said case is not an exception regarding the public prosecutor’s attitude which is always passive when it is not obstructive. Concerning the cases of torture, the public prosecutor often asks for the cases to be shelved due to lack of evidence.

This attitude is shared by the Judicature:

A) Usual shelving of cases under consideration, actually rejecting the course of the procedural steps demanded ex-parte. (APPENDIX 8). Shelving of complaint in 24 hours.

B) Shelving of complaint with evidential medical report of marks. (APPENDIX 9).

C) Passivity when indispensable examining evidence to objectify torture. (APPENDIX 10). Request of analytical evidence of urine and blood, in search of drugs.

D) Judges inhibition in favour of Magistrates Court in Madrid, based on the fact that the detainee spends more time in the headquarters in Madrid. (APPENDIX 11).

E) In those cases in which proceedings are in due course, condenatory sentences come very slow even after 10 years. (APPENDIX 12)

- INFORMATION ISSUED BY THE GOVERNMENT ABOUT TORTURE CASES.

We have knowledge of the fact that when the Spanish State is asked by International Organizations about torture cases, they answer that such allegations are made by the detainees involved in the armed struggle, following instructions and that they rarely do make later pertinent judicial complaints.

The CPT itself has asserted that all the allegations in their different visits, particularly in their "ad hoc" visit in June 1994 are actually credible. It is true that in some cases we find victims who are reluctant to make judicial complaints. The reasons are, on the one hand, the threats of future reprisal received during the period of detention and on the other hand, the confirmed inefficiency of the proceedings in course.

We can thus affirm that in some cases, the Government has sent equivocal information. For instance, as regards the answer by the Spanish Government to the Reporter against torture, recorded in his report E/CN.4/1997/7./Add.1 in paragraphs 449 and 451 in respect to the cases of torture on SOTERO ETXANDI and KEPA URRA GURIDI, we can state the following:

-SOTERO ETXANDI: Regarding the cases in course, we suggest that you should see APPENDIX 13, where we transcribed the report interposed in the Examining Court in Pamplona on March 10, 1995, with the subsequent proceedings N. 800/95. It includes the different forensic reports as well as the statements before the judge of the Central Examining Court in the National High Court issued on March 2, 1995, in which he reported tortures and the reason for previous statements. The shelving was decreed on April 22, 1996.

With regard to the case of KEPA URRA GURIDI, as we have previously mentioned, it is false that his allegatons have been rejected in first and second instance, on account of the fact that on September 23, 24 and 25 of this year, the hearing was held in first instance. The sentence has not still been passed. As soon as the sentence is made public, it will be issued to you. (APPENDIX 7).

V. Art. 15 of the Convention: ...no statement confirmed to be taken by torture can be regarded as evidence.

The Committe on Human Rights in the UN disposes the following as regards the Spanish State:

"The Committee is concerned about the fact that the evidence obtained by means of coercion are not systematically rejected by Courts".

In this respect, we can illustrate this statement by presenting the sentence of the Penal Section n. 2 in the National High Court on December 1995, in which the accused are sentenced in spite of the following assertion that:

"...In view of the numerous detailed statements (about torture) by the prosecuted and by the proposed witnesses, the section recognizes the possible existence of torture, albeit this section certifes that several proceedings are in course for the purge of this issue". (APPENDIX 14)

In respect of the cases of incommunicado detention, we show our concern on the general consideration of the Judicature that the statements of the detainee before the judge are always freely issued:

The incommunicado detainee generally makes the Police statement with the single presence of an officially-appointed lawyer (we remind you that the lawyer is only present during this statement, but has no possibility to previously interview the detainee nor to participate in the statement). The later judicial statement is based on the reports presented by the Police, and the detainee has no private contact with any lawyer before the second statement. Therefore, we can reach to the conclusion that the judicial statement is also stale, in opposition to the idea that all the statements before the judge are systematically freely issued.

VI. Torture to Minors

The last months have been witness to a very worrying phenomenon regarding the age of the detainees in incommunicado detention. Even young people under the age of 16 have been incommunicado for the maximum legal period of 5 days. Thus, minors are submitted to the same cutbacks in rights as adults and there are also constant complaints of illegal interrogations and ill-treatment. They are separated from their environment, taken to Madrid for their statements and their parents are not informed abour their childen’s whereabouts whatsoever.

Therefore, the simple fact that those minors are isolated implies an obvious mal-treatment even when the Police treatment is exquisite (which is not very likely according to the constant complaints of torture).

Torture is particularly loathsome as its effects are not frequently physical but psychological. "The destroyed and disintegrated personality will never be cured. Dignity inherent to the victim is irreparably damaged". (Report of the Special Reporter Against Torture in 1993). If this is always true, consequences on an underage are obviously much more serious since their personality is not still formed.

Torture on minors is a new phenomenon, which is often hidden by the parents themselves. Therefore, we will inform you about the development of such cases in a future. We suggest that you note the age of the detainees. We have known that at least 46 minors than 18 years old were tortured, most of them under incommunicado regim. (APPENDIX 2).

-VII. DEATHS IN POLICE STATIONS

1993 was particularly tragic. In addition to the list of the tortured detainees, three of these detainees died in strange circumstances in Police establishments. These deaths provoked great social alarm and concern on account of the fact that they happened within a period of 37 days and each of the dead detainees was under the custody of a different police force.

The cases were as following:

JUAN CALVO AZABAL: He was arrested by the Basque Autonomous Police in Nanclares de la Oca on August 19, 1993 and died in Arkaute Headquarters in Alava nine hours later. The reason for the arrest was the supposed robbing of a car in Bilbao (Bizkaia) the same day. According to the forensic report, he died of a asphyxia syndrome caused by the defending aerosols used by the Basque Police. The corp presented several body injures. The autopsy reported the following injures:

Previous Exploration: 6 contusions, 13 beatings with truncheons, haematomas in testicles. Localization: feet fingers, legs, knees, abdomen, thorax, infra-clavicle region.

Later Exploration: 2 contusions, 18 beatings with truncheons, bruises due to pressure on the bottom, graze due to dragging with little stones encrusted in the back.

Left Arm: 7 contusions, 2 beatings with truncheons, graze due to dragging in elbow and back side of the forearm, injures in the fist, 1 cm. wide produced by a soft element.

Right Arm: 7 contusions, 2 beatings with truncheons, graze by dragging of the palm, in the fist there were similar marks as in the left.

Face: graze and bruises in the left side of the face and nose.

Head: Two bruised injures, inthe occipital and front-parietal area.

Knees: graze due to impact against a hard flat element or by pressure on this element against resistence.

We suggest that you ask for the available photographs of the autopsy.

When he was examined in Casualties in Santiago at 5.10 a.m., he shed strong smell of gas as well as eye irritation.

These facts caused the openning of previous inquiries with n. 1457/93 in the Examining Court n.3 in Vitoria. On August 30 of the same year, the subjudice rule was decreed and it was definitively lifted on November 3. On February 23, 1997 a sentence was passed in the County Court in Vitoria on the policemen of the Basque Autonomous Police due to an offence of criminal negligence. (APPENDIX 15).

GURUTZE YANCI IGARATEGI: Arrested by the Civil Guard in Urnieta (Gipuzkoa) on September 23, 1993. The reason of arrest was alleged collaboration with armed organization so she was enforced the incommunicado detention. She died at 4.40 a.m. on September 24, twenty six hours after her detention. The official reports of the autopsy state that the reason of her death was a coronary thrombosis although it was questioned by the expert Jorge L. Thomsen who attended it. In this expert’s view, the death was caused by an epileptic attack with possibility of physical violence on the part of third persons as cause of the said crisis.

Several people was detained with Gurutze who were taken to the same Civil Guard Headquarters. They all complained of ill-treatment during detention and show evidential marks of the received treatment. In fact, the Examining Magistrate of the National High Court himself agreed an extension of detention and solitary confinement but later changed his decision and decreed the inmediate release of the detainees in custody.

Her death brought the openning of inquiries in the Magistrate Court n. 2 in Colmenar Viejo (Madrid). Such proceedings include medical and autopsy reports which state that it is extremely strange to find coronary thrombosis in a woman at the age of 31 who was healthy and had no family background of precocious arteriosclerosis, as in this case.

The proceedings in course in the Magistrates Court n.2 in Colmenar Viejo were shelved and appealed by the accusation in the Second Section of the County Court in Madrid (Roll of the Section 117/94, record 3/93). This appeal was rejected on November 27, 1994 after its free stay of proceedings was agreed. Then, the private prosecuting counsels formulated Appeal the Supreme Court on January 2, 1995 which also rejected it in the same year. (APPENDIX 16)

XABIER KALPARSORO GOLMAIO: He was arrested in September 23, 1993 in Durango (Bizkaia) by the local Police. He was charged with an attempted robbery with a firearm. By a fax, the Judge of the National High Court Mr. Carlos Bueren ordered the Local Police to hand the detainee to the National Police in incommunicado detention with the accusation of being an ETA activist. Xabier Kalparsoro was transferred to Superior Headquarters of the National Police in Indautxu (Bilbao) from which he was taken to the Basurto Hospital at 2.40 p.m. on September 24 with a cranium-encephalic traumatism after having supposedly thrown himself from a window in the second floor of the mentioned police station. He died on September 26, as he did not come round from coma. Previous to these events, Mr. Kalparsoro wrote a bloodcurding letter in which he said that he had been kidnapped in July, taken to the mountains and tortured with audiovisual means of images and drugs by police in plain clothes who identified themselves as members of the Basque Autonomous Police. Then, he was released but he still thought he was being followed by the Police. In relation to these facts, inquiries were opened in the Magistrates Court n. 8 in Bilbao, which were finally shelved.

In the Magistrates Court n.1. in Bilbo, previous inquiries were opened in 1939/93. On December 11, 1993, the order of stay of proceedings was decreed by this Court, which was appealed by the plaintiff on December 17. On December 30, 1993, the defending counsel presented a writ by which a definitive shelving was demanded. On May 27, 1994, the County Court in Bizkaia agreed that it partially admitted the appeal and ordered the continuation of the proceedings under the accusation of negligence which resulted in death. Thus, the plaintiff to the suit defined facts and are awaiting the openning and holding of the hearing. The last contribution to this case was an anonimous writ in which anomalies in the search in cells are related. (APPENDIX 17).

-VIII. Conclusions

Thus, we find ourselves dealing with a system in which legislation (and its incommunicado detention), forensic surgeons (with deficient reports, in which when there is evidence of marks, these will never be accepted to be result of ill-treatment) and judges (with systematic orders of incommunicado detention and with no precautionary measures- 520 bis 3., systematic rejection of ill-treatment complaints, only based on forensic reports with no previous investigation). It can be added that in such cases where a sentence is passed on policemen, these are usually pardoned or even promoted and the disqualification sentences are never fullfiled. Besides, the Judges do not reject evidence obtained by coercion, as stated by the Committee on Human Rights in the UN. These are links of a system which warrants impunity of torture.

In our opinion, measures should be taken to erradicate torture by means of:

Legislative measures :

-The main measure would be the erradication of permanent exception regime as the incommunicado detention (Committee on Human Rights in the United Nations- CCPR/C/SR.1019 page 2 paragraph 3 - CCPR/C/79 Add. 61 page 3 paragraph 17.

-Guarantee of effective legal assistance from the very moment of detention.

-Right to appoint a lawyer. CCPR/C/79/Add. 61, page 3 paragraph 17.

-Interview with guarantee of confidentiality (CPT. II Report, paragraph 64.).

-Right to be examined by a trustworthy doctor (CCPT. II Report, paragraphs 67-68). The Committee Against Torture in the United Nations agrees that the medical examination should be made out of police establishments. (From its report A/48/Add.1., on November 9, 1993 in reference to Turkey).

We deem it necessary to take these legislative measures to eliminate any mistake in the judicial control on detentions, since we can always try to include preventive measures within incommunicado detention (As CPT tries to do) but we are not of the opinion that they can be effective unless they nullify the incommunicado detention itself.

APPENDIX 1

METHODS OF TORTURE

The statements and reports of torture that arrive at our Association are directed against the three different Law Enforcement Agencie, namely Civil Guard, National Police and Basque Autonomous Police. According to these statements, different performances during detentions is observed depending on the Police Force. Throughout years, there has been a clear evolution in methods of torture, which are more sophisticated everyday and intend to achieve their aim without leaving any trace on the body of the victim. Nowadays, marks on the body of a detainee implies that torture has been wrongly practised.

These testimonies share certain similarities. All the Police Forces resort to the so-called incommunicado detention and it is during this kind of detention that more reports on torture are made. In isolation, the detainee always makes the statement just before the end of the permitted maximum period, that is, in the evening before his statement in the National High Court. Until that moment, the detainee will not have any kind of contact with a lawyer. In the detainee’s words, the lawyer arrives at the police station after they are called by the Police itself and takes part in the last stage of the statement. However, he does not even have a say.

These detainees are kept in the operation centres of the Police Force in question. Afterwards, the National Police and Civil Guard take the detainees to Madrid and the Basque Autonomous Police take them to Gasteiz, where they have their operative centre.

CIVIL GUARD

According to the statements of the detaines in custody of the Civil Guard, these detentions are carried out very late at night, generally at home and with a wide Police Operation which surrounds several adjacent streets.

Once the person is detained, they are taken to the nearest police headquarters. Then, tthey are isolated and are shut in a cell where they spend several hours standing, looking at the wall until they are transferred to the headquarters of the Civil Guard in Madrid, usually General Headquarters of the Civil Guard. The time between detention and their transferral to Madrid is very short, never more than 24 hours.

Once in Madrid, the detainees say that their eyes are covered or their sight is impeded by any other means so they can rarely identify their torturers. During the days of incommunicado detention in these headquarters, they are subject to long interrogatories without the presence of any lawyer. They are object of different types of torture, but this Police Force chiefly focus on physical torture. Thus, we can single out the following types of physical torture according to what the tortured detainees state:

-Physical exercise, mainly press-ups and the obligation to stand facing the wall during long periods.

- "The bath" or method of asphyxiation by the immersion of the head in a recipient full of water, which can be clean or dirty.

- "The bag", or method of asphyxiation caused by the placing of a plastic bag over the head which is tightly fixed to the neck.

-Electricity, appliance of electric shocks in different parts of the body, which can be when the detainee is dressed or naked.

-Beatings on the head and genitals, with the hand or with any other element such as rolled newspapers.

-Hair snatching.

Should the detainee be a woman, vexations of sexual type must be added to the aforesaid kinds of torture. She is usually obliged to undress and she is even penetrated with strange objects in the vagine. This kind of practise has sometimes been denounced by some men who have been obliged to remain naked during interrogations and after introduced a stick in the anus.

According to the victims, it is the first hours of detention that the hardest interrogations are carried out, alterning or combining the above mentioned methods of torture. In these people’s words, during interrogations (that can even last 9 or 10 hours) there are also threats, directed both to a beloved person that will be detained or tortured or to themselves. The Association has come to know that death threats have even simulated executions.

In the short periods they spend in cells, they cannot have a rest since there is a lot of noise of openning and closing doors and in many cases police officers come into their cells to keep them awake.

Food is limited and scarce and they are rarely allowed to clean themselves in the washbasin. In some testimonies, detainees could not even go to the toilet.

NATIONAL POLICE

The detainees by this Police Force share similarities with the methods mentioned in the section concerning the Civil Guard.

According to their testimonies, they are first taken to headquarters in the Basque Country and after a few hours they are transferred to a Police station in Madrid, usually the General National Police Station.

During interrogations, there is a clear combination of the so-called physical and psychological methods to destroy the detainee and achieve their aim, which is usually a statement in which the detainee declares himself guilty or acusses others.

The detainees by this Police Force say that during interrogations, blows all over the body are common, mainly on the head with rolled-up papers. Another general practice is the placing of the plastic bag on the head to provoke asphixia. During these interrogations, the detainees state that they are obligued to stand facing the wall so they cannot see the faces of the policement interrogating them. They also say that a mask is used to cover their eyes.

ERTZAINTZA (Basque Autonomous Police)

Since this Police Force was created, the testimonies of torture on detainees have varied. Thus, detainees up to 1992 say that they used to apply physical torture, chiefly to cause physical exhaustion after long sessions of physical exercise such as press-ups combined with blowings. However, from 1992 on, the statements of torture arriving at our Association concerning this Police Force talk about physical exhaustion of the detainee by psychological means.

The detainees point out that detentions are usually very violent, as the policemen use their physical strength. If incommunicado detention is applied to the detainee, he is soon transferred to the police station in Arkaute (central office and school of the Force) where he remains until he is taken to Madrid. While the detainee is in solitary confinement, policemen repeat the same questions time and again so that the detainee can get confused: if he has affirmatively answered, policemen would say he had answered negatively and so on. After long sessions of interrogation, the detainees state that they do not know what they are saying nor even where they are. Interrogations are carried out by several policemen that have a list of questions or subjects. There are detainees who believe that in a near room, there is a team of agents monitoring the interrogations and ruling them from outside. This suspicion increases because, in the rooms of the interrogations, there is a wall of an great opaque glass that does not allow see the other side.

During these interrogations, the victims assert that they receive every kind of threats: death threats, threats that they are going to be taken out of the police station and make them dissapear without anyone noticing, threats of blows and beatings. The threats do not only aimed at the injure of the detainee but also at his beloved. They are told that friends or relatives are going to be detained and that they will make them suffer. In some cases, threats are accompanied with acustic means where the detainee hears or thinks he hears the voices and cries of the beloved that they previously threatened with detaining.

This section of threats also include threats of using of drugs. Regarding this section of drugs, there are detainees who assure that they are druged while in custody and some relate they have suffered hallucinations.

Detainees affirm that they lose notion of time and space since they are stopped from sleeping, interrogations are ceaseless, meals are at unusual times, etc.