Allegations of torture must be fully and effectively investigated

Sodupe v Spain, UN Doc CAT/C/48/D/453/2011 (28 June 2012) Summary

The UN Committee Against Torture has found that Spain had failed to ensure that its courts proceeded to a prompt and impartial investigation, where there is reasonable ground to believe that an act of torture has been committed in its jurisdiction, in violation of article 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, the Committee found no violation of articles 14 and 15 of the Convention.

Facts

Background

On 24 October 2002, the complainant was arrested by Spanish police on charges connected with sabotage and damage to public property. It was determined that the charges fell within the scope of Spanish anti-terrorism laws and that therefore the complainant should be held incommunicado, which would deprive him of contact with family members, a lawyer and a doctor trusted by the detainee.

The complainant was held incommunicado in detention at the police station for three days.  During that time he alleges to have been subjected to torture and ill-treatment, which included being forced to stand in uncomfortable positions, being beaten even when he fainted, being deprived of sleep, food and water except when forced to drink, and being subjected to death threats and threats to harm his family. As a result of the alleged torture, the complainant made self-incriminating statements whereby he confessed to being guilty of association with and membership in a terrorist organisation in connection with the murder of a Spanish High Court judge.

On 29 January 2003, the complainant lodged a complaint of torture and ill-treatment which was examined by the Second Examining Magistrate’s Court of Vitoria-Gasteiz. The Court ordered a stay of proceedings based on forensic medical reports which did not support the complainant’s allegations. The Provincial High Court of Álava also dismissed the complainant’s appeal on 30 March 2004 based on the same medical reports. The complainant had requested further evidence to be taken in both Courts, but those requests were turned down. In proceedings before the National High Court in November 2005, the complainant again alleged that he had incriminated himself as a result of torture and ill-treatment. However, that Court (and also the Supreme Court on the complainant’s application for cassation on 4 December 2006) did not take any measures to investigate the complainant’s allegations. On 12 December 2005, the complainant was found guilty of terrorist murder and was sentenced to 26 years in prison.

Claims made under the Convention

The complainant alleged that Spain:

• violated article 12 of the Convention because the Spanish courts did not carry out a prompt and impartial investigation of his claim to being subjected to torture and ill-treatment by the Spanish police. Despite his repeated requests for evidence other than forensic medical reports to be made available to the courts, his complaint was dismissed by the courts without other evidence being admitted or further investigation;
• violated article 14 of the Convention because, as a result of the courts’ failure to enquire as to his allegations of torture and ill-treatment, Spain failed to redress the wrong he had suffered as a victim of torture and to take steps to ensure that such acts did not happen again; and
• violated article 15 of the Convention because the trial leading to his conviction was unfair in the sense that his self-incriminating statements, which were obtained under torture, were used as proof leading to his conviction.

Decision

The Committee found that the complainant had exhausted all available domestic remedies and therefore his communication to the Committee was admissible. The complainant had informed the courts during criminal proceedings that he had been tortured, and torture is an offence that must be prosecuted ex officio under article 12 of the Convention.

Turning to the complainant’s substantive allegations, the Committee identified various facts in the complainant’s court history which evidenced a failure by the courts to investigate the complainant’s allegations in accordance with article 12. These include court decisions being based solely on evidence from the complainant’s forensic medical reports and the courts’ rejection of the complainant’s requests for other evidence to be taken. According to the Committee, there was nothing to justify the courts’ failure to take account of evidence aside from the forensic medical reports. It held that whilst such reports are important in determining whether acts of torture had occurred, they are often insufficient and should be compared with other sources of information.

The Committee found that these facts revealed a violation of article 12 of the Convention.  Pursuant to article 12, the Committee considered that Spain is under an obligation to provide the complainant with an effective remedy for its violation, including a full and thorough investigation of his claims, as well as an obligation to prevent similar violations in the future.

The Committee did not find that Spain had violated article 15 of the Convention. The Committee concluded that substantial weight had been attributed to the complainant’s self-incriminating statement in the proceedings against him in the National High Court and the Supreme Court. However, the complainant did not provide enough information to permit it to conclude that his self-incriminating statement was “in all probability” made as a result of torture. For the same reason, the Committee also found that there was no violation of article 14 of the Convention.

Relevance to the Victorian Charter

There is no directly equivalent provision in the Victorian Charter to articles 12, 14 or 15 of the Convention concerning any judicial procedures which must flow from an allegation of torture. The Charter contains the following provisions which may apply should similar allegations arise in Victoria:

• section 10 provides a broad prohibition on torture and cruel, inhuman or degrading treatment;
• section 22 protects the right to humane and dignified treatment of persons who are deprived of their liberty;
• section 25 presumes a person to be innocent until proven guilty in criminal proceedings; and
• section 24 provides a person with a right to a fair hearing.

It is important to note, however, that unlike the Convention provisions, the obligations imposed on public authorities by the Charter do not apply to courts and tribunals unless they are acting in an administrative capacity. It may be, therefore, that this decision is of limited relevance to the interpretation of the Charter provisions, except to the extent that it applies to non-judicial bodies.

The decision is available online at: http://daccess-ods.un.org/TMP/4456746.87623978.html

Andrew Liu is a Law Graduate at Allens