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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 14 November 1994,
Adopts the following:
Decision on Admissibility
1. The authors of the initial communication are A. E. M. and C. B. L.,
citizens of Spain residing in Santurce in the Basque province, writing on
behalf of their son J. E. and his wife E. B., who are currently detained at
the Spanish prisons of Orense and Albacete, respectively. By power of
attorney of 31 December 1993, Mr. E. authorized his parents to act on his
behalf and on behalf of his wife.
The Facts as Submitted by the Authors:
2.1 The authors, who reside in the same apartment complex as did the alleged
victims, claim that on 29 January 1992, at six in the morning, members of
the Spanish police blew up the door of J. E.'s apartment and arrested him
and his wife in their bedroom. J. E. was taken to the Guardia Civil in
Bilbao and later Madrid and kept incommunicado for five days, during which
he was allegedly subjected to torture and ill treatment, including beatings
to the head, electrical shocks to the head, testicles and other parts of the
body. His head was allegedly put into a plastic bag until he had almost been
asphyxiated. His wife remained in the apartment while the police officers
carried out a search, which lasted until approximately 9.30 in the morning,
at which time she too was taken into custody. Upon arrival at the police
station, she was allegedly hooded and left in a room for a long period of
time, she was undressed by force and handcuffed. On 30 January she and her
husband were driven to Madrid, where beatings and electric shocks allegedly
continued during 96 hours of intermittent interrogation. As a consequence of
the maltreatment her menstrual period commenced two weeks ahead of time, but
she was not allowed to clean herself. Meanwhile Mr. E. was allegedly hung
upside down from a lamp, until he lost consciousness, and a Guardia Civil
officer forced a revolver barrel into his mouth and shot, without a bullet.
Psychotropic drugs were allegedly administered to him with his food, with
the result that he started to hallucinate.
2.2 With regard to the exhaustion of domestic remedies, it is stated that
the alleged victims made reference to the alleged tortures when they were
brought before Judge I. M. C. It is reported that once J. E. removed his
shoe in front of the judge in order to show the black points left by the
instruments utilized when administering electric shocks. The authors appeal
to the Committee against Torture with the specific complaint that the
competent judicial authorities in Spain, in particular the judges and
forensic experts, have failed to investigate the alleged violations, thus
permitting the torturers to operate with impunity.
2.3 During the period of detention of the alleged victims and of 14 other
persons in Bilbao, an official of the World Organization against Torture
wanted to visit them, but permission was reportedly denied.
2.4 On 12 November 1993 Mr. E. was allegedly subjected to ill treatment at
Orense prison. An official investigation is in progress.
State Party's Observations:
3.1 By submissions of 1 September, 17 December 1993, 24 January and 19 April
1994, the State party argues that the communication is inadmissible under
article 22, paragraph 5 (b), of the Convention, because the authors have not
exhausted domestic remedies. The State party states that the authors have
seven lawyers and that they did not file any complaint with the Spanish
authorities, as provided for under Spanish law. However, the State party
submits that Spanish courts started ex officio investigations, even if the
alleged victims did not do so. An ex officio investigation into the possible
ill treatment of Mrs. E. was conducted under case No. 205/92, including
through the examination of contemporary medical reports. The Juzgado de
Instrucción No. 44 invited Mrs. E. to participate in this judicial
investigation, but she declined. The investigation failed to reveal any
misconduct on the part of the Guardia Civil and was closed in January 1993.
3.2 With regard to the alleged ill treatment of Mr. E. on 12 November 1993,
the State party submits that Mr. E. filed a complaint with the Juzgado de
Guardia de Leon on 27 November 1993, 15 days after the alleged events. The
matter is currently under judicial investigation under No. 865/93. The State
party forwards copies of the relevant documents.
3.3 As a further ground for inadmissibility, the State party refers to the
authors' submission to the effect that the same complaint had been forwarded
to the European Commission of Human Rights and to the European Committee for
the Prevention of Torture, both in Strasbourg. Examination by these bodies
would render the communication inadmissible under article 22, paragraph 5
(a), of the Convention.
3.4 The State party denies the allegations that Mr. and Mrs. E. were
subjected to torture or ill treatment upon their arrest in January 1992 or
subsequently during their detention. It submits copies of the reports of the
medical doctors who examined them every day during the first five days of
detention, as well as subsequent reports.
Author's Comments:
4.1 With regard to the simultaneous submission of the same matter to two
European instances of investigation or settlement, the authors claim not to
know whether those bodies are currently investigating the cases of Mr. and
Mrs. E.
4.2 With regard to the exhaustion of domestic remedies, the authors refer to
the cases No. 205/92 concerning Mrs. E., before the Juzgado de Instrucción
No. 44 of Madrid and No. 113/92 concerning Mr. E., before the Juzgado de
Instrucción of Alcalá de Henares, and Nos. 482/92 and 211/94, before the
Juzgado de Instrucción No. 40 of Madrid. The authors claim that the
investigations are not being conducted with due diligence. With regard to
the closing of the investigation in case No. 205/92, Mrs. E. is endeavouring
to obtain a formal notification with a view to reopening the case.
Issues and Proceedings Before the Committee:
5.1 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention.
5.2 The Committee has ascertained, as it is required to do under article 22,
paragraph 5 (a), of the Convention, that the same matter has not been and is
not being examined under another procedure of international investigation or
settlement.
5.3 Article 22, paragraph 5 (b), of the Convention precludes the Committee
from considering any communication unless it has ascertained that all
available domestic remedies have been exhausted. The authors concede that
two matters are currently under judicial investigation in Spain.
Accordingly, the Committee finds that the requirements of article 2,
paragraph 5 (b), of the Convention have not been met.
6. The Committee therefore decides:
(a) that the communication is inadmissible;
(b) that this decision may be reviewed under rule 109 of the Committee's
rules of procedure upon receipt of a written request by or on behalf of the
alleged victims containing information to the effect that the reasons for
inadmissibility no longer apply;
(c) that this decision shall be communicated to the authors and to the State
party.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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