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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 9 November 1999,
Having concluded its consideration of communication No. 63/1997, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication and the State party,
Adopts the following decision:
1.1 The author of the communication is Josu Arkauz Arana, a Spanish
national. He is represented by counsel. Mr. Arkauz applied to the Committee
on 16 December 1996 claiming to be a victim of violations by France of
articles 3 and 16 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment because of his deportation to Spain.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the communication to the attention of the State party on
13 January 1997. At the same time, acting under rule 108, paragraph 9, of
its rules of procedure, the Committee requested the State party not to expel
Mr. Arkauz to Spain while his communication was being considered.
The Facts as Submitted by the Author
2.1 The author, who is of Basque origin, states that he left Spain in 1983
following numerous arrests of persons reportedly belonging to ETA, the
Basque separatist movement, by the security forces in his native village and
nearby. Many of the persons arrested, some of whom were his childhood
friends, were subjected to torture. During the interrogations and torture
sessions, the name of Josu Arkauz Arana had been one of those most
frequently mentioned. Sensing that he was a wanted person and in order to
avoid being tortured, he fled. In 1984 his brother was arrested. In the
course of several torture sessions the members of the security forces asked
the latter questions about the author and said that Josu Arkauz Arana would
be executed by the Anti-Terrorist Liberation Groups (GAL).
2.2 Several murders of Basque refugees and attempts on the lives of others
took place close to where the author was working in Bayonne. The author
further states that the officer in charge of the Biarritz police station
summoned him in late 1984 to notify him of his fears that an attempt on his
life was being prepared and that the author's administrative file, which
contained all the information necessary to locate him, had been stolen. He
was therefore obliged to leave his work and lead a clandestine existence.
Throughout the period of his concealment, his relatives and friends were
continually harassed by the Spanish security forces. In June 1987 his
brother-in-law was arrested and tortured in an effort to make him reveal the
author's whereabouts.
2.3 In March 1991 the author was arrested on the charge of belonging to ETA
and sentenced to eight years' imprisonment for criminal conspiracy
("association de malfaiteurs"). He began serving his sentence in Saint-Maur
prison and was due to be released on 13 January 1997. However, on 10 July
1992, he was further sentenced to a three-year ban from French territory. He
filed an appeal against the decision to ban him with the Paris Court of
Major Jurisdiction in October 1996, but no action was taken.
2.4 On 15 November 1996 the Ministry of the Interior commenced a proceeding
for the author's deportation from French territory. A deportation order can
be enforced by the administration ex officio and means that the person
concerned is automatically taken to the border. The author applied to the
Administrative Court of Limoges on 13 December 1996 requesting the annulment
of the deportation order which might be made out against him and a stay of
execution of such an order if it were to be issued. However, his application
for a stay of execution was rejected by a ruling of 15 January 1997, the
court having taken the view that handing over the author would not be likely
to have irreversible consequences for him. An appeal from this ruling was
not possible because the deportation measure had already been implemented.
2.5 On 10 December 1996 the author began a hunger strike to protest against
his deportation. Later, because of his deteriorating health, the author was
transferred to the local prison at Fresnes, in the Paris region, where he
again went on strike, refusing to take liquids.
2.6 On 17 December 1996 the author was informed that the Deportation Board
of the Indre Prefecture had rendered an opinion in favour of his
deportation, considering that his presence in French territory constituted a
serious threat to public order. The Board did, however, remind the Ministry
of the Interior of the law stipulating that an alien could not be removed to
another country where his life or liberty might be threatened or where he
could be exposed to treatment contrary to article 3 of the European
Convention on Human Rights. Following this opinion, a ministerial
deportation order was issued on 13 January 1997 and communicated that day to
the author. He was at the same time notified of a decision indicating that
the order of deportation to Spain was being put into effect. The deportation
measure was implemented the same day, after a medical examination had
concluded that Mr. Arkauz could be transported by car to the Spanish border.
2.7 By a letter of 17 March 1997 the author informed the Committee that his
deportation to Spain had taken place on 13 January 1997. He reported having
been ill-treated and threatened by the French police and described the
incidents which occurred in Spain after his deportation.
2.8 The author claims to have suffered greatly during the journey to Spain
because of his extreme weakness. He states that while being driven from
Fresnes to the Spanish border, a distance of nearly 1,000 kilometres covered
in seven hours, he was seated between two police officers, with his hands
cuffed behind his back, and he experienced very considerable back pain
because he suffers from degenerative discopathy. The police officers are
said to have stopped at one point and ordered Mr. Arkauz to get out of the
vehicle. Since he was unable to move, the police officers reportedly threw
him to the ground and beat him. He adds that the police officers intimidated
him throughout the journey and that the treatment to which he was subjected
is contrary to article 16 of the Convention.
2.9 As soon as he had been handed over to the Spanish Civil Guard he was
placed in incommunicado detention. A forensic physician is said to have
examined him and pronounced him fit to travel on to Madrid under certain
conditions, since his health had been very much affected by the hunger
strike. He states that he was slapped on the ears and about the head during
the journey of about 500 kilometres to Madrid. He also claims to have been
constantly told that he would later be tortured and killed. On entering
Madrid, the officials are said to have thrust his head between his knees so
that he would not know where he was being taken, namely to the Civil Guard
Headquarters in Madrid. He says that he fainted from exhaustion. When
revived, he was reportedly subjected to long interrogation sessions. He was
allegedly forced to remain seated, with his legs apart, in a position that
caused him very considerable back pain. With his eyes covered, he was
reportedly slapped all over his body. He was also allegedly subjected to
loud hand claps and whistling close to his ears and told in detail about the
methods and long sessions of torture that would be inflicted on him. At one
point, the guards are said to have ripped his clothes off, while continuing
to beat him. Later, with some guards holding his legs and others his arms,
he was allegedly subjected to "la bolsa" [FN1] and at the same time beaten
on the testicles. He reportedly then lost consciousness. When revived and
still masked, he was reportedly again seated on a chair, with his legs
spread apart and his arms held to his legs. The guards allegedly brought
electrodes close to him. As he tried to move away, he reportedly received a
direct shock.
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[FN1] This form of torture consists in covering the head with a plastic bag
to cause asphyxia.
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2.10 Some officials reportedly tried to persuade him to cooperate with them,
using emotional arguments concerning his wife and two children, but the
author says that he refused to cooperate. He was reportedly then examined by
a doctor. After the doctor left, he was reportedly masked again and beaten
about the ears and the head. Another examination was made by a doctor, who
reportedly stated that the author was close to suffering from tachycardia.
The interrogations and threats continued and a third visit was made by the
doctor some hours later. Meanwhile, his wife met the judge on 15 January
1997. She expressed fears concerning her husband's state of health and asked
to see him, but this request was denied. On the forensic physician's advice,
the author was transferred to a hospital. After being injected with serum
and undergoing various tests, he was returned to Civil Guard Headquarters.
During the day of 16 January, out of fear of reprisals, he signed a
statement before a designated lawyer which the Civil Guard officers had
themselves dictated. That evening he was brought before the judge, who had
just lifted the incommunicado order. He was also examined by a forensic
physician appointed by the family. This physician concluded that the
allegations of ill-treatment represented coherent testimony. [FN2] On 17
January 1997, Mr. Arkauz was visited by a delegation of the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) [FN3] in Soto del Real prison. On 10 March 1997 he filed
a complaint of torture.
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[FN2] A copy of the medical report is attached to the communication.
[FN3] As of the time of adoption of these Views the CPT report on this visit
had not been published.
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The Complaint
3.1 In his communication of 16 December 1996 the author stated that his
forcible return to Spain and handing over to the Spanish security forces
constituted a violation by France of articles 3 and 16 of the Convention
against Torture.
3.2 The author referred first to article 22, paragraph 5 (b), of the
Convention and claimed that the domestic remedies available against warrants
of deportation were neither useful nor effective, since they had no
suspensive effect and the courts would reach a decision long after the
deportation had been carried out. In addition, the procedures were
unreasonably prolonged. The admissibility requirement of exhaustion of
domestic remedies was therefore said not to be applicable in this case.
3.3 The author submitted that his origin, political affiliation and
conviction in France and the threats directed against him, his family and
friends provided substantial grounds for fearing that he would be mistreated
in custody and that the Spanish police would use every possible means,
including torture, to obtain information about ETA activities from him. The
danger was all the more real because the author had been portrayed in the
press by the Spanish authorities as an ETA leader.
3.4 The handing-over of the author to the Spanish security forces was a
"disguised extradition" for the purpose of his incarceration and conviction
in Spain. It was an administrative procedure that did not arise from an
extradition request made by the Spanish judicial authorities. The five days
of police custody and incommunicado detention to which Mr. Arkauz could be
subjected under the Spanish law on terrorism would be used to obtain from
him the confessions needed for him to be charged. During this period he
would not be given the protection of the judicial authorities to which he
would have been entitled had he been extradited. The lack of jurisdictional
guarantees thus increased the risk of torture.
3.5 In support of his claims, the author mentioned the cases of several
Basque prisoners who had allegedly been tortured by the Spanish police
between 1986 and 1996 after being expelled from French territory and handed
over to the Spanish security forces at the border. In addition, he cited the
reports of various international bodies and non-governmental organizations
which had expressed their concern at the use of torture and ill-treatment in
Spain and at the Spanish legislation enabling persons suspected of belonging
to or collaborating with armed groups to be held incommunicado for five
days, as well as regarding the impunity apparently enjoyed by the
perpetrators of acts of torture. The combination of these various factors
(existence of an administrative practice, serious deficiencies in the
protection of persons deprived of their liberty and lack of punishment for
officials employing torture) provided substantial grounds for believing that
the author was in real danger of being subjected to torture. Lastly, he
expressed his fears regarding the conditions of detention to which he would
be submitted if he was imprisoned in Spain.
3.6 In his communication of 16 December 1996 the author also stated that
during his transfer to the border there was a risk that he would be
subjected to ill-treatment contrary to article 16 of the Convention, since
the police could use force and he would be completely isolated from his
family and counsel.
3.7 In his letter of 17 March 1997, the author reiterates that there was a
violation by the State party of articles 3 and 16 of the Convention and,
subsidiarily, of articles 2 and 22. In seeking to justify his surrender to
the Spanish security forces, France is said to have violated article 2 of
the Convention. France reportedly sought to justify that action on the basis
of necessary solidarity between European States and cooperation against
terrorism. However, neither the situation of acute conflict prevailing in
the Basque country, nor solidarity between European States, nor the fight
against terrorism can justify the practice of torture by the Spanish
security forces.
3.8 The author further submits that, by proceeding with his deportation and
surrendering him to the Spanish security forces, despite the Committee's
request not to expel him, the State party violated article 22 of the
Convention because the individual remedy provided for by that article was
rendered inoperative. He believes that the State party's attitude under
those circumstances amounts to a denial of the binding nature of the
Convention.
3.9 The author also criticizes the French authorities for the late
notification of the deportation order and its immediate execution, the sole
purpose of which, in his view, was to deprive him of any contact with his
family and counsel, to prevent him from effectively preparing his defence
and to place him at a psychological disadvantage. He submits that it was
consequently impossible in practice for him to enter any appeal between the
time of notification of the deportation order and its immediate execution.
State Party's Observations on Admissibility
4.1 In a reply dated 31 October 1997, the State party disputes the
admissibility of the communication. It indicates that on 13 January 1997,
the day on which the deportation order was issued and carried out, it had
not known of the Committee's request for a stay of execution, which was
received on 14 January 1997, and it therefore could not have taken it into
consideration. It adds that the immediate and rapid expulsion was necessary
for reasons of public order.
4.2 The State party considers that the communication is inadmissible on the
ground of non-exhaustion of domestic remedies. If, in view of the nature of
the alleged violation, the Committee were nevertheless to consider that the
remedies actually sought before the administrative and judicial courts were
not useful since they had no suspensive effect, it should be pointed out
that other channels of recourse were open to the author. When notified of
the deportation order and the order indicating Spain as the country of
return, he could have applied to the administrative court for a stay of
execution or for effect to be given to article L.10 of the Code of
Administrative Courts and Administrative Courts of Appeal. The author could
also, when notified of the two orders, have complained of a flagrant
irregularity ("voie de fait") to the judicial court if he believed that his
transfer to Spain had no legal justification and violated a fundamental
freedom. According to the State party, such a remedy could have proved
effective in view of the rapidity with which the judicial court is required
to act and its recognized authority to put an end to a situation which
constitutes a flagrant irregularity.
4.3 The State party further specifies that, in order to obtain a rapid
decision, the complainant could have applied to the interim relief judge on
the basis of article 485 of the new Code of Civil Procedure. [FN4] It grants
that an application for interim relief is admissible only in support of an
application in the main action, but argues that such an application could in
the present case have been made for damages for the injury suffered as a
result of the irregularity. Furthermore, the Prefect who signed the orders
of deportation and return to Spain could not have opposed consideration of
such an application by the judicial court pursuant to article 136 of the
Code of Criminal Procedure. [FN5]
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[FN4] This article states that "an application for interim relief is made by
way of summons to a hearing held on the customary day and at the customary
time for such proceedings. If greater speed is required, however, the
interim relief judge may allow a summons to be given effect at the time
indicated, even on public holidays or non-working days, either in chambers
or at his place of residence, in an open hearing".
[FN5] This article states that "in all cases of infringement of the freedom
of the individual, the dispute cannot be taken up by the administrative
authority and the judicial courts always have exclusive jurisdiction".
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Comments by the Author
5.1 In his comments on the State party's reply, the author recalls the facts
and procedures explained in the previous communication and reiterates his
observations concerning the admissibility of the communication. With regard
to the merits of the case, he recalls his claims concerning the personal
threat to him of his being deported to Spain, and the torture and
ill-treatment he underwent.
5.2 With reference to the request for a stay of execution of the deportation
order made by the Committee on 13 January 1997, the author disputes the
claim by the French Government that it had not received the request until 14
January 1997 and therefore did not have time to take it into consideration.
In fact, the Government's representative was informed by fax of the request
made by the Committee on 13 January 1997, well before the author was
notified of the deportation order late in the day on 13 January 1997. The
author also says that he was handed over to the Civil Guard by the French
police only on 14 January 1997. During the transfer, the French Government
could, according to the author, have contacted its officials and deferred
deportation.
5.3 The author further argues that even if the French Government had not
received the Committee's request until 14 January 1997, it had the
obligation, on receiving it, under article 3 of the Convention, to intercede
with the Spanish authorities, through diplomatic channels, for example, to
ensure that the author was protected against any possible ill-treatment. He
specifies that he was tortured continuously up to 16 January 1997, long
after the French authorities had received the Committee's request.
5.4 The author also contests the State party's claim that his immediate and
rapid deportation was necessary for reasons of public order. Although he was
in Fresnes prison, the French authorities chose to have him taken to the
Franco-Spanish border, which was the furthest from Paris, yet as a European
citizen Mr. Arkauz was entitled to stay and move freely in any part of the
European Union, including countries with much less distant borders.
According to the author, this is further evidence of the fact that the
French authorities deliberately and consciously put him in the hands of the
Spanish security forces.
5.5 With regard to domestic remedies, the author first of all submits that
the rule of the exhaustion of domestic remedies concerns available, i.e.
accessible, remedies. However, he was prevented from having access to the
available remedies. The deportation order was carried out immediately by the
French police, who allegedly forbade him to warn his wife and counsel. It
would thus have been physically impossible for him to communicate with them
to inform them that he had been notified of the deportation order and to ask
them to file an immediate appeal against his deportation. Furthermore, the
French authorities allegedly refused to give them any information on what
had happened to him.
5.6 Secondly, Mr. Arkauz argues that, under article 22, paragraph 5 (b), of
the Convention, the rule of the exhaustion of domestic remedies does not
apply when their application is unreasonably prolonged. He adds that
domestic remedies against deportation must have an immediate and suspensive
effect. In the present case, however, no judge could have made a ruling
within a "reasonable" time, since the decisions in question were enforced
immediately the person concerned had been notified of them.
5.7 Thirdly, Mr. Arkauz submits that, under article 22, paragraph 5 (b), the
rule of the exhaustion of remedies concerns effective and adequate remedies,
and therefore does not apply if the remedies are unlikely to bring relief to
the individual concerned. In the present case, neither the administrative
remedy nor the judicial remedy proposed by the State party can be considered
effective or adequate.
5.8 As regards the administrative remedy, the author points out that, as a
preventive measure, he had applied to the Administrative Court of Limoges
against his deportation and that the court had reached a decision on that
application only after the deportation had been carried out. In response to
the State party's argument that he could have reapplied to the
administrative court, on being notified of the deportation order and of the
order indicating Spain as the country of return, for a stay of execution or
for the application of article L.10 of the Code of Administrative Courts and
Administrative Courts of Appeal, Mr. Arkauz states that this remedy would
have been no more effective than its predecessor.
5.9 As regards the judicial remedy, the author contests the theory of
flagrant irregularity put forward by the State party. He states that this
theory is applicable in French law only under exceptional circumstances, in
particular when the administration has taken a decision which manifestly
cannot be related to a power conferred upon it or when it has enforced a
decision of its own volition although it manifestly did not have the
authority to do so, which is not the case in the present instance. Mr.
Arkauz quotes rulings of the Court of Conflicts to the effect that neither a
deportation decision, even if illegal, nor a decision to enforce it may be
termed flagrant irregularities, and hence only the administrative courts
have jurisdiction in such matters.
The Committee's Decision on Admissibility
6.1 At its twentieth session the Committee considered the question of the
admissibility of the communication. It ascertained that the same matter had
not been, and was not being, examined under another procedure of
international investigation or settlement. Insofar as the exhaustion of
domestic remedies is concerned, the Committee noted that no decision
regarding the application to the administrative court requesting the
suspension of the deportation measure which might have been taken against
the author had been reached when the measure was enforced. Furthermore, an
appeal against the ministerial deportation order issued in respect of the
complainant on 13 January 1997 would not have been effective or even
possible, since it would not have had a suspensive effect and the
deportation measure was enforced immediately following notification thereof,
leaving the person concerned no time to seek a remedy. The Committee
therefore found that article 22, paragraph 5 (b), did not preclude it from
declaring the communication admissible.
6.2 Accordingly, the Committee decided on 19 May 1998 that the communication
was admissible.
Observations by the State Party on the Committee's Decision Declaring the
Communication Admissible
7.1 In a reply dated 4 January 1999 the State party provides information
concerning the question of the exhaustion of domestic remedies. It maintains
that the author's application to the Administrative Court of Limoges cannot
be considered to be relevant, since it does not concern the decision
challenged before the Committee. That application, filed on 16 December 1996
in the court registry, was directed not against the deportation measure in
dispute, which had not yet been taken, but against a deportation measure
that "might" have been taken. That wording alone was sufficient to render
the application by Mr. Arkauz inadmissible, as the practice of the
administrative courts consistently requires complainants to challenge
current and existing decisions. Therefore, the fact that no ruling had been
made on the application by 13 January 1997, when the deportation order was
issued, does not appear to be decisive in the present case. The judgement
was reached two days later, i.e. less than a month after registration of the
application. The rendering of this court decision was obviously not a matter
of the greatest urgency, since it related not to a current but to a possible
measure.
7.2 The author failed to enter an appeal against the ministerial order of 13
January 1997 calling for his deportation from French territory and against
the decision specifying Spain as the country of destination. An application
for a stay of execution under article L.10 of the Code of Administrative
Courts and Administrative Courts of Appeal, a possibility of which the
complainant was clearly not unaware, was incontestably the appropriate and
available remedy. It was not, however, used. The State party therefore
submits that the Committee should declare the communication inadmissible
under rule 110, paragraph 6, of its rules of procedure.
7.3 The State party argues that the execution of the deportation measure in
question in no way stemmed from a desire on the part of the Government to
obviate the right of recourse available to the person concerned, both at
national and international level. More specifically as regards the
Committee's recommendation pursuant to rule 108 of its rules of procedure,
it was physically impossible for the Government to have known on 13 January
1997, the day on which the deportation order was issued and put into effect,
of the request for a stay of execution made by the Committee in its letter
of 13 January 1997, that letter having been received the following day at
the Permanent Mission of France to the United Nations in Geneva, as attested
by the stamp placed on the said document when it arrived. It was therefore
impossible for the request to be taken into consideration before the
execution of the measure.
7.4 The deportation measure was implemented on 13 January 1997 since on that
date the author had paid the sum he owed to the Treasury following his court
conviction and there was then no reason, bearing in mind the threat that his
presence would represent for public order after his release, to defer a
decision to call for and proceed with his deportation. Although the author
claims that it was physically impossible for him to enter an appeal, he
offers no proof of this, and he certainly does not deny that the notice of
the deportation order, which he refused to sign, included information about
the procedures and time-limits for an appeal.
Comments by the Author
8.1 The author states that when he was notified of the deportation order and
of the decision indicating Spain as the country of destination, he was
prevented by the authorities from communicating with his wife and counsel.
Furthermore, when the latter asked the authorities for news about the
author, no information was given to them. Thus, contrary to the State
party's contention, it was made impossible for the author, after
notification of the deportation order and before its execution, to apply for
a remedy, to be brought before a person capable of receiving such an
application or to communicate with persons who could have acted in his
place.
8.2 The author indicates that the applications made to the Administrative
Court of Limoges were referred, on 27 July 1998, for consideration by the
Administrative Court of Pau, which rendered its judgement on 4 February
1999. The judgement states that while at the time of its submission the
request was premature, the issuance of the orders of 13 January 1997 calling
for the deportation of Mr. Arkauz and his return to Spain had the effect of
regularizing the request. The Court also found the handing over of the
author to the Spanish security forces to be illegal and therefore annulled
that measure. However, an appeal to a French administrative court has no
suspensive effect and the Administrative Court of Pau did not reach a
decision on the author's request until two years after the actual
implementation of the deportation order. The finding of the author's
surrender to be illegal therefore has only a symbolic effect in the
circumstances of the present case.
8.3 Concerning the Committee's request for the suspension of the deportation
order, the author reiterates the arguments he had put forward in that
connection. [FN6]
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[FN6] See paras. 5.2 and 5.3.
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State Party's Oberservations on the Merits
9.1 The State party notes that, on his arrival in France, the author was
given temporary permits to stay as an asylum seeker but the French Office
for the Protection of Refugees and Stateless Persons (OFPRA) and the Refugee
Appeals Board rejected his asylum request in 1981. Thereafter, he neither
reapplied for refugee status, as he could have done, nor looked for another
country prepared to accept him, although his situation was irregular and he
knew that he might be subject to an enforceable measure of banishment. In
1992 he was sentenced to eight years' imprisonment, a ten-year prohibition
on residence and a three-year ban from French territory for conspiring with
others to commit one or more offences, as well as for illegally bearing
weapons, keeping explosives and munitions and using false administrative
documents. That conviction automatically gave rise to the possibility of
deportation.
9.2 The State party indicates that the real risks mentioned by the author
were evaluated by the national authorities prior to implementation of the
deportation procedure, according to the criteria defined in article 3,
paragraph 2, of the Convention.
9.3 Two main points led the administration to believe that there was nothing
to prevent implementation of the deportation measure. Firstly, the
specialized bodies responsible for determining eligibility for political
refugee status had rejected the author's application in 1981, feeling that
the fears of persecution alleged by him were unfounded. Secondly, in view of
the commitments made by Spain regarding the protection of fundamental
freedoms, the French Government, although certainly not unaware that the
person concerned might be subject to criminal prosecution in that country,
could legitimately feel that there were no substantial grounds for believing
that the author was in danger of being tortured. The legitimacy of that
position was confirmed by the European Commission of Human Rights, which, in
its inadmissibility decisions of 1998 in two cases where the points of fact
and law were perfectly comparable, considered that the French Government had
no substantial grounds for believing that the complainants would be
subjected to torture in Spain. The Commission noted that there was a
presumption favourable to that country concerning respect for human rights,
in particular on account of its accession to the European Convention, the
International Covenant on Civil and Political Rights and the Optional
Protocol thereto. It also made reference to the report of the European
Committee for the Prevention of Torture, which stated that torture could not
be regarded as common practice in Spain.
9.4 The State party also indicates that, before being taken to the border,
Mr. Arkauz underwent a medical examination, which concluded that he was in a
fit state to be deported, and that after his arrest and detention by the
Spanish authorities he was again seen by a doctor. Furthermore, the
procedure initiated in Spain was conducted in accordance with the
instructions of the examining magistrate who had issued international arrest
warrants and authorized the transfer of Mr. Arkauz to Civil Guard
Headquarters in Madrid, so that he could be heard in the presence of a
lawyer.
9.5 If the author had indeed been the victim of acts contrary to article 3
of the Convention, a supposition which might be verified by the proceedings
under way in Spain, those acts could only be regarded as having been
committed by isolated individuals in breach of the guidelines laid down by
the Spanish State. As such, they could not have been foreseen and the French
Government cannot be blamed for having neither suspected nor prevented such
an outcome.
9.6 For all the above reasons, no failure to comply with the provisions of
article 3 of the Convention could be deemed to have been established.
9.7 As to the claim of a violation of article 16 of the Convention, the
State party submits that the author cannot effectively invoke the provisions
set forth in that article, which are inapplicable because the territory in
which the violations of article 3 of the Convention were allegedly committed
is not under the jurisdiction of the French State.
Comments by the Author
10.1 The author reiterates that there were substantial grounds for believing
that he would be in personal danger of being subjected to torture if he was
deported to Spain. The existence of such a danger was confirmed by the
following facts: the author and his family had been the targets of threats
and harassment; the Anti-Terrorist Liberation Groups (GAL) were preparing an
attempt on his life; and he had been handed over by the French police to
Civil Guard personnel from the anti-terrorist sections of the Intxaurrondo
barracks, which had been publicly accused, inter alia, of committing acts of
torture. Furthermore, during his interrogation in January 1997 the Civil
Guard personnel confirmed to him that they had prepared an assassination
attempt against him while he was living in Bayonne; and he had been
portrayed by the Spanish authorities as an important figure in ETA.
10.2 The author again states that the length and conditions of the police
custody are conducive to the practice of torture and other forms of
ill-treatment by the Spanish security forces and that the machinery for
supervision and forensic medical assistance for detainees are seriously
inadequate. Inquiries into the circumstances of torture are very difficult
and when, on occasion, they are completed, the procedures are very long.
10.3 The State party maintains that the author should have asked for
political refugee status on the grounds of the risks to his life and liberty
in the event of his return to Spain. However, for political reasons, the
French Government no longer grants such status to Basques applying for it.
Furthermore, the protection arising under article 3 of the Convention
concerns "everyone" and not just persons applying for or having the status
of refugee.
10.4 According to the author, the State party is making an erroneous
interpretation of the findings of the European Committee for the Prevention
of Torture (CPT). The latter actually stated that "it would be premature to
conclude that the phenomenon of torture and severe ill-treatment had been
eradicated" in Spain. [FN7]
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[FN7] Reports to the Spanish Government on the visits which took place from
1 to 12 April 1991, 10 to 22 April 1994 and 10 to 14 June 1994, CPT/Inf (96)
9, paras. 25 and 206.
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10.5 The fact that Spain is a party to the Convention and has recognized the
competence of the Committee under article 22 does not, in the present case,
constitute a sufficient guarantee of the author's safety.
10.6 Insofar as the violation of article 16 of the Convention is concerned,
the State party has not denied that the author was subjected to
ill-treatment during his transfer to the border post. Those acts should have
been the subject of a prompt and impartial investigation by the competent
authorities, in accordance with article 12 of the Convention. However, no
such investigation was held. The State party does not dispute the fact that
the author was illegally handed over to the Spanish security forces while in
a state of extreme weakness, after 35 days of a hunger strike and five days
of refusing to take liquids. The fact of handing over a person under such
circumstances for prolonged interrogation in itself constitutes cruel,
inhuman and degrading treatment. In addition, at the time of the
deportation, the medical file of the person concerned was transmitted by the
French police to the Spanish Civil Guard officers. Moreover, the medical
details contained in this file, and in particular the fact that the author
was suffering from degenerative discopathy, were used during the police
custody to aggravate the author's suffering, notably by forcing him to adopt
postures designed to increase his back pain. The fact of having supplied the
medical file also constitutes cruel, inhuman and degrading treatment.
Issues and Proceedings Before the Committee
11.1 In accordance with rule 110, paragraph 6, of its rules of procedure,
the Committee reconsidered the question of admissibility in the light of the
observations made by the State party concerning the Committee's decision
declaring the communication admissible. The Committee notes, however, that
the application made by the author to the Administrative Court of Limoges
was relevant even if, at the time of its submission, the deportation measure
had not yet been taken. This was confirmed by the judgement of the
Administrative Court of Pau, which stated that the issuance of the orders of
13 January 1997 calling for the deportation of Mr. Arkauz and his return to
Spain had the effect of regularizing the author's application. The Committee
accordingly found no reason to revoke its decision.
11.2 The Committee notes the author's allegations that he was ill-treated by
the French police officers while being driven to the Spanish border. The
Committee considers, however, that the author has not exhausted the domestic
remedies available in this respect. It therefore declares that this part of
the communication is not admissible.
11.3 With regard to the substance of the communication, the Committee must
determine whether the author's deportation to Spain violated the obligation
of the State party, under article 3, paragraph 1, of the Convention, not to
expel or return a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to
torture. In doing so the Committee must take into account all relevant
considerations with a view to determining whether the person concerned is in
personal danger.
11.4 The Committee recalls that during the consideration of the third
periodic report submitted by Spain under article 19 of the Convention, it
had expressed its concern regarding the complaints of acts of torture and
ill-treatment which it frequently received. It also noted that,
notwithstanding the legal guarantees as to the conditions under which it
could be imposed, there were cases of prolonged detention incommunicado,
when the detainee could not receive the assistance of a lawyer of his
choice, which seemed to facilitate the practice of torture. Most of the
complaints received concerned torture inflicted during such periods. [FN8]
Similar concerns had already been expressed during the consideration of the
second periodic report by the Committee, [FN9] as well as in the concluding
observations of the Human Rights Committee regarding the fourth periodic
report submitted by Spain under article 40 of the International Covenant on
Civil and Political Rights. [FN10] Furthermore, the European Committee for
the Prevention of Torture (CPT) also reported complaints of torture or
ill-treatment received during its visits to Spain in 1991 and 1994, in
particular from persons detained for terrorist activities. The CPT concluded
that it would be premature to affirm that torture and severe ill-treatment
had been eradicated in Spain. [FN11]
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[FN8] A/53/44, paras. 129 and 131.
[FN9] A/48/44, paras. 456 and 457.
[FN10] CCPR/C/79/Add.61 of 3 April 1996.
[FN11] CPT/Inf (96) 9, paras. 208-209.
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11.5 The Committee notes the specific circumstances under which the author's
deportation took place. First, the author had been convicted in France for
his links with ETA, had been sought by the Spanish police and had been
suspected, according to the press, of holding an important position within
that organization. There had also been suspicions, expressed in particular
by some non-governmental organizations, that other persons in the same
circumstances as the author had been subjected to torture on being returned
to Spain and during their incommunicado detention. The deportation was
effected under an administrative procedure, which the Administrative Court
of Pau had later found to be illegal, entailing a direct handover from
police to police, [FN12] without the intervention of a judicial authority
and without any possibility for the author to contact his family or his
lawyer. That meant that a detainee's rights had not been respected and had
placed the author in a situation where he was particularly vulnerable to
possible abuse. The Committee recognizes the need for close cooperation
between States in the fight against crime and for effective measures to be
agreed upon for that purpose. It believes, however, that such measures must
fully respect the rights and fundamental freedoms of the individuals
concerned.
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[FN12] At the time of the consideration of the second periodic report
submitted by France pursuant to article 19 of the Convention, the Committee
expressed its concern at the practice whereby the police hand over
individuals to their counterparts in another country (A/53/44, para. 143).
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12. In the light of the foregoing, the Committee is of the view that the
author's expulsion to Spain, in the circumstances in which it took place,
constitutes a violation by the State party of article 3 of the Convention.
13. Pursuant to rule 111, paragraph 5, of its rules of procedure, the
Committee would wish to receive, within 90 days, information on any measure
taken by the State party in accordance with these Views.
[Done in English, French, Russian and Spanish, the French text being the
original version.]
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