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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 7 May 2003,
Having concluded its consideration of complaint No. 219/2002, submitted to
the Committee against Torture by Ms. G. K. 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
complainant, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1.1 The complainant is G. K., a German national, born on 12 January 1956, at
the time of the submission of the complaint held at the police detention
center at Flums (Switzerland), awaiting extradition to Spain. She claims
that her extradition to Spain would constitute a violation by Switzerland of
articles 3 and 15 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. She is represented by counsel.
1.2 On 22 October 2002, the Committee forwarded the complaint to the State
party for comments and requested, under Rule 108, paragraph 1, of the
Committee's rules of procedure, not to extradite the complainant to Spain
while her complaint was under consideration by the Committee. The Committee
indicated, however, that this request could be reviewed in the light of new
arguments presented by the State party or on the basis of guarantees and
assurances from the Spanish authorities. The State party acceded to this
request.
1.3 By note verbale of 8 November 2002, the State party submitted its
observations on the admissibility and merits of the complaint; it also asked
the Committee to withdraw its request for interim measures, pursuant to Rule
108, paragraph 7, of the Committees rules of procedure. In his comments,
dated 9 December 2002, counsel asked the Committee to maintain its request
for interim measures, pending a final decision on the complaint. On 6
January 2003, the Committee, through its Special Rapporteur, decided to
withdraw its request for interim measures.
Facts
2.1 In 1993, the complainant worked as a language teacher in Barcelona,
where she became involved with one Benjamin Ramos Vega, a Spanish national.
During that time, the complainant and Mr. Ramos Vega both rented apartments
in Barcelona, one at calle Padilla, rented on 21 April 1993 in Mr. Ramos
Vega's name, and one at calle Aragon, rented on 11 August 1993 in the
complainant's name and for the period of one year. According to counsel, the
complainant had returned to Germany by October 1993.
2.2 On 28 April 1994, Felipe San Epifanio, a convicted member of the
commando "Barcelona" of the Basque terrorist organization "Euskadi ta
Askatasuna" (ETA), was arrested by Spanish police in Barcelona. The judgment
of the Audiencia Nacional, dated 24 September 1997, sentencing him and other
ETA members to prison terms, states that, upon his arrest, Mr. San Epifanio
was thrown to the floor by several policemen after he had drawn a gun,
thereby causing him minor injuries which reportedly healed within two weeks.
Based on his testimony, the police searched the apartment at calle Padilla
[FN1] on 28 April 1994, confiscating firearms and explosives stored by the
commando. Subsequent to this search, Mr. Ramos Vega left Spain for Germany.
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[FN1] Apparently, the apartment was rented but not inhabited by Mr. Ramos
Vega.
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2.3 The Juzgado Central de Instrucci�n No. 4 de Madrid issued an arrest
warrant, dated 23 May 1994, against both the complainant and Mr. Ramos Vega
under suspicion of ETA collaboration as well as possession of firearms and
explosives. A writ was issued on 6 February 1995 by the same examining judge
indicting the complainant and Mr. Ramos Vega of the above offenses for
having rented "under their name, the apartments at the streets Padilla and
Aragon, respectively, places which served as a refuge and for the hiding of
arms and explosives, which the members of the commando had at their
disposition for carrying out their actions." [FN2]
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[FN2] Translation by the Secretariat.
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2.4 On 10 March 1995, the Berlin public prosecutor's office initiated
criminal proceedings against the complainant, following a request by the
Spanish Ministry of Justice. However, the German authorities decided to
discontinue proceedings on 23 November 1998, in the absence of a reasonable
suspicion of an offence punishable under German law. In a letter to the
Spanish authorities, the Berlin public prosecutor's office stated that the
apartment at calle Padilla, where the firearms and explosives had been
found, had not been rented by the complainant but by Mr. Ramos Vega, while
only a bottle filled with lead sulfide - which is not used for the
production of explosives � had been found in the complainant's apartment at
calle Aragon.
2.5 Subsequent to Mr. Ramos Vega's extradition to Spain in 1996, the
Audiencia Nacional, by judgment of 24 September 1997, convicted him of
collaboration with an armed group and falsification of license plates in
relation with terrorist activities ("con agravante de relaci�n con
actividades terroristas"), sentencing him to two terms of imprisonment, one
of seven years and the second of four years and three months. However, the
Audiencia Nacional acquitted him of the charges in relation to the storage
of firearms and to the possession of explosives due to lack of proof that he
known about the existence of these materials, noting that he had rented the
apartment at calle Padilla at the request and for the use of a friend,
Dolores Lopez Resina ("Lola"). The judgment states that, immediately
following the search of that apartment, the convict assisted the escape of
several members of the commando "Barcelona" by renting, and changing the
license plates of, a car which he, together with these members, used to
leave Barcelona.
2.6 The complainant was arrested by Swiss police when crossing the Austrian-
Swiss border at St. Margrethen on 14 March 2002, on the basis of a Spanish
search warrant, dated 3 June 1994. She was provisionally detained, pending a
final decision on her extradition to Spain. During a hearing on 20 March
2002, she refused to consent to a simplified extradition procedure. By
diplomatic note of 22 April 2002, Spain submitted an extradition request to
the State party, based on an international arrest warrant dated 1 April
2002, issued by the Juzgado Central de Instrucci�n No. 4 at the Audiencia
Nacional. This warrant is based on the same charges as the original arrest
warrant and the writ of indictment against both the complainant and Mr.
Ramos Vega.
2.7 By letter of 7 June 2002, the complainant, through counsel, asked the
Federal Office of Justice to reject the extradition request of the Spanish
government, claiming that by referring the criminal proceedings to the
German authorities, Spain had lost the competence to prosecute the
complainant, thus precluding the complainant's extradition to that country.
[FN3] Moreover, the fact that the Spanish authorities, in their extradition
request to the State party, had deliberately not revealed who actually
rented the apartment at calle Padilla, indicated that the complainant was to
be tried for political rather than juridical reasons. Since political
offenses were not extraditable [FN4], counsel argued that, contrary to the
general rule that decisions on extraditions were purely a formal matter, the
State party was obliged to examine whether a reasonable suspicion of an
offense existed with respect to the complainant, in the absence of any link
with the firearms and explosives found in the calle Padilla apartment, or
with the escape vehicle. In counsel's opinion, the complainant's extradition
is also precluded by the fact that the Spanish arrest warrant was based on
testimony which had allegedly been extracted from Mr. San Epifanio by
torture.
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[FN3] Pursuant to article 9 of the European Convention on Extradition to
which Germany, Switzerland and Spain are parties, "[e]xtradition my be
refused if the competent authorities of the requested party have decided
either not to institute or to terminate proceedings in respect of the same
offence or offences".
[FN4] See article 3 (1) of the European Convention on Extradition.
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2.8 By decision of 8 August 2002, the Federal Office of Justice granted the
Spanish extradition request, subject to the condition that the complainant
was not to be tried for political motivations to commit the alleged offences
and that the severity of punishment was not to be increased on the basis of
such a motivation. This decision was based on the following considerations:
(1) that the examination of reciprocal criminal liability was based on the
facts set out in the extradition request, the evaluation of facts and
evidence and matters of innocence or guilt being reserved to the Spanish
courts; (2) that no issue of ne bis in idem arose since the German
authorities, for lack of territorial competence, had not exhaustively dealt
with these questions; (3) that the charges brought against the complainant
were not of a purely political nature; (4) that the complainant was not at
direct and personal risk of being tortured during incommunicado detention
following her extradition to Spain, because she could already engage the
services of a lawyer in Spain prior to her extradition and because she
enjoyed diplomatic protection by Germany; and (5) that even if Mr. San
Epifanio's testimony had been extracted by torture, this was not the only
evidence on which the charges against the complainant had been based.
2.9 On 8 September 2002, counsel lodged an administrative court action with
the Federal Tribunal against the decision of the Federal Office of Justice
to extradite the complainant. In addition to the reasons stated in his
motion of 7 June 2002, he criticized that the Spanish extradition request
lacked the necessary precision required by article 14, paragraph 2, of the
European Convention of Mutual Legal Assistance in Criminal Matters (1959)
[FN5] since it was essentially based on the arrest warrant of 1994 and
failed to take into account the results of the subsequent criminal
proceedings in Germany as well as in Spain. In particular, it did not
clarify that the apartment at calle Padilla was rented by Mr. Ramos Vega
exclusively, that the latter had been acquitted of the charges relating to
the storage of firearms and possession of explosives by the Audiencia
Nacional, and that the powder found in the apartment at calle Aragon was
lead sulfide which could not be used for the production of explosives. The
facts established in the extradition request were, therefore, to be
disregarded; the request itself was abusive and had to be rejected. With
respect to article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, counsel submitted that,
although in theory the complainant enjoyed diplomatic protection by Germany
and could already engage the services of a lawyer of her choice in Spain
prior to her extradition, these rights could in practice only be exercised
after incommunicado detention had ended. Regarding article 15 of the
Convention, counsel criticized that the Spanish extradition request failed
to indicate on which additional evidence the charges against the complainant
had been based. Insofar as the evidence was found indirectly through Mr. San
Epifanio's testimony, counsel claims that the theory of the "tainted fruits
of the poisonous tree" precludes the use of such evidence by the Swiss
courts.
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[FN5] See also ibid., article 12 (2) (b).
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2.10 By letter of 20 September 2002, the Federal Office of Justice asked the
Federal Tribunal to dismiss the complainant's legal action. Counsel
responded to this motion by letter, dated 15 October 2002, in which he
maintained and further explained his arguments.
2.11 The Swiss section of Amnesty International sent an amicus curiae brief,
dated 2 October 2002, on behalf of the complainant to the Federal Tribunal,
stating that Spanish legislation provided for the possibility of keeping
suspects of terrorist offenses in incommunicado detention for a period up to
five days during which they could only be visited by a legal aid lawyer, and
that such detention increased the risk of torture and maltreatment. Although
torture was not systematically inflicted by the Polic�a Nacional or the
Guardia Civil, instances of massive maltreatment of ETA suspects still
occurred, including sexual assaults, rape, blows to the head, putting
plastic bags over the head ("la bolsa"), deprivation of sleep, electric
shocks, threats of execution etc. Amnesty International considered it
indispensable for the State party to make the complainant's extradition to
Spain subject to the following assurances: (1) that under no circumstances
the complainant should be handed over to the Guardia Civil or the Polic�a
Nacional, but that she be placed directly under the authority of the
Audiencia Nacional in Madrid; (2) that the complainant be granted direct and
unlimited access to a lawyer of her choice; and (3) that she be brought
before a judge as soon as possible following her extradition to Spain.
2.12 By judgment of 21 October 2002, the Federal Tribunal dismissed the
complainant's action, upholding the decision of the Federal Office of
Justice to grant the Spanish extradition request. The Tribunal based itself
on the facts set out in the extradition request and concluded that the
complainant was punishable under Swiss law (either as a participant in or as
a supporter of a terrorist organization pursuing the objective to commit
politically motivated crimes of violence) as well as under Spanish law. The
Tribunal did not pronounce itself on the complainant's challenges as to the
facts contained in the extradition request, ruling that questions of facts
and evidence were for the Spanish courts to decide. Moreover, since ETA was
not merely a group struggling for political power by employing legitimate
means, the Tribunal did not consider the complainant's participation in or,
respectively, her support of ETA a political offence within the meaning of
article 3 of the European Convention on Extradition. The fact that criminal
proceedings against the complainant had been closed by the Berlin public
prosecutor's office for lack of a reasonable suspicion of an offense did
not, in the Tribunal's opinion, bar the Swiss authorities from extraditing
her to Spain because the decision to close proceedings was not based on
material grounds and had been taken by a third State [FN6]. With respect to
the alleged risk of torture following the complainant's extradition to
Spain, the Tribunal held that Spain, being a democratic State and a member
of the pertinent regional and universal human rights conventions, could not
be presumed to systematically practice torture. Moreover, the Tribunal
rejected the claim that the charges against the complainant were primarily
based on testimony extracted by torture, in the absence of any supporting
evidence. [FN7]
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[FN6] Cf. article 9 of the European Convention on Extradition.
[FN7] In that regard, the Federal Tribunal argues that, according to the
complainant herself, the criminal proceedings initiated by Mr. San Epifanio
against the police had been closed by the Spanish authorities.
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2.13 According to counsel's information, the complainant was extradited to
Spain after the Committee, on 6 January 2003, decided to withdraw its
request for interim measures.
The Complaint
3.1 Counsel claims that following an extradition to Spain, the complainant
would be at risk of being tortured during a maximum of five days of
incommunicado detention and that Switzerland would, therefore, be violating
article 3 of the Convention if she were extradited to Spain. In
substantiation of this claim, counsel refers to several reports [FN8] on
instances of torture inflicted on suspected members or supporters of ETA as
well as to the Committee's views on Communication No. 63/1997 (Josu Arkauz
Arana v. France) [FN9] concerning the extradition of an ETA suspect from
France to Spain, where the Committee stated 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". [FN10] Counsel also submits that, in the absence
of guarantees from the Spanish authorities, the author could not, in
practice, obtain access to a lawyer of her choice and to diplomatic
protection by Germany until after incommunicado detention had ended.
Furthermore, counsel argues that the numerous reports on cases of torture
and maltreatment in Spanish prisons indicated a consistent pattern of gross,
flagrant or mass violations of human rights, a finding which was reinforced
by the fact that ETA suspects had been killed in the past by death squads
(Grupos Antiterroristas de Liberaci�n/GAL) linked to the former Spanish
government. In counsel's view, the complainant's personal risk of being
tortured was increased by the fact that the Spanish extradition request had
been based on false charges, which indicated that Spain was unwilling to
grant the complainant a fair trial. In the absence of any clear evidence
against the complainant, it was not excluded that Spanish police would try
to extract a confession by torture.
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[FN8] Human Rights Committee, Concluding observations on the second periodic
report of Spain; European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, Reports on visits to Spain in
1997, 1998 and 2000; Amnesty International, Annual Report 2001.
[FN9] Views adopted on 9 November 1999, UN Doc. CAT/C/23/C/63/1997, 5 June
2000.
[FN10] Ibid., para. 11.4.
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3.2 Counsel claims that by granting the Spanish extradition request which
exclusively relied on Felipe San Epifanio's testimony, extracted by torture,
and on the evidence found on the basis of this testimony in the apartment at
calle Padilla, the State party violated article 15 of the Convention.
Counsel argues that the use in extradition proceedings of evidence obtained
as a result of torture runs counter to the spirit of the Convention since it
provides the authorities of the requesting State with an incentive to
disregard the prohibition of torture. By granting the Spanish extradition
request, the Federal Office of Justice de facto accepted the evidence
obtained through torture.
The State Party's Observations on Admissibility and Merits
4.1 On 8 November 2002, the State party submitted its observations on the
admissibility and merits of the complaint. It does not contest the
admissibility of the complaint.
4.2 The State party reiterates that questions of facts and evidence as well
as of innocence or guilt cannot be examined in an extradition procedure,
these matters being reserved to the trial courts. Since the complainant was
free to invoke her arguments before the Spanish courts, an extradition to
Spain was possibly even in her own interest because it provided her with an
opportunity to be released from prison following an acquittal.
4.3 With regard to the complainant's claim under article 3, the State party
submits that isolated cases of maltreatment in Spanish prisons fall short of
attesting to a systematic practice of torture in that country. Moreover, the
complainant had failed to establish that she was at a concrete and personal
risk of being tortured if extradited to Spain. In particular, the case of
Josu Arkauz Arana, who had been extradited to Spain on the basis of a purely
administrative procedure, which had subsequently been found illegal by the
Administrative Court of Pau, in the absence of any intervention of a
judicial authority and of the possibility for the author to contact his
family or lawyer, was not comparable to the complainant's situation: While
the particular circumstances of Josu Arkauz Arana's extradition to Spain had
placed him in a situation where he had been particularly vulnerable to
possible abuse, the complainant had enjoyed the benefits of a judicial
extradition procedure ensuring respect for her human rights and fundamental
freedoms. According to the State party, the same guarantees applied in Spain
which, being a member to the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment as well as to the Optional
Protocol to the International Covenant on Civil and Political Rights and the
European Convention, was subject to the scrutiny of the supervising bodies
of these instruments, which provided the complainant with a preventive
guarantee not to be tortured. Moreover, the complainant enjoyed diplomatic
protection by Germany and could avail herself of the services of a lawyer of
her choice already hired from Switzerland. The State party could also
mandate its own Embassy in Spain to monitor the complainant's conditions of
detention. The international attention drawn to the case provided a further
guarantee against any risk of torture.
4.4 With respect to the complaint's claim under article 15 of the
Convention, the State party submits that nothing establishes that Felipe San
Epifanio's testimony had been extracted by torture. The complainant herself
had stated that the criminal proceedings initiated by Mr. San Epifanio had
been closed. Again, it was for the criminal courts in Spain and not for the
Swiss extradition authorities to pronounce themselves on the admissibility
of evidence.
Complainant's Comments on the State Party's Submissions
5.1 In his response to the State party's submission, counsel maintains that
the complainant would be at personal risk of being tortured if extradited to
Spain. Such a risk was indicated by several precedents, in particular the
cases of Felipe San Epifanio and Agurtzane Ezkerra P�rez de Nanclares,
another convicted member of the commando "Barcelona" who had allegedly been
tortured during incommunicado detention. Counsel submits a letter, dated 4
May 1994, addressed to the Juzgado de Instrucci�n No. 4 (Bilbao), in which
Felipe San Epifanio brought criminal charges against the police, stating
that the police arrested him by immobilizing him on the ground, where he
received blows and kicks on his entire body, including blows to his head
with a gun. Although the wounds had been stitched at hospital, no thorough
medical examination had been carried out. Instead, the police allegedly had
continued to maltreat him during incommunicado detention, beating him
repeatedly. The following days, Mr. San Epifanio had been questioned on his
links with ETA and individual members of that organization without the
assistance of a lawyer. During the four days of incommunicado detention, he
had allegedly been denied sleep and had not received any solid food but only
large amounts of water. Counsel argues that the examining judge's decision
to close criminal proceedings initiated by Mr. San Epifanio reflects the
extent of impunity enjoyed by alleged torturers of ETA suspects. [FN11]
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[FN11] In the complaint, dated 18 October 2002, counsel stated that the
examining judge had considered that the facts submitted by Mr. San Epifanio
fell short of constituting a criminal offense, despite the fact that a
medical examiner had found several haematoma and open wounds on his body
after his detention incommunicado had ended.
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5.2 Counsel reiterates that numerous human rights reports provide evidence
of the existence of a consistent pattern of gross, flagrant or mass
violations of human rights in Spain. In particular, he cites the Committee's
most recent concluding observations relating to Spain [FN12] in which it
expressed its concern about the dichotomy between Spanish official
statements denying the occurrence of torture or maltreatment except in
isolated cases, and the information received from non-governmental sources
indicating the persistence of cases of torture and maltreatment by Spanish
security forces. Moreover, the Committee noted that Spain maintained its
legislation providing for incommunicado detention for up to a maximum of
five days during which the detainee neither had access to a lawyer or a
medical doctor of his choice, nor to his family. Counsel submits that
diplomatic protection is inaccessible during that period.
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[FN12] See Committee against Torture, 29th session (11-22 November 2002),
Conclusions and recommendations of the Committee against Torture: Spain, UN
Doc. CAT/C/CR/29/3, 23 December 2002.
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5.3 With respect to the admissibility of Mr. San Epifanio's testimony,
counsel submits that the prohibition in article 15 of the Convention applies
not only to criminal proceedings in Spain but also to the complainant's
extradition proceedings in Switzerland. This follows from the wording of
article 15 which obliges the State party to "ensure that any statement which
is established to have been made as a result of torture shall not be invoked
as evidence in any proceedings". Counsel challenges the State party's
argument that it had not been established that Mr. San Epifanio's testimony
had been extracted by torture, arguing that the requirements as to the
evidence for this torture claim should not be overly strict. [FN13]
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[FN13] This argument is contained in the complaint, dated 18 October 2002.
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Issues and Proceedings Before the Committee
6.1 Before considering any claim contained in a communication, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. 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. In the present case, the
Committee also notes that all domestic remedies have been exhausted and that
the State party has not objected to the admissibility of the communication.
It therefore considers that the communication is admissible and proceeds to
the examination to the merits of the case.
6.2 With regard to the complainant's claim under article 3, paragraph 1, of
the Convention, the Committee must determine whether the author's
deportation to Spain violated the State party's obligation, under that
article, 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, including the existence, in the State
concerned, of a consistent pattern of gross, flagrant or mass violations of
human rights.
6.3 The Committee recalls that during the consideration of the fourth
periodic report submitted by Spain under article 19 of the Convention, it
noted with concern the dichotomy between the assertion of the Spanish
Government that, isolated cases apart, torture and ill-treatment do not
occur in Spain and the information received from non-governmental sources
which is said to reveal instances of torture and ill-treatment by the State
security and police forces. [FN14] It also expressed concern about the fact
that incommunicado detention up to a maximum of five days has been
maintained for specific categories of particularly serious offences, given
that during this period, the detainee has no access to a lawyer or to a
doctor of his choice, nor is he able to contact his family. [FN15] The
Committee considered that the incommunicado regime facilitates the
commission of acts of torture and ill-treatment. [FN16]
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[FN14] CAT, 28th session (11-22 November 2002), Conclusions and
recommendations of the Committee against Torture: Spain, UN Doc.
CAT/C/CR/29/3, 23 December 2002, at para. 8.
[FN15] Id., at para. 10.
[FN16] Id.
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6.4 Notwithstanding the above, the Committee reiterates that its primary
task is to determine whether the individual concerned would personally risk
torture in the country to which he or she would return. It follows that the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights in a country does not as such constitute sufficient grounds for
determining that the particular person would be in danger of being subjected
to torture upon his return to that country; additional grounds must be
adduced to show that the individual concerned would be personally at risk.
Conversely, the absence of a consistent pattern of gross violations of human
rights does not mean that a person cannot be considered to be in danger of
being subjected to torture in his or her specific circumstances.
6.5 As to the complainant's personal risk of being subjected to torture
following extradition to Spain, the Committee has noted the complainant's
arguments that the Spanish extradition request was based on false
accusations, that, as an ETA suspect, she was at a personal risk of being
tortured during incommunicado detention, in the absence of access to a
lawyer of her choice during that time, that other persons had been subjected
to torture in circumstances that she considers to be similar to her case,
and that diplomatic protection by Germany as well as the prior designation
of a lawyer constituted protections against possible abuse during
incommunicado detention in theory only. It has equally noted the State
party's submission that, in addition to the above-mentioned protections, the
international attention drawn to the complainant's case, as well as the
possibility for her to challenge torture or ill-treatment by the Spanish
authorities before the Committee and other international instances,
constitute further guarantees preventing Spanish police from subjecting her
to such treatment.
6.6 Having regard to the complainant's reference to the Committee's views in
the case of Josu Arkauz Arana, the Committee observes that the specific
circumstances of that case, which led to the finding of a violation of
article 3 of the Convention, differ markedly from the circumstances in the
present case. The deportation of Josu Arkauz Arana "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,
without the intervention of a judicial authority and without any possibility
for the author to contact his family or his lawyer". [FN17] By contrast, the
complainant's extradition to Spain was preceded by a judicial review, by the
Swiss Federal Tribunal, of the decision of the Federal Office of Justice to
grant the Spanish extradition request. The Committee notes that the judgment
of the Federal Court, as well as the decision of the Federal Office, both
contain an assessment of the risk of torture that the complainant would be
exposed to following an extradition to Spain. The Committee, therefore,
considers that, unlike in the case of Josu Arkauz Arana, the legal
guarantees were sufficient, in the complainant's case, to avoid placing her
in a situation where she was particularly vulnerable to possible abuse by
the Spanish authorities.
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[FN17] Communication No. 63/1997, Josu Arkauz Arana v. France, Views adopted
on 9 November 1999, UN Doc. CAT/C/23/D/63/1997, 5 June 2000, at para. 11.5.
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6.7 The Committee observes that possible inconsistencies in the facts on
which the Spanish extradition request was based, cannot as such be construed
as indicating any hypothetical intention of the Spanish authorities to
inflict torture or ill-treatment on the complainant, once the extradition
request was granted and executed. Insofar as the complainant claims that the
State party's decision to extradite her violated articles 3 and 9 of the
European Convention on Extradition of 1957, the Committee observes that it
is not competent ratione materiae to pronounce itself on the interpretation
or application of that Convention.
6.8 Lastly, the Committee notes that, subsequent to the complainant's
extradition to Spain, it has received no information on torture or
ill-treatment suffered by the complainant during incommunicado detention. In
the light of the foregoing, the Committee finds that the complainant's
extradition to Spain did not constitute a violation by the State party of
article 3 of the Convention.
6.9 With regard to the alleged violation of article 15 of the Convention,
the Committee has noted the complainant's arguments that, in granting the
Spanish extradition request, which was, at least indirectly, based on
testimony extracted by torture from Felipe San Epifanio, the State party
itself had relied on this evidence, and that article 15 of the Convention
applied not only to criminal proceedings against her in Spain, but also to
the extradition proceedings before the Swiss Federal Office of Justice as
well as the Federal Court. Similarly, the Committee has noted the State
party's submission that the admissibility of the relevant evidence was a
matter to be decided by the Spanish courts.
6.10 The Committee observes that the broad scope of the prohibition in
article 15, proscribing the invocation of any statement which is established
to have been made as a result of torture as evidence "in any proceedings",
is a function of the absolute nature of the prohibition of torture and
implies, consequently, an obligation for each State party to ascertain
whether or not statements admitted as evidence in any proceedings for which
it has jurisdiction, including extradition proceedings, have been made as a
result of torture. [FN18]
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[FN18] See Communication No. 193/2001, P.E. v. France, Views adopted on 21
November 2002, UN Doc. CAT/C/29/D/193/2001, 19 December 2002, at para. 6.3.
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6.11 At the same time, the Committee notes that, for the prohibition in
article 15 to apply, it is required that the statement invoked as evidence
"is established to have been made as a result of torture". As the
complainant herself stated, criminal proceedings initiated by Felipe San
Epifanio against his alleged torturers were discontinued by the Spanish
authorities. Considering that it is for the complainant to demonstrate that
her allegations are well-founded, the Committee concludes that, on the basis
of the facts before it, it has not been established that the statement of
Mr. San Epifanio, made before Spanish police on 28 April 1994, was obtained
by torture .
6.12 The Committee reiterates that it is for the courts of the States
parties to the Convention, and not for the Committee, to evaluate the facts
and evidence in a particular case, unless it can be ascertained that the
manner in which such facts and evidence were evaluated was clearly arbitrary
or amounted to a denial of justice. The Committee considers that the State
party's decision to grant the Spanish extradition request does not disclose
a violation by the State party of article 15 of the Convention.
7. Consequently, the Committee against Torture, acting under article 22,
paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, concludes that the extradition of the
complainant to Spain did not constitute a breach of either article 3 or 15
of the Convention.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
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