1. The author of the
communication is Gerald John Griffin, a Canadian citizen born in 1948. At
the time of submitting the communication, he was detained at a penitentiary
in Vitoria, Spain. [FN1] He claims to be the victim of violations by Spain
of articles 7, 9 paragraphs 1 and 2, 10, 14, 17, and 26 of the International
Covenant on Civil and Political Rights.
By letter of 19 May 1993 the author's daughter informed the Secretariat that
her father had been transferred to a prison in Ontario, Canada
The facts as submitted by the author:
2.1 In March 1991, the author and an acquaintance, R.L., started a pleasure
journey through Europe. Upon arrival in Amsterdam, they rented a camper. R.L.
suggested to pay the rent with the author's credit-card, as his own account
was limited, and that he would reimburse the author. In Amsterdam, R.L.
introduced the author to another Canadian, I.G., with whom he went off to
bars on several occassions, leaving the author behind. One day R.L. and I.G.
returned with a different camper, claiming that the first one had broken
2.2 I.G. suggested to meet up again in Ketama, Morocco, where they could
stay at a friend's place. The author and R.L. then drove to Morocco, where
they spent five days; the camper was parked in a garage.
2.3 On 17 April 1991, on their return to Holland, the author and R.L. were
arrested by the police of Melilla, Spain. It transpired that R.L., I.G. and
his Moroccan friend had concealed 68 kilos of hashish in the camper. R.L.
allegedly confessed his guilt and told the police that the author was
innocent. It is submitted that, during the interrogation, the police did not
seek the assistance of an interpreter, although the author and R.L. did not
speak Spanish and the investigating officers did not speak English. The
statements were taken down in Spanish.
2.4 On 18 April 1991, the author and R.L. were brought before and examining
magistrate. Upon entering the court room, the interpreter allegedly told the
author that R.L. had confessed and had said that the author was innocent.
The examining magistrate allegedly stated that if the author had no criminal
record over the past five years, he would be releases within a few days. The
author admitted that in 1971, he had been convicted for possession of 28
grams of hashish and sentenced to six months suspended imprisonment.
2.5 The author was imprisoned at Melilla. Through mediation of a prisoner
who spoke a little English, the author obtained the services of a lawyer. He
states that she asked large sums of money, promising on several occasions
that she would return with all the documents pertaining to his case and with
an interpreter, so as to prepare his defence in consultation with him. The
author notes that she tricked him constantly, assuring hm and his relatives
that he would be released soon. In spite of her promises, she did not
prepare his defence. In this context, the author adds that, two days before
the start of the trial, she came to the prison, again without an
interpreter. With the assistance of a prisoner who spoke broken English, she
told the author to reply with "yes" or "no" to all questions posed during
2.6 On 28 October 1991, the author and R. L. were tried before the Audiencia
Provincial (Sector de Malaga) in Melilla. The author states that the court
interpreter only spoke a little English and translated into French, but that
neither he nor R. L. had any substantial knowledge of French. The lawyer,
however, did not raise any objections. During the trial, the judge asked the
author whether he had always been accompanying R. L. when he drove the
camper. Due to poor translation of the question, the author misunderstood it
and answered in the affirmative.
2.7 The author was sentenced to eight years, nine months and one day
imprisonment. He requested his lawyer to appeal on his behalf; she first
refused, then again requested a large sum of money, upon which the author
filed a complaint against her with the bar (Colegio de Abogados) of Melilla.
2.8 On 26 November 1991, riots broke out in the prison of Melilla. Prisoners
set fire to the patio and climbed onto the roof. The author explains that as
he has a lame leg, he could not climb up and because the guards had locked
the door to the main building, he was nearly caught in the fire. He states,
that, only because he helped to carry a man who appeared to suffer from
heart attack, he was allowed by the guards to leave the patio. After the
police intervened with teargas and rubber bullets, and the prison
authorities promised improvements in the conditions of detention, the
situation calmed down. On 28 November 1991, the author was transferred to a
prison in Sevilla.
2.9 On 10 January 1992, the author was informed that a legal aid lawyer had
been assigned to him and that an appeal was being filed on his behalf. He
states that he made numerous unsuccessful attempts to obtain information on
the identity of the lawyer and the date of the hearing of the appeal. On 7
March 1992, he started a hunger strike to enforce his right toa fair trial.
He was subsequently transferred to the infirmary of a prison in Malaga. At
the end of June 1992, he learned form another lawyer that the Supreme Court
had dismissed the appeal on 15 June 1992. According to the author, the
Supreme Court did not give reasons for its decision.
2.10 The author states that his health is poor and that he suffers from
extreme depressions because of his unfair treatment by the Spanish
authorities. He lost 21 kilos because of his hunger strike and developed
pneumonia. In September 1992, he returned to eating food, as his hunger
strike did not have any effect upon the Spanish authorities.
2.11 Finally, the author submits that he has exhausted all available
domestic remedies. In this context, he states that he has written letters to
several instances in Spain, including the Constitutional Court, the
Ombudsman (Defensor del Pueblo), the judge and public prosecutor of
Vigelancia and the Prosecutor General (Fiscal General del Estado). The
Constitutional Court reportedly replied that it was unable to assist him,
but that his case would be passed on to the Prosecutor General. The latter
never replied to the author's letter. The Ombudsman reportedly replied that
he could not be of any assistance to him because he was awaiting trial. The
author questions the effectiveness of this remedy, as the Ombudsman replied
to an inmate of the prison, that he was unable to assist because he (the
inmate) had already been sentenced. By letter of 3 March 1992, the
prosecutor of Vigelancia informed the author that he would look into the
claim of absence of a competent interpreter, but he never received any
3.1 The author claims that he has been subjected to cruel, inhuman and
degrading treatment and punishment during his incarceration at the prison of
Melilla. The living conditions in this prison are said to be "worse than
those depicted in the film 'Midnight Express'; a 500 year-old prison,
virtually unchanged, infested with rats, lice, cockroaches and diseases; 30
persons per cell among whom old men, women, adolescents and an eight
month-old baby; no windows, but only steel bars open to the cold and the
wind; high incidence of suicide, self-mutilation, violent fights and
beatings; human feces all over the floor as the toilet, a hole in the
ground, was flowing over; sea-water for showers and often for drink as well;
urine-soaked blankets and mattresses to sleep on in spite of the fact that
the supply rooms were full of new bed linen, clothes etc. He added that he
has learned that the prison has been "cleaned up" after the riots, but that
he can provide the Committee with a list of witnesses and with a more
detailed account of conditions and events in said prison.
3.2 Concerning article 9, paragraphs 1 and 2, of the Covenant, the author
claims that he was arbitrarily arrested and detained since there was no
evidence against him. He submits that some people he met in prison and who
were charged with a similar offence were either released or acquitted,
whereas he was detained in spite of R.L.'s confession and the promise of the
examining magistrate to release him if he had no criminal record. He further
contends that as there was no interpreter present at the time of their
arrest, he was not properly informed of the reasons for his arrest and of
the charges against him.
3.3 The author claims that while awaiting trial, he was detained in a cell
together with persons convicted for murder, rape, drug traffic, armed
robbery, etc. According to him, there is no distinction between convicted
and unconvicted prisoners in Spain. Furthermore, he claims that the Spanish
penitentiary system does not provide facilities for reformation and social
rehabilitation. In this context, he submits that he, together with an inmate
at the Melilla prison, tried to teach reading and writing to some prisoners,
but that the prison director did not allow them to do so. Moreover, the
prison authorities have ignored all his requests for Spanish grammar books
and a dictionary. All this is said to constitute a violation of article 10.
3.4 The author claims that his rights under article 14 of the Covenant have
been violated. With regard to unfair trial, he submits that the trial lasted
only ten minutes, that neither he nor R. L. understood anything of what was
going on, and that he was not allowed to give evidence or to defend himself.
He points out that neither the judge nor the lawyer objected to the
incompetence of the interpreter, and that his conviction might be based on
the discrepancy between his original statement to the examining magistrate
(namely, that he was often left behind by R. L. and the other Canadian and
that they once returned with a different camper) and his reply at the trial
(his affirmation that he was always accompanying R. L. when the latter drove
the camper). The author reiterates that there is no evidence against him. In
support of his allegations, he encloses two affidavits of R. L., dated 28
January 1992, concerning the author's innocence and the inadequacy of the
interpreter. The author further claims that he has been sentenced to a
longer term of imprisonment than Spanish nationals normally are in similar
3.5 As to the preparation of his defence, the author affirms that to date he
has not received a single document pertaining to his case. He notes that R.
L. had admitted that he owned the camper, that in Canada he had prepared its
roof to conceal the drugs, that it was then shipped to the Netherlands where
he and I. G. forged the papers and licence plates with the help of those of
the rental camper, and that he had invited the author to join him on the
trip merely to make it appear less conspicuous. The author contends that the
lawyer did not make any efforts to obtain evidence about the veracity of R.
L.'s confession, and that she never interviewed them in the presence of an
3.6 With regard to the appeal, the author submits that the lawyer assigned
to him never sought to contact him to discuss the case. It was not until
September 1992, three months after the dismissal of the appeal, that he
learned the name of the representative. Furthermore, the author submits that
he was denied the opportunity to defend himself on appeal, as the hearing
was held in his absence.
3.7 The author further contends that the Spanish authorities have interfered
with his mail, in violation of article 17. He submits that on several
occasions, letters addressed to him by friends, family and his lawyer in
Canada were either returned to the sender or simply disappeared.
3.8 Finally, the author claims that the is discriminated against by the
Spanish authorities. In this context, he submits that he has not been
treated in the same manner before the courts as Spanish nationals are
treated, e.g. with regard to facilities to prepare the defence or length of
term of imprisonment. He further submits that the prison authorities have
refused to provide him with work (which makes it possible to have the
sentence reduced by one day for every day of work), whereas Spanish
prisoners are able to obtain work upon request.
The State party's information and observations and the author's comments
4.1 In its submissions dated 28 October 1992 and 22 March 1993, the State
party argues that the communication is inadmissible under article 5,
paragraph 2(b), of the Optional Protocol, as the author has failed to apply
for amparo before the Constitutional Court of Spain.
4.2 With regard to the claims of ill-treatment in prison, the State party
refers to the Ombudsman's 1991 report on ill-treatment in Spanish prisons.
It highlights the efforts made by the Director of Penitentiary Affairs, as
well as by the prison officials, to eliminate instances of ill-treatment in
prison. The Ombudsman points out that his conclusions are based not only on
complaints received or periodic visits to the penitentiaries, but also on
the results of investigations into such complaints. He reports that in 1991,
his office received only a few sufficiently substantiated complaints about
ill-treatment; two of them were immediately investigated by the penitentiary
administration. He concludes that the Director of Penitentiary Affairs has
thoroughly cooperated in the investigation of complaints transmitted to his
office by the Ombudsman, and that the penitentiary administration has always
performed its duty rapidly and efficiently, by investigating the events
complained of, adopting adequate remedies wherever the allegations could be
proven, and adopting protective measures for disciplinary proceedings. The
State party submits that the Ombudsman received several letters from the
author, that each letter was examined by the Ombudsman, and that on each
occasion the author was informed about the Ombudsman's findings.
4.3 The State party notes that, on 31 March 1992, the author was transferred
to a prison in Malaga, where he received the necessary medical attention,
and where he had numerous interviews with the sociologist and legal adviser,
who informed him on the possibilities of his hunger strike but limited
himself to selective nutrition, as a result of which he lost 7 kilos, and
that no serious complications arose. Finally, the State party points out
that the author did not initiate any proceedings with regard to the alleged
inhuman conditions of detention.
4.4 With regard to the author's remaining complaints, the State party
submits copies of the relevant documents and argues that:
- There was sufficient evidence against the accused for the police to arrest
and detain them. In this context, the State party refers to the documents
and photographs relating to the amount of the drugs found, their value and
to the camper.
- Neither the author, nor R. L. made any statements to the police. When
arrested, they were informed of the charges against them and of their
rights, under article 520 of the Code of Criminal Procedure. Although a
lawyer was assigned to them, the author and R. L. indicated that they did
not want to make any statements in the absence of an interpreter.
- While represented by a lawyer and assisted by an interpreter, the author
made the following deposition during the preliminary hearing: "that he had
no knowledge of the drugs which were hidden in the camper, that he was
travelling with his friend, that they made a stop in Ketama where they
stayed for five days, that the camper was parked in a garage near to the
house, the camper from the other Canadian whom they had met in Amsterdam".
- R. L.'s deposition reads as follows: "that he went to Morocco with the
intention to pick up the hashish and to transport it to Canada, that a third
person had contacted him for this purpose, that he did not know this
person's name, [...], that Gerald John Griffin did not know of the hashish,
that he only accompanied him for the purpose of tourism, that they spent
seven days in Ketama, doing sight-seeing during these seven days, that they
were lodged at the house of an Moroccan friend, who was a friend of his
Canadian friend (I.G.), [...]" [FN2]
- Upon enquiry, the examining magistrate was informed by Interpol in Canada
that the author had a prior criminal record for holding and distributing
narcotics, for which he had been sentenced to six months' imprisonment.
- Likewise, a letter, dated 9 October 1991, from the Solicitor General of
Canada, addressed to author's counsel in Canada, belonged to the documents
bearing on the case; in this letter, counsel was informed that the author
had been granted a pardon under the provisions of the Criminal Records Act.
- According to forensic experts in Melilla, drug traffickers generally claim
that one of them is innocent. In evaluating the evidence in drug trafficking
offences, the courts do not only consider the statements made by the
accused, but also the amount of drugs involved and the hiding place.
- The alleged inadequate preparation and conduct of the author's defence at
the trial cannot be attributed to the State party, as counsel was privately
Besides, the State party submits, counsel's professional skills are
reflected in her letter of 22 November 1991, addressed to the Colegio de
Abogados of Melila. In this letter, counsel states that, on 30 October 1991,
she informed the author of his sentence, and of the possibility to appeal to
the Supreme Court by way of request for cassation, either with the
assistance of a solicitor and barrister assigned to him by the judicial
authorities, or by retaining them privately. The author instructed her to
prepare and file a petition for leave to appeal, which she set out to do on
2 November 1991. However, on 8 November 1991, the author informed her of his
decision to retain another lawyer for the purpose of the appeal. By
registered letter of 11 November 1991, she pointed out to the author that he
had to grant power of attorney to any lawyer retained by him. She further
informed him that she would forward all documents in his case to his
representatives, once he had provided her with their names and addresses,
and once he had paid the outstanding fees. On 21 November 1991, she was
notified that the Audiencia de Malaga considered that the appeal had been
prepared and that it summoned the defence to appear before the Supreme Court
in fifteen days. She then immediately called the author and again pointed
out to him the urgency of empowering the solicitor and barrister who would
represent him. Upon contacting the barrister who, according to the author,
had agreed to represent him, she was told that he was not in charge of the
The State party points out that subsequently, counsel, concerned about the
expiration of the statute of limitations and about the fact that the author
did not take any measures to secure legal representation, requested the
Colegio to intervene.
She further requested the Supreme Court, on 29 November 1991, to assign
legal assistance to the author and to stay the proceedings in the
intervening period. The State party submits that it was only after counsel
intervened that the author himself requested legal aid.
- Both accused made statements during the trial, while assisted by an
interpreter and lawyer. No complaints were ever received about the
competence of the court interpreter who is assigned to the tribunals of
- It is noted that the judge asked R. L. and not the author whether he was
always accompanied by the latter, whereupon R. L. answered "that the author
accompanied him during the whole trip". According to the State party, the
judges concerned never directed any question to the author.
- On 15 June 1992, the Supreme Court dismissed the author's appeal; the
written judgment was issued on 3 July 1992. The State party submits that the
author was adequately represented on appeal; in this context, it refers to
the grounds of appeal. It further submits that the barrister who was
assigned to the author and who filed the grounds of appeal, received a
telephone call from another lawyer, who requested permission, on behalf of
the Canadian Embassy, to conduct the author's defence before the Supreme
Court. By letter of 15 June 1992, the barrister granted permission.
4.5 The State party reiterates that the author has not applied for amparo
before the Constitutional Court, although it was adequately explained to him
how to proceed.
5.1 In his comments, the author addresses primarily matters of substance. He
reiterates that he has exhausted domestic remedies and encloses letters
addressed to him by the Ombudsman, and the Registrars of the Supreme Court
and of the Constitutional Court. The Ombudsman, by letters of 11 December
1991 and 7 April 1992, informed the author of his right to legal
representation and that it could not be of any assistance to him while the
judicial proceedings were still pending in his case. By letter of 5 February
1992, the Registrar of the Constitutional Court informed the author about
the requirements for the recourse of amparo, among which:
- enclosure of a copy of the decision from which leave to appeal is sought;
- exhaustion of all remedies available concerning the protection of the
constitutional rights invoked;
- the request for amparo should be made within twenty days following the
notification of the decision which allows no further appeal;
- representation by a solicitor and barrister; a request for legal aid
should be accompanied by a detailed report of the facts on which the
recourse of amparo is based.
The author was further informed that his letter would be sent to the
Prosecutor General who would take action in his case if deemed necessary.
Issues and proceedings before the Committee:
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
6.2 The Committee has taken note of the State party's contention that the
communication is inadmissible because the author has failed to apply for
amparo before the Constitutional Court, and of the procedural requirements
that must be met if one wants to avail himself of this remedy. It notes the
author's allegation, which remains uncontested, that, after two years of
imprisonment, he had not received any of the court documents in his case,
which are a requisite for an appeal to the Constitutional Court. The
Committee further observes that the Supreme Court dismissed the author's
appeal on 15 June 1992, that he was informally notified of this decision at
the end of June 1992, and that the lawyer who had been appointed to him did
not contact him to date. In the circumstances fo the case, the Committee
does not consider that a petition for amparao before the Constitutional
Court was a remedy available to the author. Furthermore, taking into account
that the statutory limits for filing a petition for amparo have expired this
remedy is no longer available. It is not apparent that the responsibility
for this situation is attributable to the author. Therefore, the Committee
does not find itself precluded from considering the communication under
article 5, paragraph 2(b), of the Optional Protocol.
6.3 The Committee considers that the author has failed to substantiate, for
purposes of admissibility, his claims under articles 9, paragraph 1, 17, and
26 of the Covenant. Accordingly, this part of the communication is
inadmissible under article 2 of the Optional Protocol.
6.4 The Committee notes that the author has invoked article 7 in respect of
his allegations concerning the events and conditions of the prison in
Melilla. It finds, however, that the facts as described by the author fall
within the scope of article 10 of the Covenant. It concludes that the
author's claims may raise issues under articles 9, paragraph 2, 10 and 14 of
the Covenant, which should be considered on their merits.
7. The Human Rights Committee therefore decides:
(a) that the communication is admissible in as much as it appears to raise
issues under articles 9, paragraph 2, 10 and 14 of the Covenant;
(b) that in accordance with article 4, paragraph 2, of the Optional
Protocol, the State party shall be requested to submit to the Committee,
within six months of the date of transmittal to it of this decision, written
explanations or statements clarifying the matter and the measures, if any,
that may have been taken by it;
(c) that any observations or statements from the State party shall be
transmitted pursuant to rule 93, paragraph 3, of the Committee's rules of
procedure to the author, with the request that any comments he may wish to
submit thereon should reach the Committee, care of the Centre for Human
Rights, United Nations Office in Geneva, within six weeks of the date of the
(d) that this decision shall be transmitted to the State party and to the