| |
1. The author of the
communication, dated 2 November 1997, is Aurelio Fernández Álvarez, a
Spanish national, who alleges that he is the victim of torture and
ill-treatment by Spain. Although the author has not alleged specific
violations of any of the provisions of the Covenant, his complaint would
seem to raise issues in connection with articles 7 and 10 of the
International Covenant on Civil and Political Rights. The author is not
represented by counsel.
THE FACTS
2.1 When the author submitted his communication in November 1997, he was
serving a sentence [FN1] in the penitentiary in Huelva, Spain. In his many
letters addressed to the Committee he complains of having been held under
the regime for extremely dangerous prisoners, under which various of his
rights were violated. In particular, he complains of having been beaten and
subjected to ill-treatment by prison officials in the various Spanish
prisons where he has been incarcerated.
-------------------------------------------------------------------------------------------------------------------------------
[FN1] According to the file, the author was serving sentences for several
offences of robbery with intimidation and a riot in 1981 in the Pontevedra
prison.
------------------------------------------------------------------------------------------------------------------------------
2.2 The author alleges that on several occasions in 1997, while he was being
held in the Puerto I penitentiary in Cádiz, he and other prisoners in the
isolation block were immobilized by being shackled to their beds. He adds
that they were insulted, beaten and had gas sprayed in their mouths, were
handcuffed to the bars of their cells and forced to remain naked. He further
states that the food served to them had gone bad; they were prohibited from
communicating with each other through the windows and were denied access to
athletic facilities; they were not provided with any medical care and
received death threats.
2.3 In a letter dated 25 October 1999, the author informs the Committee that
on 11, 12 and 17 September 1999 officials at the Madrid II penitentiary,
where he was then being held, handcuffed him, forced him to strip naked and
had him do deep knee bends for half an hour in their offices. He further
alleges that they beat and kicked him every time he stopped to rest, and
also held his head in a bucket of water from time to time. He maintains that
he was forced to remain in solitary confinement for up to five days
unattended. In a letter dated 9 June 2002, the author complains of further
physical assaults similar to those that occurred in 1999.
2.4 With regard to the exhaustion of remedies, the author has attached
various documents, according to which:
(a) On 17 August 1995 the prison supervision court removed the author from
the list of inmates who are kept under close observation (the FIES regime).
[FN2] On 8 January 1996, the Provincial High Court of Madrid upheld the
prison supervision court's decision, despite which the author continued to
be subject to the special regime.
(b) On 2 October 1996, when the author was an inmate at the Villanubla
penitentiary, Valladolid, he filed a complaint with the Valladolid prison
supervision court seeking to be released from the special regime. The author
alleges that on 8 January 1996 the Provincial High Court of Madrid [FN3] had
decided to remove him from the FIES roster, despite which he continued to be
confined in "special wings", where he had remained for seven years and
where, among other things, he was physically assaulted, handcuffed and
subjected to strip-searches and received constant death threats. The court
rejected his complaint on the grounds that the restrictions imposed on the
author were consistent with the prison regime applicable to him under the
Penitentiary Act, which stipulated that an inmate classified as being
extremely dangerous must be held in closed facilities or in special wings.
On 25 November 1996, the court rejected an application for review filed by
the author. On 30 June 1997, the Provincial High Court of Valladolid
rejected an appeal by the author.
-------------------------------------------------------------------------------------------------------------------------------
[FN2] FIES: Fichero de Internos de Especial Seguimiento. In an internal
judicial decision cited by the author there is a reference to the fact that
the FIES roster is simply a database that records criminal, court and prison
status of certain prisoners without dictating a way of life for the inmate,
and that the prison regime for the treatment of extremely dangerous
prisoners is governed by article 10 of the Act organizing the Penitentiary
System, which provides for the possibility of an isolation regime.
[FN3] At that time the author was serving a sentence at the Soto del Real
penitentiary, Madrid province.
-------------------------------------------------------------------------------------------------------------------------------
Subsequently, the author filed an application for amparo with the
Constitutional Court, alleging, among other arguments, the failure of the
Provincial High Court to state the grounds for its decision. At the time he
filed that application, the author was no longer in Valladolid but in the
Puerto I prison, Cádiz. The author stated in his application that he
continued to be subjected to degrading treatment and routine strip-searches;
that he was not allowed to have newspapers; that he was denied access to
athletic facilities; and that his belongings were treated roughly whenever
there was a cell inspection. On 30 November 1998 the Constitutional Court
rejected the application, holding that the restrictions imposed on the
author were consistent with the prison regime applicable to him as a result
of his classification as an extremely dangerous prisoner and that,
regardless of whether or not he agreed with that classification and regime,
the response of the judicial authorities could not be considered as contrary
to the Constitution. With regard to that decision, the author submits the
argument to the Committee that the court's decision referred only to the
issue of classification and did not deal with the complaints of physical
ill-treatment, torture, and degrading and humiliating treatment to which he
had been subjected. The author considers that he has exhausted all domestic
remedies. [FN4]
-------------------------------------------------------------------------------------------------------------------------------
[FN4] The main subject of the application, according to the document that
appears in the file, was the author's classification in the FIES regime. The
author does mention in that document that he was subjected to constant
degrading treatment, routine strip-searches and physical ill-treatment, but
he does not describe any particular incident.
-------------------------------------------------------------------------------------------------------------------------------
(c) On 13 March 1997, the author filed a complaint of ill-treatment against
the authorities of the Puerto I penitentiary.
(d) On 1 October 1997 the author filed a complaint with the Huelva examining
police court concerning incidents that occurred on 30 September 1997, at
which time he was allegedly beaten and handcuffed by prison guards. [FN5]
(e) On 26 January 1998, the author filed a complaint against the director of
the Moraleja penitentiary with the Palencia police court, alleging that he
had been held in solitary confinement, had been subjected to ill-treatment
and torture, had had his mail intercepted and had been denied permission to
participate in scheduled activities and sports. The author again cited the
failure to implement the decision of 8 January 1996. On 5 March 1998, the
court ordered that the investigation should be closed, as no offence had
been proved.
(f) On 4 May 1998, the author filed a complaint with the Oviedo prison
supervision court, alleging that he had been the victim of ill-treatment. On
15 June 1998, the court upheld the author's complaint in part and concluded
that the prison authorities had not fully justified a strip-search of the
author on 2 May 1998. [FN6] The author filed an application for review of
that decision, an application that was rejected by the court on 7 July 1998.
The author filed an appeal with the Provincial High Court of Oviedo, which
was rejected on 3 October 1998. The author filed an application for amparo
with the Constitutional Court, which was rejected on 25 October 1999 on the
grounds that the court of first instance had already resolved the matter.
(g) On 12 April 1999, the Constitutional Court rejected another application
for amparo submitted by the author against the decision issued on 10 June
1998 by the Provincial High Court of Huelva concerning a complaint by the
author that the prison authorities were not providing him with daily
newspapers.
(h) On 8 June 1999, the Supreme Court accepted in part the appeal filed by
the author against a ruling of the Disciplinary Commission of the General
Council of the Judiciary dated 27 January 1995 to set aside a complaint
lodged by the author in January 1995 against a prison supervision judge in
Valencia for failing to resolve his claims concerning his prison situation
in a timely manner. The Supreme Court's decision indicates that the author
had complained to the judge in order to be allowed to take walks
individually. The author maintains that, despite the decision of the Supreme
Court, the Council took no action in that regard.
-------------------------------------------------------------------------------------------------------------------------------
[FN5] The author provides no information on the outcome of these two
complaints.
[FN6] There is no information in the file about the consequences of this
decision or the reasons why the author appealed it.
-------------------------------------------------------------------------------------------------------------------------------
2.5 The author has also submitted the decision of the European Commission of
Human Rights of 25 November 1996 concerning a complaint of ill-treatment
during various incidents that took place in August 1993, October 1994,
December 1994, May 1995 and October 1995. The Commission found the complaint
inadmissible because domestic remedies had not been exhausted, since the
author had not applied to the Constitutional Court.
THE COMPLAINT
3.1 The author's basic allegation is that he has been subjected to inhuman
and degrading treatment and torture in the Spanish prisons where he has been
incarcerated under the special regime. He adds that the authorities have not
taken any measures to reintegrate or rehabilitate him, and that one proof of
this is that prisoners are denied access to newspapers.
3.2 The author alleges that, even though he was removed from the FIES roster
by decision of 8 January 1996 of the Provincial High Court of Madrid, the
prison authorities continued to subject him to a regime that restricted his
rights.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS
4.1 In its notes verbales dated 21 April 1999 and 23 August 1999, the State
party maintains that the communication is inadmissible on the basis of
article 5, paragraph 2 (a), of the Optional Protocol, since the author
submitted the same matter to the European Commission of Human Rights. In its
decision of 25 November 1996, the Commission found the complaint
inadmissible. The State party also maintains that the communication should
be found inadmissible in accordance with article 5, paragraph 2 (b),
inasmuch as the author has not exhausted domestic remedies. It adds that the
author has simultaneously brought his complaints before many domestic and
international bodies, and that when he has brought his claims to the
competent judicial organs, they have resulted in reasoned decisions. It
points out that the author generally fails to inform the Committee of
rulings that have been favourable to him.
4.2 According to the State party, some of the incidents reported by the
author were subsequently addressed by means of judicial decisions in his
favour. It adds that the complaints that were rejected were given thorough
and rational consideration, and that the author did not make use of the
proper remedies. The State party affirms that the author was removed from
the FIES roster by order of the Madrid prison supervision court dated 17
August 1995, as confirmed by an order of the Provincial High Court of Madrid
dated 8 January 1996, and that that ruling is being implemented.
4.3 The State party adds that the author complained of having been forced to
undergo a strip-search at the Villanubla penitentiary, and the Valladolid
prison supervision court upheld his complaint, holding that full searches
could only be made when there were grounds for believing that prisoners were
in possession of banned objects. The State party maintains that the
complaints submitted by the author and other inmates on 13 March 1997
concerning ill-treatment that allegedly occurred in the Puerto I
penitentiary were rejected on 20 May 1997 by the El Puerto prison
supervision court. It adds that the complaint of ill-treatment that
allegedly occurred in May 1997 in the same penitentiary was also rejected by
the El Puerto prison supervision court. There is no indication that the
author appealed these decisions.
4.4 In its submission of 26 October 1999, the State party adds that the
author, by his constant complaints of ill-treatment by the prison
authorities, is engaging in a kind of actio popularis that does not fall
under established procedures.
THE AUTHOR'S COMMENTS
5.1 In his letter of 25 October 1999 and other subsequent letters, the
author insists that he has exhausted all domestic remedies and submits
copies of many documents sent to administration and judicial authorities in
that regard.
5.2 The author has also submitted copies of two newspaper articles. One
article, dated 22 November 1999, refers to the alleged ill-treatment of the
author and the complaints filed; the other refers to complaints of
ill-treatment in Spanish prisons.
ADDITIONAL OBSERVATIONS OF THE PARTIES
6.1 On 4 March 2002, the author sent the Committee copies of 13 forensic
reports from various courts [FN7] dating from September 1998 to February
2001. He also sent a medical report of injuries from the Valencia
penitentiary dated December 1994. All these reports describe a variety of
contusions, abrasions and bruises.
-------------------------------------------------------------------------------------------------------------------------------
[FN7] Seven of these reports emanate from Alcalá de Henares examining court
No. 2 (Madrid province), one from examining court No. 3 and one from court
No. 7 of the same city, and two from Madrid prison supervision court No. 1.
The other two do not clearly show which court they pertain to.
-------------------------------------------------------------------------------------------------------------------------------
6.2 On 23 October 2002, the State party informed the Committee that the
author was classified as an extremely dangerous prisoner, in treatment level
I, under article 93, paragraph 1, of the Penitentiary Regulations, and that
he was subject to the regime applicable to that classification, which was
independent of the FIES regime, to which the author was no longer subject.
The State party also reported that Madrid prison supervision court No. 5, in
decisions dated 30 March 1999, had rejected two complaints by the author
regarding his classification, finding it to be appropriate in view of his
poor conduct in prison. There is no indication that the author has exhausted
domestic remedies in regard to these judicial decisions. The State party
reiterates that there has been no violation of the Covenant in this case.
6.3 By note verbale dated 6 November 2002, the State party stated that the
author had arrived at the Madrid II penitentiary on 14 September 1998
classified as level I. On 17 February 1999 the penitentiary had decided to
cancel the existing disciplinary sanctions and disciplinary file against him
and to place him under an ordinary regime. However, the author did not
cooperate with the prison authorities. After four days under the new regime
he attacked a prison guard and broke his hand; with the approval of the
prison supervision court he was returned to a level I prison regime in the
isolation block. [FN8] In relation to this incident he was subsequently
convicted of assault and battery and assaulting a person in authority. The
State party adds that the author displays very poor behaviour and is
involved in daily incidents, insults, threats and attacks; he was written up
for disciplinary matters 19 times in 2000, 58 times in 2001 and 16 times up
to that point in 2002. From April 1999 to January 2002, the author submitted
29 complaints against the prison authorities to the prison supervision
courts on various grounds. All those complaints were rejected. From April to
June 2002, another six complaints brought by the author were rejected by
prison supervision courts or by the Provincial High Court of Madrid.
-------------------------------------------------------------------------------------------------------------------------------
[FN8] Under this regime, the author can go out into the yard for two hours
in the morning and two hours in the afternoon, where he can participate in
sports and be in company with any other inmate in this block. He can read
and study and has access in his cell to television, books, magazines and
music.
------------------------------------------------------------------------------------------------------------------------------
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the complaint is admissible under the Optional
Protocol to the Covenant.
7.2 The State party maintains that the author's communication must be ruled
inadmissible on the basis of article 5, paragraph 2 (a), of the Optional
Protocol because the same matter was submitted to the European Commission of
Human Rights. In this connection, the Committee notes that the Commission's
decision refers to presumed violations that are alleged to have occurred
between August 1993 and October 1995, in relation to which the author
submitted to the Committee a medical report of injuries dated 22 December
1994. That part of the communication must therefore be considered
inadmissible according to article 5, paragraph 2 (a), of the Optional
Protocol.
7.3 The complaint before the Committee also refers to violations that
allegedly occurred after the above-mentioned dates. The Committee considers
that with regard to the incidents the author complains of that occurred
after 6 October 1995, the communication raises issues that are different
from those raised before the European Commission of Human Rights and
therefore should be examined to determine their admissibility.
7.4 The Committee takes note of the State party's observations that on
various occasions the prison authorities revised the prison regime
applicable to the author and that, although they tried to place him under a
more flexible regime, his aggressive behaviour and the frequent incidents
and fights with other prisoners and prison officials compelled them to place
him back under the regime reserved for dangerous prisoners. As a consequence
of these incidents the author was on several occasions subjected to
disciplinary measures. The Committee further notes the medical certificates
supplied by the author indicating the existence of injuries. These
certificates, dating from September 1998 to February 2001, when the author
was being held at the Madrid II penitentiary, refer to incidents that
allegedly occurred subsequent to the submission of the initial
communication. The author states that he complained of these incidents to
the judicial authorities, but there is no indication in the file that the
author appealed the decisions handed down by the lower courts. There is also
no indication that the author appealed the judicial decisions handed down
regarding the complaints he filed on 13 March 1997, 1 October 1997 and 26
January 1998. That part of the communication must therefore be considered
inadmissible according to article 5, paragraph 2 (b), of the Optional
Protocol.
7.5 The Committee observes that on 2 October 1996 the author filed a
complaint against the authorities of the Villanubla penitentiary,
Valladolid, regarding his prison regime, in which he mentioned the
ill-treatment to which he was subjected under that regime. When his
complaint was rejected at the lower court and appeal levels, the author
filed an application for amparo with the Constitutional Court. The Committee
considers that, in relation to those incidents, the author did exhaust all
domestic remedies. However, the Committee considers that the author's
complaints were not sufficiently substantiated to be able to conclude that
he was subjected to treatment that was in violation of articles 7 and 10 of
the Covenant, which therefore leads it to consider the communication
inadmissible under article 2 of the Optional Protocol.
8. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2 and article 5,
paragraph 2 (b), of the Optional Protocol;
(b) That this decision shall be communicated to the State party and the
author of the communication.
_______________________________
Adopted in English, French and Spanish, the Spanish 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. |
|
