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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 3 May 2005,
Having concluded its consideration of communication No. 194/2001, submitted
by Ms. Iratxe Sorz�bal D�az 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, her counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention Against Torture
1.1 The complainant is Iratxe Sorz�bal D�az, born on 6 November 1972, a
Basque of Spanish nationality who is currently being held in the �vila II
prison in Spain. She is represented by counsel. The complainant approached
the Committee on 8 August 2001 stating that she had been a victim of
violations by France of article 3 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment by virtue of her
expulsion to Spain.
The Facts as Submitted by the Complainant
2.1 The complainant states that in 1997, fearing arrest and torture by the
Spanish security forces, she took refuge in France. In November 1997, she
was arrested by the French police, who brought her before the examining
magistrate in the Paris procurator's Anti-Terrorist Section. She was later
charged with possession of false administrative documents and participation
in a criminal association and was immediately imprisoned.
2.2 On 12 February 1999, the complainant was sentenced to three years'
imprisonment, one of them suspended, for the above-mentioned offences. She
appealed to the Paris Court of Appeal.
2.3 On 31 August 1999, the Minister of the Interior issued an order for her
expulsion from French territory as a matter of absolute urgency, which was
not served on her immediately.
2.4 On 12 October 1999, the Paris Court of Appeal sentenced her without the
right to appeal to three years' imprisonment, one of them suspended, and
five years' ban on entry into France, in respect of the charges against her.
2.5 The complainant was due to be released on 28 October 1999. She says
that, fearing torture by the Spanish security forces and in order to prevent
her expulsion to Spain, she began a hunger strike on 28 September 1999. She
states that, as a result of her very poor state of health following her long
hunger strike, she weighed only 39 kilos and was therefore taken to the
Fresnes prison hospital.
2.6 At 6 a.m. on 28 October 1999, the day of the complainant's release, the
French police served her with the expulsion order issued on 31 August 1999
by the Minister of the Interior, as well as a second decision taken on 27
October 1999 by the Prefect of Val de Marne, specifying Spain as the country
of destination. The complainant was immediately taken in an ambulance by the
French police from Fresnes prison to the Franco-Spanish border post of La
Junquera for expulsion to Spain, and then taken to the Bellvitge hospital in
Barcelona.
2.7 The complainant alleges that she was arrested by the Spanish Civil Guard
at her home in Hernani, Gipuzkoa, on 30 March 2001 and that on the following
day, while being held in custody, she was urgently transferred to the San
Carlos hospital in Madrid, where she remained until 7 p.m., because of
torture inflicted on her: beatings, la bolsa, [FNa] touching and attachment
of electrodes to her body. She adds that she was subjected to 16 hours of
questioning and continuous violence, and held in custody without contact
with her lawyer or her family for more than five days before being brought
before a judge.
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[FNa] This form of torture consists in covering the head with a plastic bag
to cause asphyxia.
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2.8 The complainant alleges that on the same day, 31 March 2001, in the
presence of an examining magistrate and a court-appointed lawyer, she was
obliged to make a statement which the Civil Guards had forced her to learn
by heart, by threatening further torture.
2.9 The complainant points out that on 4 April 2001, before the National
High Court, she refused to enter a plea and complained of the torture she
had suffered. An order to imprison her then arrived, and she was taken to
the Soto del Real prison. Following her arrest, she was accused of
participating in several acts of violence.
2.10 As far as the requirement of exhausting domestic remedies in France is
concerned, the complainant states that she was unable to seek an effective
remedy in the French courts against the expulsion order of 31 August 1999 or
the decision of 27 October 1999, since they were served on her on 28 October
1999, the day of her release. She states that she had been cut off from all
contact with her counsel, and that she had been immediately taken to the
border post of La Junquera for expulsion to Spain and was therefore unable
to seek an effective remedy against measures that had already been carried
out. However, her counsel did lodge an appeal a posteriori, which was
submitted on 23 December 1999 and received by the court on 27 December 1999,
and is now pending before the administrative court, which has not yet
delivered its judgement.
2.11 The complainant states that the same matter has not been submitted
under any other procedure of international investigation or settlement.
The Complaint
3.1 According to the complainant, France did not comply with its obligations
under the Convention, since she was expelled to Spain although there were
substantial grounds for believing that she would be in danger of being
subjected to torture in Spain. She states, first, that she had taken refuge
in France in 1997 for fear of torture in Spain, and, secondly, that she had
been found guilty by the French authorities of being an alleged militant of
the secessionist organization ETA and that, despite the serious accusations
made against her, no request for her extradition had been made by the
Spanish authorities. She adds that her expulsion to Spain meant that she
could enjoy no protection from the courts.
3.2 The complainant states that she was the subject of an "extradition in
disguise", since France was well aware of the risks she would face on
Spanish soil, especially as attention had been drawn to those risks by
certain public figures and international bodies, as well as several
non-governmental organizations.
3.3 The complainant alleges that France infringed article 3, paragraph 2, of
the Convention, since the practice of torture persists in Spain, and a State
party to the Convention must bear such circumstances in mind when taking a
decision regarding expulsion.
State Party's Observations on Admissibility
4.1 In a reply dated 6 March 2002, the State party disputes the
admissibility of the complaint on the grounds that domestic remedies have
not been exhausted. It considers that the appeal against the expulsion order
is still pending before the Paris administrative court, and that the
complainant failed to lodge an appeal seeking the annulment of the order
specifying Spain as the country of destination. Such an appeal would have
enabled the competent administrative court to check whether the decision was
in conformity with France's international commitments, in particular article
3 of the Convention.
4.2 The State party notes that such an appeal could have been lodged as soon
as the decision had been notified; the decision contained an indication of
the appeal procedure and deadlines. Moreover, the appeal could have been
accompanied by an application for a stay of execution and a request for the
temporary suspension of the enforcement of the decision under article L.10
of the Code of Administrative Courts and Administrative Courts of Appeal,
which was in force at that time.
4.3 The State party adds that although, in the decision of 9 November 1999
in relation to communication No. 63/1997, Josu Arkauz Arana v. France, [FNb]
the Committee concluded that the complaint was admissible, in view of the
fact that "an appeal against the ... deportation order issued in respect of
the complainant ... 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[, and] ... the Committee [against
Torture] therefore decided ... that the communication was admissible", the
State party nevertheless invites the Committee to re-examine its position in
the light of the following considerations. The possibility of automatic
enforcement of expulsion measures on grounds of public order is allowed for
under article 26 bis of the ordinance of 2 November 1945. It addresses the
need to deport effectively and promptly aliens whose presence in France
constitutes a threat to public order, insofar as allowing them to remain at
liberty in France could not but lead to a resumption of their activities
endangering public order. However, French law allows judges of
administrative courts discretion to order a stay of execution of deportation
measures or the temporary suspension of their application.
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[FNb] Communication No. 63/1997, Josu Arkauz Arana v. France: Views adopted
on 9 November 1999 (CAT/C/23/D/63/1997, document dated 5 June 2000, para.
11.5).
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4.4 The State party also notes that the Act of 30 June 2000, which entered
into force on 1 January 2001, enhanced the powers of interim relief judges
by providing, in particular, for the stay of measures infringing on a
fundamental freedom, the judge being required to rule within 48 hours from
the lodging of the application.
The Complainant's Comments on the State Party's Observations
5.1 In her comments on the State party's reply, the complainant recalls that
with regard to domestic remedies, it was only at 6 a.m. on 28 October 1999
that the authorities notified her of the content of the expulsion order
issued on 31 August 1999 by the Minister of the Interior. The French
authorities appear to have deliberately kept her in ignorance of the
expulsion order issued against her two months previously. At the same time,
the police notified her of the decision taken by the Prefect of Val de Marne
to specify Spain as the country of destination.
5.2 The complainant adds that she had been held in Fresnes prison, cut off
from any contact with her family and her counsel, and was absolutely unable
to warn them of her imminent expulsion. She was thus materially prevented by
the French authorities from lodging an appeal against the expulsion order
and the Prefect's decision. Similarly, it was materially impossible for her,
at 6 o'clock in the morning, to apply to an administrative court for a stay
of execution or the temporary suspension of these two decisions. In
addition, in that regard, the French Government refers to the Act of 30 June
2000, which was not in force at the time of the events.
5.3 The complainant states that domestic remedies cannot be considered to be
effective and available, and that such remedies cannot give satisfaction to
an individual who is a victim of a violation of article 3 of the Convention,
since they cannot prevent the expulsion of the person concerned to a country
where he or she faces a risk of torture. The complainant notes that, under
article 22, paragraph 5 (b) of the Convention, the rule of the exhaustion of
domestic remedies does not apply. She adds that the application of domestic
remedies is unreasonably prolonged, whereas judicial decisions are enforced
immediately after the person concerned is notified of them.
5.4 The complainant points out in that regard that her complaint displays
great similarities with the Arana case. In this case too, domestic remedies
cannot be regarded as effective and available since such remedies cannot
give satisfaction to an individual who is the victim of a violation of
article 3 of the Convention, as they cannot prevent the expulsion of the
person concerned to a country where he or she faces the risk of torture.
Hence she was unable to seek an effective remedy before the French courts
against measures which had already been enforced or to apply to the judge of
an administrative court for a stay of execution or for suspension.
5.5 Lastly, the complainant maintains that in her case the rule of the
exhaustion of domestic remedies does not apply since the application of
domestic remedies is unreasonably prolonged, whereas judicial decisions are
enforced immediately after the person concerned is notified of them.
The Committee's Decision on Admissibility
6.1 At its twenty-ninth session the Committee considered the question of the
admissibility of the complaint and ascertained that the same matter had not
been and was not being examined under another procedure of international
investigation or settlement. Concerning the question of whether domestic
remedies had been exhausted, the Committee noted that it had been impossible
for the complainant to seek an effective remedy against the expulsion order
and the decision specifying Spain as the country of destination, as there
had been no time to act between the serving of the orders and the
enforcement of the expulsion. The Committee considered that in the present
case, the criterion followed in the Arkauz Arana case applied, since an
appeal against the ministerial deportation order issued in respect of the
complainant on 31 August 1999 but served on the very day of her expulsion,
at the same time as the order indicating the country of destination, would
not have been effective or even possible, since 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 against Torture decided on 20 November 2002
that the communication was admissible.
State Party's Observations on the Merits
7.1 The State party, in its observations of 22 October 2003, notes that in
accordance with the decision on admissibility in the Arana case, the issue
before the Committee in the present case is not whether the complainant was
actually subjected to acts in breach of article 3 in March 2001 but whether,
on the date of the enforcement of the removal measure, the French
authorities could have considered that she would face real risks in the
event of her return to Spain. But it was not possible to reach that
conclusion on the basis of examination of her situation.
7.2 The State party adds that there is no reason to rule out sending members
of ETA back to Spain as a matter of principle. There is no "consistent
pattern of gross, flagrant or mass violations of human rights" within the
meaning of article 3, paragraph 2, of the Convention in Spain. Spain
conducts a policy of prevention and punishment of terrorist actions carried
out by ETA, as is perfectly legitimate, provided that the measures taken in
that regard comply with fundamental guarantees. The State party recalls that
Spain is a State governed by the rule of law that has entered into
international commitments relating to human rights, and respect for
individual freedoms is ensured inter alia by the independence given to the
judicial authorities. The State party further refers to a decision of 12
June 1998 handed down by the European Commission of Human Rights in a case
concerning France, in which the Commission ruled that the mere fact of
membership of ETA offered insufficient grounds for considering that, if sent
back to Spain, the person concerned faced a serious risk of being subjected
to treatment contrary to article 3 of the Convention.
7.3 The State party points out that no aspect of the consideration of the
individual situation of the complainant led it to believe that she would be
exposed to serious risks of torture or ill-treatment within the meaning of
article 3 of the Convention if she were sent back to Spain. Moreover, the
State party notes that the complainant did not apply to the French Office
for the Protection of Refugees and Stateless Persons for refugee status or
for the issue of a residence permit on grounds of territorial asylum. Since
the complainant did not take those steps, she did not indicate the personal
risks to which she now claims to have been exposed. Similarly, she did not
during her detention take any steps to seek admission to another country,
although she was aware of the fact that she had been banned from French
territory under a judicial decision and that on leaving prison she would be
liable to be sent back to Spain. The complainant was not the subject of any
national or international arrest warrant, nor a request for extradition. No
parallels can therefore be drawn with the Committee's decision in the Arana
case. It has been shown that, on arrival in Spain, the complainant was not
handed over to the police services as she claims, but was released to her
family. According to newspaper articles, no proceedings were engaged against
her in Spain at the time, thus explaining why she was left at liberty. It
was not until 30 March 2001, 17 months after her return to Spain, that the
complainant was arrested by the Spanish Civil Guard. She had remained in
Spain for that entire period, during which she had furthermore been very
openly engaged in political activity on behalf of the Basque cause, rather
than attempting to find a refuge in order to escape the "serious risks" of
torture she reports. The complainant merely alleges that she was subjected
to police surveillance. She makes no claim to have been subjected to house
arrest or prevented from leaving Spain. The State party notes that it is
difficult to understand why the complainant remained voluntarily on Spanish
soil for more than a year and a half and engaged in pro-Basque political
action.
7.4 The State stresses the absence of any link between the complainant's
expulsion from French territory and her arrest by the Spanish authorities
more than a year and a half later after she had remained in Spain of her own
free will. Her weak state during the period immediately following her return
does not suffice to explain the delay between the date of her removal and
the date of her arrest, nor the extended period she spent in Spain.
7.5 The State party adds that it is beyond the bounds of credibility to
maintain, as the complainant does, that the purpose of returning her to
Spain was to enable the Spanish police to question her about events prior to
her flight to France in 1997 and her return to Spain late in 1999.
7.6 In view of the nature of the acts in which the press claims she may have
been implicated - 20 or so acts of violence, some of them deadly - the
Spanish authorities would not have waited 17 months to question her about
those cases if they had seriously believed that she was involved. The mere
fact of her weak state could not have delayed her interrogation for 17
months if that had been behind her expulsion to Spain. The State party
therefore maintains that it is more likely that her arrest after such a
period of time was due to new factors, subsequent to her return, that could
not have been taken into account by France at the time when the removal
measure was enforced. It also emerges from newspaper articles that the
complainant's membership of the "Ibarra" commando was not known at the time
of her expulsion, and she was arrested in March 2001 immediately after being
implicated by another ETA member. The State party asserts that it could not
have taken these facts into account at the time when the expulsion order was
enforced.
7.7 For all the above reasons, no failure to comply with the provisions of
article 3 of the Convention can be deemed to have been established.
Comments by the Complainant
8.1 In a letter of 31 December 2003, the complainant maintains that special
situations conducive to the practice of torture exist in a very large number
of countries considered democratic by the international community. There is
no irrebuttable presumption that torture cannot exist in the States of the
European Union.
8.2 The complainant recalls the provision of article 2 of the Convention
that "no exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any other public emergency,
may be invoked as a justification of torture". She stresses that all the
international human rights bodies have periodically and repeatedly observed
persistent acts of torture and ill-treatment of persons suspected of acts of
terrorism by members of the Spanish security forces, and have noted that the
mechanism of incommunicado detention of persons held in police custody in
Spain under its anti-terrorist legislation was conducive to the practice of
torture. On several occasions officials found guilty of acts of torture have
been pardoned by the Spanish Government, thus creating a climate of impunity
and consequently encouraging the practice of torture. The complainant adds
that all these observations are corroborated by NGOs and contradict the
presumption put forward by the French Government that torture does not exist
in Spain.
8.3 The complainant repeats that prior to her expulsion she informed the
French authorities that she refused to be expelled to Spain. For that reason
she had undertaken a long hunger strike. The French authorities had had to
transfer her by ambulance with medical personnel in attendance because of
the deterioration in the state of her health. Numerous NGOs and public
figures had contacted the French Government in order to prevent her
deportation to Spain, but without success.
8.4 The complainant refers to the recommendations of the Committee against
Torture following its consideration of the second periodic report of France
submitted on 6 May 1998, whereby the State party was to pay greater
attention to the provisions of article 3 of the Convention, which applies
equally to expulsion, refoulement and extradition. [FNc]
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[FNc] See Official Records of the General Assembly, Fifty-third Session,
Supplement No. 44
(A/53/44), para. 145.
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8.5 The complainant stresses that the fact that she was not arrested on
arrival in Spain, nor interrogated by the security forces, was due to her
very poor state of health after 31 days of hunger strike. She points out
that it was incumbent on the State party to use every means to ensure the
protection of individuals from torture. She further recalls that, in a
letter of 11 January 2000 in reply to correspondence from a European Member
of Parliament, the Minister of Justice of France asserted that there was a
presumption that treatment in breach of article 3 of the European Convention
on Human Rights would not take place in Spain. In this way the French
Minister of Justice had given an official undertaking that the complainant
would not be subjected to ill-treatment in Spain. This fact had encouraged
her not to hide or flee, wrongly believing that she would not be subjected
to ill-treatment. In March 2001, however, the Spanish authorities ordered
her to be arrested and detained in custody, during which time she was
subjected to ill-treatment. The undertaking by France that the complainant
would not be tortured was thus not respected. There was a direct link
between her expulsion by France to Spain and the torture to which she was
subjected to in Spain.
8.6 Lastly, the complainant refers to the Committee's views concerning the
complaint T.P.S. v. Canada, [FNd] whereby the fact that the complainant's
fears were realized, and in particular the fact that he was actually
subjected to torture after being removed to a country where he alleged that
he was at risk of being subjected to ill-treatment of that nature,
constituted a relevant factor in gauging the seriousness of his allegations.
According to the complainant, it may be concluded from the fact that her
fears were realized that her allegations that she would be personally at
risk of being subjected to torture if she were deported to Spain were based
on substantial, established and credible evidence. The State party's
expulsion of the complainant to Spain therefore constituted a violation of
article 3 of the Convention.
Issues Before the Committee
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[FNd] Communication No. 99/1997, Views adopted on 16 May 1997.
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9.1 The Committee must determine whether the expulsion of the complainant to
Spain violated the State party's obligation under article 3, paragraph 1, of
the Convention not to expel or return ("refouler") an individual to another
State where there are substantial grounds for believing that he or she would
be in danger of being subjected to torture. In reaching its conclusion, the
Committee must take into account all relevant considerations in order to
establish whether the individual concerned would be at personal risk.
9.2 The Committee must determine whether the expulsion of the complainant to
Spain constituted a failure by the State party to fulfil its obligation
under that article not to expel or return ("refouler") an individual to
another State where there are substantial grounds for believing that he or
she would be in danger of being subjected to torture. In reaching its
conclusion, the Committee must, pursuant to article 3, paragraph 2, of the
Convention, take into account all relevant considerations, including the
existence in the State to which the complainant would be sent of a
consistent pattern of gross, flagrant or mass violations of human rights,
enabling the Committee to establish whether she was at personal risk. The
purpose of the exercise, however, is to determine whether the individual
concerned would be personally at risk of being subjected to torture in the
country to which he would return. Hence the existence of a consistent
pattern of gross, flagrant or mass violations of human rights does not as
such constitute a sufficient ground for determining that a particular person
would be in danger of being subjected to torture upon his return to that
country; additional grounds must exist 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 is in no
danger of being subjected to torture in the specific circumstances of his
case.
9.3 The issue before the Committee is whether, on the date of the
enforcement of the removal measure, the French authorities could have
considered that the complainant would be exposed to real risks in the event
of her expulsion. In making a determination, the Committee takes into
consideration all the facts submitted by the author and the State party.
Consideration of the facts shows that the author has failed to satisfy the
burden of proof and demonstrate in that expulsion to Spain placed her at
personal risk of torture at the time of her expulsion. In this regard the
evidence submitted by the author is insufficient, in that the primary focus
is an allegation that she was tortured 17 months after being expelled from
the State party.
9.4 The fact of torture does not, of itself, necessarily violate article 3
of the Convention, but it is a consideration to be taken into account by the
Committee. The facts as submitted to the Committee show that the author, on
her return to Spain, recovered her health without any interference and took
an active part in political developments in the country, promoting her views
without any need for secrecy or flight. Some 17 months went by before the
alleged acts of torture. The author offers no convincing explanation of why
her certain risk of torture, inter alia because of her familiarity with
intelligence of vital importance to the security of the Spanish State, did
not lead to immediate action against her. Neither does the author submit
evidence concerning events in Spain prior to her expulsion from French
territory that might lead the Committee to establish the existence of a
substantiated risk. The author has not demonstrated any link between her
expulsion and the events that took place 17 months later.
9.5 There being insufficient evidence of a causal link between the expulsion
of the complainant in 1999 and the acts of torture to which she claims to
have been subjected in 2001, the Committee considers that the State party
cannot be said to have violated article 3 of the Convention in enforcing the
expulsion order.
10. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention, consequently concludes that the expulsion of the complainant
to Spain did not constitute a violation of article 3 of the Convention.
[Adopted in English, French, Spanish and Russian, the French text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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