The Basque regional Government commissioned a report about Torture between 1960 and 20131 from a group of Forensic experts at the Basque Criminology Institute. According to their findings, published in their report in December 2017, 4113 individuals reported having been subjected to torture while under arrest. The report included the application of the Istanbul Protocol to a randomly selected sample of 202 individuals. The report found that out of the sample 11% of the cases had a maximum credibility, 46% were very consistent, 41% were consistent and 2% were inconsistent regarding the existence of torture but consistent with inhuman or degrading treatment as well as the use of excessive force during arrest.
In January 2018, the Spanish Government blocked the decision by the Government of Navarre to commission a similar report.
The Spanish Government has always denied the existence of systematic torture against Basque activists and has repeatedly referred to an alleged “ETA handbook” ordering activists to report torture even if it had not taken place.
Despite those claims, there are at least three main arguments to maintain that either torture existed or, at least, has not been acted against by the Spanish Government:
- Whenever ETA members have been arrested on French soil they have always keep silent, not a single ETA member has ever provided a statement or confession to French officers. However, ETA members arrested in Spain have provided full, incriminating statements, including passwords for encrypted data containers, locations of weapons caches and other information that would never have been obtained if not provided by the detainee. Political activists, journalists or youth accused for street-rioting/sabotage have also provided self-incriminating statements and reported having done so as a result of torture.
- The Spanish refusal to apply the long standing basic recommendations of the CPT is clear proof of their lack of willingness given that the recommendations were as simple as to ensure:
– The right to be assisted by a lawyer of your own choice in private
– The right to a medical examination by a doctor of your own choice
– The right to communicate to a family member the fact and place of detention
- Lack of investigation of reported torture and protection and promotion of convicted torturers. Only 3% of the formal complaints were investigated, all the rest being automatically dismissed; on the rare occasions when officers from either the Policia Nacional or Guardia Civil were convicted, a half of them were later pardoned (28). One, a “José Domínguez Tuda” received two consecutive pardons. Most convicted torturers received promotions and awards and some have reached the highest ranks.
During the CPT visit to Spain in 2001 [CPT/Inf (2003)], the CPT delegation held consultations, among others, with the representative of the Judicial Police, José María de las Cuevas Carretero, who was convicted for torturing Kepa Urra in 1992. After the conviction, he was received by the President of the Spanish Government in his residence, the Moncloa, on 15 July 1999, and the following day he was pardoned by the Government.
Five of the torturers of Joxe Arregui, who died under torture in February 1981, were convicted and jailed for that crime for a short while. A protest by their fellow officers forced a new trial and finally only two were convicted (3 months of arrest and 2 and 3 years disqualification from public employment). All five of them received multiple awards and were subsequently promoted to positions of high responsibility, even to a key position as the Commissioner General of the Judicial Police.
The ECHR has convicted Spain eight times for not conducting proper investigations into torture complaints, one of the best known cases, the case of the Egunkaria daily newspaper chief editor Martxelo Otamendi, was considered by the ECHR. The Court convicted the Kingdom of Spain in 2012 for failing to investigate Mr Otamendi’s torture complaint. The court recalled the Spanish refusal to apply the long standing recommendations of the CPT.
On 13 February 2018 the ECHR convicted Spain for the Inhuman and Degrading Treatment of two Basques arrested in 2008. The case of Igor Portu and Mattin Sarasola is the first time the ECHR convicts the Kingdom of Spain for Inhuman and Degrading Treatment as opposed to convicting Spain for not investigating complaints.
The Province Court of Gipuzkoa convicted four Guardia Civil, but the Supreme Court overturned the decision, questioning the claimants’ version -partially admitted by the Provincial Court- and denying any value as evidence of the forensic reports, arguing that they were founded on false premises.
3 of the 7 magistrates of the European Court of Human Rights expressed a joint partly dissenting and partly concurring opinion, stating that it was “almost indisputable” that there was torture. In other words, they believe the Kingdom of Spain was not only responsible for the Inhuman and Degrading Treatment of these two citizens, but also of torture.
We shall note that under human rights guidelines all legal proceedings in which there is a suspicion of inhuman and degrading treatment or torture are void. Given the impact of torture in the Basque Conflict, several voices have raised the need to review convictions of for terrorism-related offences.