CAT/C/30/D/219/2002 page 8 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 Pérez 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 Instrucción 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.11 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 Spain12 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. 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.13 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