CAT/C/20/D/59/1996
page 7
5.3
As to the author’s allegation that her conviction violated article 15 of
the Convention, the Committee noted the comment in the judgement of the
National High Court that the statements made to the police by the accused
(including the author) had not been taken into consideration because of the
possibility that torture had been used. The author’s conviction was based on
other, uncompromised, voluntary statements made when the accused had been
accompanied by counsel of their own choosing. In the circumstances, the
Committee found that the author’s claim of a violation of article 15 lacked
the requisite corroboration, rendering it incompatible with article 22 of the
Convention.
5.4
The Committee therefore decided that the communication was admissible
inasmuch as it raised issues relating to articles 12 and 13 of the Convention.
Submission of the State party on the merits
6.1
In a submission of 10 November 1997 the State party reiterated that,
although the author had been assisted by seven lawyers in the proceedings
against her, not a single complaint or report of maltreatment had been
presented via the domestic means of redress and that Court No. 44 had
initiated the investigation without any application from the individual
concerned, who was not even represented in court as an interested party when
the compulsory offer of recourse was made to her. This attitude on the part
of the author was curious since at the same time she reported the alleged
maltreatment to several international bodies. From 9 September 1994, the date
on which she requested the revocation of the stay of proceedings, until
4 April 1995, when the shelving order was made, the author did not request any
investigation or produce any evidence. Her report of alleged maltreatment was
inconsistent with this passive behaviour - not taking any action via the
domestic means of redress, not being represented as a party directly involved
in the official investigation, and reactivating an investigation but taking no
part in it for six months.
6.2
The State party submitted, with respect to article 13 of the Convention,
that insofar as this article refers to the right to complain, its application
in the present case would be limited to the period beginning with the author's
representations to Court of Investigation No. 44 following the order for a
stay of proceedings, representations which marked the reopening of the
investigation. Less than 15 months elapsed between the reopening of the
investigation and the decision of the Constitutional Court. The investigation
was in progress for six of these months, and during these six months the
author, assisted by lawyers, did not submit a single document to the Court and
did not produce or propose any evidence. In the remaining nine months after
the shelving order, the applications to the Court of Investigation, the
Provincial High Court and the Constitutional Court were submitted, heard and
ruled upon. Accordingly, the State party did not fail to fulfil its
obligations under article 13 of the Convention.
6.3
With regard to article 12 of the Convention, the State party submitted
that the Spanish system of protection against maltreatment has procedures for
safeguarding that right, including in cases, such as the present one, when the
party concerned takes no action. When the author entered the
Penitentiary Centre on 3 February 1992, she was given a medical examination.