E/CN.4/2004/56/Add.2
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on the human rights situation in Spain. However, one particular factor that did come up
repeatedly and emphatically in the context of the mission and that has major negative
implications for human rights, particularly in terms of the rights to life and the security of
the human person, are acts and threats of terrorism. Over the years ETA has carried out
many acts of terrorism, including fatal bombings and shootings, that directly victimized
many hundreds of people and spread fear for their lives and security among many more.
The Special Rapporteur met with organizations and persons who live under the constant
threat of becoming victims of terrorist attacks. The Special Rapporteur also met with the
staff of an office that provides assistance to victims of terrorism. He fully associates
himself with the unequivocal condemnation by the General Assembly of all acts, methods
and practices of terrorism, in all their forms and manifestations, whenever and by
whomsoever committed, regardless of their motivation, as criminal and unjustifiable.16
57.
At the same time, the Special Rapporteur has to stress, as do the many
pronouncements to that effect by universal and regional human rights mechanisms, that
the lawfulness of counter-terrorism measures depends upon their conformity with
international human rights law.17 He noted with full approval that high Spanish political
office-holders were unequivocal in their assertion that all measures to combat terrorism
must remain within the confines of legality. In this connection, it must be recalled that, as
the Special Rapporteur has outlined and underlined at many occasions18 and as repeatedly
stated by all competent universal and regional human rights organs, the right to freedom
from torture and from cruel, inhuman or degrading treatment is absolute and
non-derogable in all circumstances. The Special Rapporteur notes in this regard that in
those instances where human rights may be subject to limitations, and even derogations, a
margin of appreciation may be granted to States, but that no such margin of appreciation,
or discretion, is allowed where a non-derogable right is at stake, such as the prohibition of
torture and cruel, inhuman or degrading treatment. In the same context, it should also be
noted that the absolute and non-derogable prohibition applies not only to torture as such,
but also to cruel, inhuman or degrading treatment or punishment. In submitting his
findings and conclusions in connection with his visit to Spain, the Special Rapporteur also
wishes to refer to the view of the European Court of Human Rights - expressed in relation
to certain acts that had been classified in the past as “inhuman and degrading treatment”
as distinct from “torture” - that the increasingly high standard being required in the area
of the protection of human rights and fundamental freedoms correspondingly and
inevitably requires greater firmness in assessing breaches of the fundamental values of
democratic societies.19
58.
The Committee against Torture, in its conclusions and recommendations,
adopted after examining the fourth periodic report of Spain on the implementation of
the Convention in November 2002, observed with concern the dichotomy between the
assertion of the State party that, isolated cases apart, torture and ill-treatment did not
occur in Spain and the information received from non-governmental sources which
revealed repeated instances of torture and ill-treatment by the State security and police
forces.20 The Special Rapporteur during his visit to Spain similarly encountered these
opposing views. According to the political authorities of the Spanish Government in
Madrid, continuous and repeated allegations of torture and ill-treatment are false and
fabricated, such allegations serving as a ploy to discredit the reputation of a country that is
democratic and respects the rule of law. On the other hand, certain non-governmental
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