E/CN.4/2004/56/Add.2
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groups and individuals claim that torture and ill-treatment by State security and police
forces is systematically used. The Special Rapporteur believes that he should not only
acknowledge that such divergent views exist, but that he also has the duty to draw further
conclusions on the basis of his own findings. In this regard, he attaches great value to the
opinion of credible interlocutors from the judiciary, the academic world and civil society
that certain actors and militants supporting radical Basque causes may well use as a tactic
the systematic practice of trumped-up allegations of torture and ill-treatment. At the same
time, these interlocutors also conveyed their opinion to the Special Rapporteur that
security and law enforcement agents, particularly in their counter-terrorist activities,
do resort more than sporadically to practices that constitute torture or cruel, inhuman
or degrading treatment. This opinion was shared by a considerable number of
non-governmental organizations that the Special Rapporteur met and was confirmed
by a series of testimonies presented to the Special Rapporteur by persons who had been
arrested, detained and interrogated by the State security and police forces. These
statements referred to treatment that included beatings, exhausting forced physical
exercises, asphyxiation by placing plastic bags around the head (“bolsa”) and humiliating
sexual harassment. It is the considered view of the Special Rapporteur, in the light of the
internal consistency of the information received and the precision of factual details, that
these allegations of torture and ill-treatment cannot be considered to be fabrications. The
Special Rapporteur does not conclude that the treatment just described would constitute a
regular practice but, in his view, their occurrence is more than sporadic and incidental.
59.
The Convention sets out a series of obligations to prevent and suppress practices of
torture and ill-treatment. Great importance must be attached to the obligation to
undertake a prompt and impartial investigation whenever there is reasonable ground to
believe that an act of torture has been committed (art. 12) and to the duty to have
allegations and complaints of torture promptly and impartially examined (art. 13). The
Spanish legal system does provide for investigative mechanisms and procedures, but there
are a number of reasons why this investigative capacity is underutilized and often
ineffective. The denial that the practice of torture or ill-treatment occurs, the deterrent,
repeatedly reported to the Special Rapporteur, that allegations of torture are countered by
criminal charges of defamation, and the questionable independence and impartiality of
internal accountability mechanisms with regard to law enforcement officials21 are among
the factors that contribute to the absence of an effective and prompt investigative practice
and policy as regards the issue of torture and ill-treatment.
60.
The Special Rapporteur fully shares the view repeatedly expressed by CPT that
experience has shown that it is in the period immediately following deprivation of liberty
that the risk of intimidation and physical ill-treatment is the greatest.22 It is crucial that in
this period of police custody effective safeguards against torture and ill-treatment be
ensured. These safeguards must weigh the more heavily when persons are held in
incommunicado detention, as provided for in the Spanish Code of Criminal Procedure with
respect to persons suspected of certain categories of crimes, including membership in or
connection with an armed group, terrorists or rebels. The issue of incommunicado
detention is always of special concern to the Special Rapporteur in view of the opinion
repeatedly expressed by the Commission on Human Rights that prolonged incommunicado
detention may facilitate the practice of torture and can in itself constitute a form of cruel,
inhuman or degrading treatment, or even torture.23 It is during this period that the
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