CCPR/C/125/D/2657/2015 Annex [Original: English] Individual opinion of José Manuel Santos Pais (dissenting) 1. If we are to rely exclusively on the facts submitted by the author, we may conclude that the author’s rights under article 7 of the Covenant were violated. However, there are enough elements in the file to cast legitimate doubts as to the author’s overall credibility. 2. The author was stopped by officers of the Guardia Civil on 6 December 2007 in the Basque Country, carrying a revolver (para 2.1), and arrested for belonging to the terrorist organization ETA. He was detained by the Guardia Civil – subject to the oversight of Central Investigative Chamber No. 2 of the National High Court – until he was brought before a judge on 11 December 2007. As an assessed proportional, necessary and appropriate measure, the judge ordered the author held incommunicado owing to evidence of his participation in terrorism-related offences. He was later sentenced to 12 years’ imprisonment by decision No. 35/2009 of the Criminal Chamber of the National High Court (para. 6.1). 3. According to the author, during the five days he spent at the General Directorate of the Guardia Civil in Madrid before being brought before the National High Court, he was subjected to sleep deprivation, forced to perform thousands of push-ups daily, suffocated multiple times with a plastic bag over his head, jabbed three times at the top of his spine, drenched in icy water over his head and body and penetrated anally with a stick (para. 2.4). 4. However, the forensic doctor who visited him daily only refers to slight ligature marks and to a minor scratch on the right side of the abdomen, and notes that the author was anxious but did not want to talk about his treatment (para. 2.5 and footnote 1). 5. On 11 December 2007, the last day of his incommunicado detention, the author states that he was repeatedly hit in the face, causing wounds to his mouth, and his penis and testicles were tied with a rope and pulled until his penis began to bleed (para. 2.7). The forensic doctor, who recorded the author’s complaint of five days of ill-treatment before the National High Court, noted a bruise on the upper portion of the penis, although of just 3 mm, minor sores on the inside of the upper lip and loss of voice (para. 2.8). 6. However, the State party claims the author bore no marks of having been hit on the head, chest, abdomen or legs, his anus and testicles were normal and showed no traces of violence and there were no signs of suffocation. According to the medical report drawn up at the prison on 13 December, no wounds or noteworthy acute psychological or physical disorders were observed upon arrival and the author’s overall condition was good (para. 6.4). 7. Furthermore, the doctor who examined him noted that the minor sores inside the upper lip could have been caused by, inter alia, an accidental bite, a toothbrush or ingestion of hot food; the 3-mm bruise on the penis could have been caused by a rope being tied around the penis (para. 6.5), but allows also for other causes to be considered. 8. The admission report in Soto del Real prison in Madrid did not mention wounds found by the forensic doctor a few hours before but reflects only wounds mentioned by the author, without noting any physical traces likely to substantiate his claims. No wounds were observed at that time (paras. 2.9, 2.13 and 6.4). 9. The High Court, which noted that torture would not necessarily leave a physical trace and that in some offences it is only possible to rely on the victim’s account, ordered the launching of a thorough investigation (para. 2.15). However, this reasoning entails for States parties a probatio diabolica, where it may be almost impossible for States to eliminate all possible hypotheses of alleged violations. 10. On April 2011, at judicial request, a report by a forensic doctor from the Basque Forensic Institute was issued, indicating that the author’s wounds were consistent with his account, constituted temporary superficial trauma and, in the absence of complications, 14 GE.19-13559