CAT/C/30/D/219/2002 page 6 2.12 By judgement of 21 October 2002, the Federal Tribunal dismissed the complainant’s action, upholding the decision of the Federal Office of Justice to grant the Spanish extradition request. The Tribunal based itself on the facts set out in the extradition request and concluded that the complainant was punishable under Swiss law (either as a participant in or as a supporter of a terrorist organization pursuing the objective to commit politically motivated crimes of violence) as well as under Spanish law. The Tribunal did not pronounce itself on the complainant’s challenges as to the facts contained in the extradition request, ruling that questions of facts and evidence were for the Spanish courts to decide. Moreover, since ETA was not merely a group struggling for political power by employing legitimate means, the Tribunal did not consider the complainant’s participation in or, respectively, her support of ETA a political offence within the meaning of article 3 of the European Convention on Extradition. The fact that criminal proceedings against the complainant had been closed by the Berlin public prosecutor’s office for lack of a reasonable suspicion of an offence did not, in the Tribunal’s opinion, bar the Swiss authorities from extraditing her to Spain because the decision to close proceedings was not based on material grounds and had been taken by a third State.6 With respect to the alleged risk of torture following the complainant’s extradition to Spain, the Tribunal held that Spain, being a democratic State and a member of the pertinent regional and universal human rights conventions, could not be presumed to systematically practise torture. Moreover, the Tribunal rejected the claim that the charges against the complainant were primarily based on testimony extracted by torture, in the absence of any supporting evidence.7 2.13 According to counsel’s information, the complainant was extradited to Spain after the Committee, on 6 January 2003, decided to withdraw its request for interim measures. The complaint 3.1 Counsel claims that following an extradition to Spain, the complainant would be at risk of being tortured during a maximum of five days of incommunicado detention and that Switzerland would, therefore, be violating article 3 of the Convention if she were extradited to Spain. In substantiation of this claim, counsel refers to several reports8 on instances of torture inflicted on suspected members or supporters of ETA as well as to the Committee’s views on Communication No. 63/1997 (Josu Arkauz Arana v. France)9 concerning the extradition of an ETA suspect from France to Spain, where the Committee stated that “notwithstanding the legal guarantees as to the conditions under which it could be imposed, there were cases of prolonged detention incommunicado, when the detainee could not receive the assistance of a lawyer of his choice, which seemed to facilitate the practice of torture”.10 Counsel also submits that, in the absence of guarantees from the Spanish authorities, the author could not, in practice, obtain access to a lawyer of her choice and to diplomatic protection by Germany until after incommunicado detention had ended. Furthermore, counsel argues that the numerous reports on cases of torture and maltreatment in Spanish prisons indicated a consistent pattern of gross, flagrant or mass violations of human rights, a finding which was reinforced by the fact that ETA suspects had been killed in the past by death squads (Grupos Antiterroristas de Liberación/GAL) linked to the former Spanish Government. In counsel’s view, the complainant’s personal risk of being tortured was increased by the fact that the Spanish extradition request had been based on false charges, which indicated that Spain was unwilling to grant the complainant a fair trial. In the absence of any clear evidence against the complainant, it was not excluded that Spanish police would try to extract a confession by torture.