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Spain: Reports detail abuses committed by police forces in demonstrations, prisons and against migrants, by Yasha Maccanico

01 October 2008

Social movements and people in detention are often on the receiving end of police violence and brutality at the hands of the Spanish state.

In July 2008, the Coordinadora para la prevención de la tortura (Cpt, composed of 44 groups and associations) published its fourth Annual Report on allegations of abuses committed by officers of Spain’s various police and security agencies, as well as members of the prison service. It provides detailed information and brief resumés of individual cases, as well as monitoring developments in judicial proceedings arising from lawsuits filed concerning incidents in past years. Since the report was released, the UN Committee for the Prevention of Torture (CPT) has formulated observations and recommendations in response to a report submitted by Spain, within the framework of co-operation with the Spanish government, in which it welcomed the resumption of dialogue after 12 years.

Further interesting developments have included the recognition by the European Court of Human Rights, in January 2009, of damages for a man injured by a teargas canister fired by the police during a demonstration in 1991, and a ruling by the Audiencia Nacional (the Madrid-based court with exclusive competence for serious crimes including terrorism and organised crime) on 21 October 2008. This dismissed a terrorist suspect’s confession on grounds that it was not “certain” that the claims were rendered in complete freedom in a “spontaneous and voluntary” manner. Moreover, in December 2008, the CPT wrote to Prime Minister, José Luis Rodríguez Zapatero, to complain about its exclusion, after initial involvement, from the drawing up of plans to implement Spain’s commitments under the Optional Protocol to the Convention against Torture, to which it adhered in April 2005, ratifying it a year later.

Report on instances of ill-treatment by officers in 2007

The 2008 report by the Network of Associations for the Prevention of Torture, which covers events in 2007, documents 319 cases of violence or ill-treatment affecting 689 people, adding that a large number have not been included at the request of the alleged victims, or because it was impossible for the associations involved to confirm the allegations. Moreover, the report argues that there are many instances when cases are not reported something that previously happened mostly when undocumented migrants were involved.

This is now spreading to people experiencing such treatment in the context of social protests and is occurring partly to avoid having lawsuits filed against them in response to their allegations or from a lack of confidence in the bodies responsible for investigating the allegations.

This means that the number of cases reported for each year is liable to increase over time. Thus, the 2005 report mentioned complaints by 755 people in 2004, whereas the figure for 2005 has now grown to 917. The cases included fall under the definition set in the 1984 UN Convention against Torture:

any act whereby a person is subjected to pain or serious suffering, both physical and mental for the purposes of obtaining information, punishment, intimidation or coercion, when they are inflicted by a public officer or another person in the exercise of their public duties at their behest or with their permission.

The figures in the 2008 report are similar, though marginally higher, to those recorded in 2007 when it documented 304 cases affecting 659 people. The data is broken down by region [autonomous communities], the responsible police bodies and details on who the people on the receiving end of violence are and the progress of lawsuits concerning torture and/or ill-treatment in the Spanish courts. The geographical distribution of the claims saw a continuing disproportion in Catalonia, Madrid, Andalusia and Euskadi (the Basque Country), which accounted for just over two-thirds (67.58%) of the complainants and slightly under two-thirds of the cases reported (63.13%). Next was Valencia, which had the same number of cases as Euskadi (28), although they involved slightly over half the people (56 compared to 100). La Rioja remained the only region from which no allegations were received, one of eight autonomous communities (alongside Asturias, Castille-Leon, Extremadura, Balearic islands, Cantabria, Murcia, Castille-La Mancha, as well as the Spanish north African enclaves of Ceuta and Melilla) where less than ten cases were reported, although there were more than ten people who reported ill-treatment in Asturias (12) and Castille-Leon (11).

Excluding Ceuta and Melilla (as they have under 100,000 inhabitants), if one considers these figures for autonomous communities in relation to their populations, the highest rate of people reporting such incidents was in Navarre (5.61/100,000 inhabitants), Euskadi (4.67), Madrid (2.27) and Catalonia (2), with a nationwide average of 1.52 complainants per 100,000 people. There were significant increases in Euskadi (from 46 to 100), Madrid (from 72 to 145) and Navarre (two-fold, from 17 to 34), possibly as a result of the worsening situation that followed the breakdown in the ceasefire and negotiations between ETA and the Spanish government and a resumption of terrorist attacks. Some cases involved people arrested in Euskadi and Navarre who were later taken to Madrid and are listed as pertaining to both the autonomous communities. After a considerable decrease noted in the report for 2006 concerning complaints by prisoners held incommunicado (6 cases), the figure shot up (to 43, 6.24% of the total) in 2007, probably due to the same developments. The other most significant increases were in Aragón (a 137% increase that was largely due to complaints filed by prisoners in Zuera prison) and in the Valencia region (up by 44%).

As for the people who were on the receiving end of alleged police brutality, the largest number were involved in social movements (227, equivalent to 32.95%), followed by migrants (14.80%) and prisoners (11.90%). Sixty deaths in custody are also reported, and the wide-ranging “others” category that includes incidents during sports events and city feasts, among others, accounted for over a quarter of the complaints. The police forces against which the most complaints were filed were local police forces (215), followed by the national police (187), autonomous community police forces (153, they operate in Euskadi, Navarre, Galicia and Catalonia, where the Mossos d’Esquadra accounted for half the complaints -72 out of 144-, whereas complaints against the Ertzainta were more than half of those in Euskadi -62 out of 100-), prison officers (83) and the Guardia Civil (76). Of the 60 deaths in custody reported, one third (20) was in Andalusia, and over half (36) occurred in prison establishments, ten in the custody of the national police (5 in Andalusia), four of the Guardia Civil, four of the local police forces, three of the autonomous community police forces and the same number in centres for minors.

Human Rights Committee recommendations

On 27 October 2008, the UN’s Human Rights Committee in Geneva issued its response to a report submitted to it by the Spanish government, in which it welcomed a number of positive developments including a National Plan for Human Rights. It also highlighted several ongoing concerns and formulated recommendations to address them. Among these, it stressed the need to define terrorism in a more restrictive way by limiting the application of articles 572 and 580 of the penal code (on sentencing for terrorist crimes) to offences that are unquestionably of a terrorist nature. As regards continuing reports of torture and ill-treatment, the report notes the failure to draw up a global strategy to ensure its eradication, calling for a national mechanism for the prevention of torture to be adopted in accordance with the Optional Protocol to the Convention against Torture which was ratified by Spain in April 2006.

The continuing use of incommunicado detention for up to 13 days in cases involving terrorism and organised crime, without allowing suspects to choose their own lawyers, is cited as another cause for concern. The Commission recommends that measures be adopted to suppress this regime that is liable to lead to ill-treatment, that suspects be allowed to appoint their lawyers of choice and that audiovisual means be systematically used during interrogations in police stations and other places of detention. The long period of preventive detention, up to four-years, is listed as another instance of non-compliance with human rights instruments, as is the secrecy of judicial proceedings when the defence in criminal trials is denied access to information needed for litigation. Judicial proceedings before the Audiencia Nacional dealing with offences of association or co-operation with terrorist groups “may restrict freedom of expression and association in an unjustified manner”.

Applicant wins damages on appeal to the European Court of Human Rights

On 8 January 2009, the European Court of Human Rights (ECtHR) reached a verdict in favour of Mikel Iribarren Pinillos against the Spanish state in relation to injuries he suffered in Pamplona (Navarre) when he was 19 years old during late-night disturbances in his hometown on 15 December 1991. The verdict granted him the payment of damages denied him by Spanish courts in relation to an incident in which a teargas canister was fired at body height at close range by the riot police, striking him on the head and leaving him in hospital in a serious conditions including a temporary coma and requiring surgery. The incident resulted in him being recognised as handicapped (with 37% invalidity) in 1995.

On 29 September 1995, the Provincial Court of Navarre found that security forces had been responsible of an offence of “blows and injuries”, but was unable to identify the perpetrator, so no criminal charges ensued. In August 1996, Iribarren Pinillos filed a claim for damages demanding the equivalent of 283,826.86 euros before the Interior Ministry, which agreed to pay him a lower sum, equivalent of 88,017.27 euros, in view of his participation in disturbances that created a situation of danger for him that he was responsible for. After submitting his observations and reiterating his request, the amount was raised to 101,037.71 euros, half of what he would have received if he had not been involved in the disturbances. The claim was later rejected after a report from the Consejo de Estado (Council of State, acting as the highest court to which the legal affairs of the state can be referred, among other competencies) on 11 September 1997 that argued that while the person who fired the canister had not been identified, it had been proven that Iribarren Pinillos had taken part in the disturbances. Therefore the damage caused was not the administration’s responsibility and regulations against the misuse of the legal system made it impossible to grant the applicant’s request.

An appeal was then filed before the Audiencia Nacional, which agreed to grant him 60,101.21 euros, leading to further appeals from both parties up to the Supreme Court. It ruled in favour of the state’s attorney on 31 January 2003 as the injuries had been caused by police officers but their conduct had not been illegal or disproportionate due to the demonstrators’ actions, including the erection of barricades. Hence, he was injured by chance in circumstances that he had contributed to. A further appeal was filed before the Constitutional Court on grounds including the right to fair trial within a reasonable time-period, the right to dignity, to physical and moral well-being and honour, the prohibition of torture and the right not to be discriminated against, which the court declared inadmissible in October 2003.

The applicant’s submission to the ECtHR interpreted his injuries as inhuman and degrading treatment affecting his private life, stressing that the criminal proceedings had established that they were caused by an “agent of the State who concealed his identity” before the judge instructing the case. He went into a coma and nearly died after a gas canister fired at him from a short distance, meaning that the injuries were not “unintentional and fortuitous”. He has had to support his losses resulting from a crime committed by a state agent on his own, after the state was cleared of any economic responsibility towards him. Moreover, neither the police authorities nor the officer responsible assisted the judicial authorities in clarifying the events and circumstances that led to his injuries.

The government replied that he contributed to the situation in which he was injured by partaking in an illegal and violent demonstration, and that police intervention was fully justified by the serious disturbance of public order. In ruling that there was a violation of articles 3 (prohibition of torture or inhuman and degrading treatment or punishment) and 8 (the right to private and family life) of the European Convention on Human Rights (ECHR), the court found that: “The use of the canister and the way in which it was used necessarily entailed a potential risk for the physical integrity or even the life of those present”. The ruling also agreed with the applicant that there was a violation of the principle of the legal proceedings reaching a conclusion within a “reasonable delay”. The damages the court ordered Spain to pay Iribarren Pinillos were 100,000 Euros for material damages, 40,000 euros for moral damages and 30,000 euros litigation costs.

Confession inadmissible in the Audiencia Nacional

On 21 October 2008, Arkaitz Agote Cillero was charged with attempting to cause terrorist criminal damage by placing an explosive device outside a justice of the peace’s courthouse in Zarautz (Guipúzcoa, Basque Country) on 2 November 2005. The public prosecutor requested an eight-year prison sentence but the defendant was acquitted in a ruling by the third section of the criminal court of the Audiencia Nacional (sentence 45/08). In the event, the device was defused by the Ertzaintza (the Basque autonomous police force) after it was warned of a suspicious package by a neighbour who noticed a warning note attached to it that read “Danger Bomb”.

The defendant had refused to testify in court and alleged that he was tortured. However, there were two statements by Agote Cillero rendered in custody of the Guardia Civil on 30 March 2007. Other statements were collected by the forensic doctor and a judge that he saw while in detention. The Guardia Civil officers stressed that the details in the statements “corresponded exactly with the facts...” and included information that was unknown to them. They said that all the procedures undertaken were proper, including checks on the prisoner by the forensic doctor and the presence of a lawyer. It is worth noting that Agote Cillero was not arrested in relation to this incident, but rather, for “membership of a terrorist group” due to “something” [unspecified] found during a search of his vehicle. The case had been shelved and was re-opened following his arrest.

It was proven that ETA was responsible for the attack, due to the device’s characteristics and a claim that appeared in the newspaper Gara and the prosecutor stressed that the defendant was on trial for membership of ETA. The defence lawyer argued that there was no evidence linking the man to the placing of the explosive device apart from his self-incriminating statements. A complaint of ill-treatment during detention had been filed and he had subsequently told a judge that he had confessed as a result of the threat of a bag being placed over his head; this was something which he alleged had already occurred “five times”, twice resulting in a “loss of consciousness”. Moreover, even if the statements were accepted in the trial, it was argued that they were insufficient because although they contain details that are correct, in the two years between the incident and the confessions, the Guardia Civil could well have learnt about them.

By comparing the defendants’ claims and the formal acts that were undertaken during his detention the ruling concluded that there was “no reason nor justification” for him to be held in a police cell from 3 p.m. on 28 March 2007 to 10 p.m. on 30 March [first in Intxaurrondo and later in Madrid]. There was “even less” reason for incommunicado detention as no procedure was carried out other than identification, which occurred immediately when he was first arrested. He alleged various acts of ill-treatment such as not allowing him to sit (he alleges that he was violently forced to get up if he did) and keeping his light on permanently. He claimed that when he declared “everything they wanted”, they “had prepared all the questions and answers”. Moreover, he had told the forensic doctor that he had been interrogated before there was any official act that mentioned interrogation. He also told her that he was “on the verge of suicide”.

This resulted in the court rejecting the statements as evidence “due to the agreement” of what the defended stated in terms of times and the phases of his arrest:

in view of the time spent in police offices without justification, the autonomy and willingness of the declaration provided cannot be presumed.

In dismissing the charges, the ruling also noted that while his voluntary statements were laden with detail, the confessions were vaguer and included details that were questionable; one statement, about when the device was placed, was in error. Moreover, there were no corroborating elements beyond the statements so the defendant would have been acquitted even if his “confession” had been accepted by the court.

Sources

European Court of Human Rights, 3rd section, Iribarren Pinillos vs. Spain (Request no. 36777/03), Strasbourg, 8 January 2009.
Available at: http://www.esculca.net/pdf/Asunto Iribarren Pinillos c.pdf

Audiencia Nacional, 3rd section, case 61/2007, sentence 45/08, Madrid 21.10.08. Available at:
http://www.nodo50.org/ala/spip/IMG/pdf_20081029_AgoteAuto.pdf

Informe sobre la tortura en el Estado Español, available from the Coordinadora para la prevención de la tortura website: http://www.prevenciontortura.org

Plan Nacional de Derechos Humanos (draft):
http://www.esculca.net/Borrador 3 - 191108.pdf

Letter from the Cpt to Zapatero complaining about their exclusion from the implementation of mechanisms for the eradication of torture envisaged in the
Optional Protocol to the Convention against Torture (in Galician):
http://www.esculca.net/pdf/Carta Aberta a Rodriguez Zapatero.pdf

Previous Statewatch coverage:

Spain: Report reveals catalogue of abuses, highlighting the "persistence of ill-treatment and torture", Statewatch News Online, August 2007: http://www.statewatch.org/news/2007/aug/spain-report.pdf

“Spain: UN Convention on Torture (Optional Protocol) ratified as claims of ill-treatment continue”, Statewatch bulletin vol. 16 no. 2 March-April 2006.