CASE OF BARBERÀ, MESSEGUÉ AND JABARDO v. SPAIN

Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Preliminary objection allowed (non-exhaustion of domestic remedies);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Just satisfaction reserved

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG The CARDINAL applicants are NORP nationals born in DATE , respectively . Mr ORG GPE Chamarro and Mr PERSON Mas are serving long sentences at FAC no . CARDINAL ( Lleida-CARDINAL ) and ORG respectively and have the benefits of the open system . Mr PERSON is at present living in PERSON in GPE .

At TIME on DATE , Mr PERSON , a DATE NORP businessman , was at his brother - in - law ’s house in GPE in the company of his brother - in - law and his own sister , PERSON , when CARDINAL men entered the flat under the pretext of being gas - board employees . They seized and held the maid , thus enabling other persons to enter .

The latter threatened PERSON with guns and shut him in a room , where they fixed an explosive device to his chest . They demanded a ransom of MONEY from him , to be handed over within DATE , and gave him instructions on how to pay it , saying that on payment he would be told how to remove the device safely . They then left the LOC and departed in waiting cars .

Mr Bultó returned home in his car . Shortly before TIME , the device exploded , killing him instantly .

ORG On DATE , GPE investigating judge no . CARDINAL commenced a preliminary investigation ( diligencias previas - no . CARDINAL ) into these events . On CARDINAL May , he placed the relevant documents in investigation file ( sumario ) no . CARDINAL but later relinquished jurisdiction on the ground that the crime was a terrorist act which came within the jurisdiction of FAC in GPE ( see paragraph CARDINAL below ) . The case was accordingly sent to central investigating judge no . CARDINAL of that court ( juez central de instrucción ) , who opened file no . CARDINAL .

ORG The police investigation led to the arrest on DATE of CARDINAL persons ( not including any of the applicants ) who were members of the E.PO.CA . ( NORP Peoples’ Army ) and one of whom had been recognised by witnesses . On DATE , they were charged with murder , with a terrorist act causing death and with possession of explosives .

On DATE , however , the Audiencia Nacional decided to apply the amnesty law ( no . CARDINAL of DATE ) to the accused owing to the political nature of their motives . They were at once released .

ORG On an appeal by the public prosecutor , ORG set this decision aside on DATE on the ground that by that stage of the proceedings it had not been established that the crime was politically motivated and not carried out for pecuniary gain . This judgment meant that investigation file no . CARDINAL was reopened . As the CARDINAL accused did not appear , however , the judge ordered them to be sought by the police , and in DATE he provisionally suspended the proceedings .

ORG In the course of their investigations into the killing of PERSON , the police arrested Mr PERSON , aged DATE , and CARDINAL other persons on DATE . They were placed in police custody and held incommunicado , in accordance with the anti - terrorist legislation then in force ( see paragraph CARDINAL below ) .

Unassisted by a lawyer , PERSON was questioned at the police station during his custody there and on DATE made a statement containing , in substance , the following :

Until DATE he had been a leading member of a NORP nationalist organisation , the " ORG " , and from DATE on had taken part in the creation and training of armed groups , with the object of fighting for the independence of the NORP nation .

In DATE , he had met CARDINAL young men including a certain " PERSON " , whom he identified as the applicant ORG , and in DATE had begun their theoretical and practical military training . In DATE , he had established another group of young men , CARDINAL of whom he identified as the applicant GPE .

Subsequently , several people , including " Thomas " , had purchased weapons in GPE ; they had brought them into GPE via GPE and hidden them in dumps known to them alone .

In DATE , CARDINAL groups had been established , CARDINAL of which was commanded by " PERSON " . The group members gave up all outside activities and were paid by the organisation . A network of flats and radio transmitters had been created later to allow contact between the groups .

In DATE , PERSON had been informed that an explosive device had been produced , which could be attached to a person ’s body and subsequently defused on payment of an agreed ransom . The mechanical part of this device could have been designed by " Thomas " ( ORG ) and another activist , and the electronic part by PERSON and another person . " PERSON " and someone else had later shown the device to PERSON .

In DATE , they had revealed to him that the first victim chosen was Mr PERSON .

DATE after the killing , he had met the commando leaders and had learned that CARDINAL people had taken part in the operation and that Mr GPE and Mr Messegué had attached the device to the victim ’s chest .

ORG When PERSON was brought before GPE investigating judge no . CARDINAL , in the presence and with the assistance of counsel , he amended his statement . In particular , he said that the bomb " might have " been made by the persons stated , but that he did not know the names of those who had carried out the attack on PERSON .

ORG These statements were sent to central investigating judge no . CARDINAL in GPE , who reopened file no . CARDINAL on DATE . On DATE he charged Mr GPE with murder and with possession of arms and explosives , and ordered him to be held in custody on remand .

In a further decision on DATE he charged CARDINAL others , including PERSON and PERSON , with murder , criminal damage and uttering forged documents , and issued a warrant for their arrest . As none of the six could be found , the proceedings continued solely against the co - defendants in custody .

ORG During the investigation and again at the hearing , Mr PERSON retracted his statement to the investigating judge as far as the identification of GPE and ORG was concerned .

On DATE , the first section of ORG the Audiencia Nacional sentenced him to DATE and CARDINAL months’ imprisonment for assisting armed gangs . It set aside the original charges , however , noting among other things that he had expressed disapproval when at DATE he had been told of the proposed operation against PERSON ; that the preparations had occurred without his knowledge ; and that he had only learned of the victim ’s death through press reports . It also ordered his immediate release because the period of the sentence had already been spent in custody on remand .

ORG Following an appeal on points of law by PERSON son , acting both as a " private prosecutor " and as a party claiming civil damages , ORG quashed the judgment of the Audiencia Nacional on DATE . On DATE , it sentenced Mr GPE to DATE imprisonment for aiding and abetting a murder and ordered him to pay MONEY in damages to the victim ’s heirs . It held that the influence he exerted on those who committed the crime was sufficiently great to amount to aiding and abetting and went far beyond merely assisting armed gangs ; admittedly , he had made it clear that he was opposed to the crime , but he had done nothing to prevent it .

A warrant was consequently issued - on DATE , according to the applicants - for Mr GPE arrest . Mr GPE has not so far been found by the police and has therefore not yet served his sentence .

ORG The CARDINAL applicants were arrested with other persons on DATE and charged with belonging to the terrorist organisation DATE . Among items found at their homes were radio transmitters and receivers , a variety of implements , electronic equipment , publications of left - wing nationalist parties , files on leading politicians and businessmen , and books on topography , electronics and the chemistry of explosives .

Section CARDINAL of Law no . CARDINAL of DATE on the suppression of terrorism , as renewed by ORG no . CARDINAL of DATE , was applied to their case ( see paragraph CARDINAL below ) . This authorised the police to hold suspects in custody for longer than the normal period of TIME , with leave from the investigating judge . The applicants were moreover held incommunicado and not allowed to have the assistance of a lawyer .

While in custody they signed a statement in which they admitted having taken part in PERSON murder either as principals or as accessories ; their account differed from Mr GPE , however . Furthermore , the police discovered stocks of arms and explosives at places indicated by PERSON and PERSON .

ORG On DATE , the persons held in custody appeared before GPE investigating judge no . CARDINAL , who questioned them - without any defence lawyer being present in the case of PERSON and PERSON . They retracted their confessions to the police and CARDINAL of them - Jabardo and ORG - complained of being subjected to physical and psychological torture while in police custody .

By an order ( auto ) of DATE the judge directed that they should be held in custody on remand , and they were transferred to FAC .

ORG On DATE , the resulting documents were sent to central investigating judge no . CARDINAL for inclusion in file no . CARDINAL .

On DATE , the latter judge charged the applicants and CARDINAL other persons with murder and assisting armed gangs . He then sent letters rogatory to GPE for further inquiries to be made . GPE investigating judge no . CARDINAL served the charges on the applicants and examined them on DATE ; they confirmed the statements they had made to investigating judge no . CARDINAL and again alleged that their confessions had been obtained by means of torture .

They were not , however , confronted with the prosecution witnesses or PERSON , who was then at liberty .

PERSON instructed an advocate and an attorney in GPE on DATE , but the central investigating judge in GPE did not record these appointments until DATE . Mr Messegué and Mr PERSON did not instruct lawyers until DATE ; the investigation had been completed on DATE .

ORG The case was then committed for trial to the first section of ORG the Audiencia Nacional .

By an order of CARDINAL DATE , the court instructed the public prosecutor and the private prosecutor to make their interim submissions . They argued that the facts amounted to murder , possession of arms and explosives and forging identity documents ; as evidence they offered the examination of the defendants , the hearing of eye - witnesses and the production of the entire case - file ; no mention was made of PERSON .

The file was sent to the attorney acting for Mr PERSON on DATE and to the ones acting for PERSON and PERSON on DATE . Each of the defendants conducted his defence separately with counsel of his own choosing . All the defendants declared their innocence and offered to produce similar evidence , including , in GPE and ORG ’s case , the statement made by ORG retracting the one he had made to the police implicating PERSON and PERSON in the murder .

Mr ORG had been transferred to GPE but he and his counsel managed to get him returned to GPE in order to prepare his defence .

ORG By an order made on DATE , the court - on this occasion composed of PERSON ( the presiding judge ) , PERSON and PERSON - admitted the evidence offered and set the case down for trial on DATE . It also ordered that the accused should be brought to GPE and appointed Mr PERSON and PERSON of the third section as additional judges to bring the number in the first section to CARDINAL in view of the heavy sentences being sought ( Article CARDINAL para . CARDINAL of LAW ) .

On DATE , defence counsel ( all of whom were members of ORG ) applied for the trial to take place in GPE on account of the needs of the defence and witnesses’ travel difficulties . Subsequently , a NORP senator wrote to the court requesting it to at least postpone the transfer to GPE until after DATE . On DATE , the Audiencia Nacional , presided over by PERSON , who was sitting with PERSON and Mr PERSON , refused the first application and confirmed that the hearing would be held in GPE on DATE .

ORG On DATE before the trial , counsel for the defendants met the presiding judge of the first section of ORG ( Mr de la Concha ) , in order to prepare for the hearing and discuss the possibility of an adjournment , as the applicants were still in prison in GPE . The presiding judge assured them that the GPE transfer was imminent and that the trial could therefore go ahead .

The applicants stated that they left GPE on TIME of DATE and arrived in GPE at TIME the following morning , when the hearing was due to commence at CARDINAL ; they said that they were in very poor shape after travelling QUANTITY in a prison van . According to the Government , the journey took TIME at most .

That same morning of CARDINAL DATE , the presiding judge had to leave GPE suddenly as his brother - in - law had been taken ill . As senior judge of the ORG , PERSON took his place . In accordance with the legislation in force , so the ORG asserted , the parties were not warned either of this substitution or of the replacement of Mr PERSON - who no longer belonged to the first section - by Mr FAC .

ORG The trial was held on DATE in a high - security courtroom ; in particular , the defendants appeared in a glass cage and were kept in handcuffs for most of the time . The record makes no mention of any protest by them , except as regards certain exhibits which were not produced in court .

The court agreed to admit in evidence a number of documents submitted by the defence . When examined by the private prosecutor in regard to matters in their statements to the police , the accused again denied any participation in the murder and again complained of being subjected to torture while they were in custody .

ORG The public prosecutor offered for examination the CARDINAL witnesses who had been present at the time of the crime : the sister and brother - in - law of PERSON , and their housemaid . The sister and the maid were very old and could not come to GPE but the prosecutor asked that their statements to the police on DATE after the crime should be taken into account . PERSON brother - in - law gave evidence in court but did not recognise any of the applicants . The only documentary evidence produced by the public prosecutor was a copy of the file on the investigation .

ORG For its part , the defence , with the court ’s leave , called CARDINAL witnesses ; some of them , who were arrested at the same time as the defendants , alleged that they too had been subjected to brutality while in police custody .

All the parties agreed to treat the documentary evidence as if it had been produced ( por reproducida - see paragraph CARDINAL below ) .

ORG The public prosecutor and the private prosecutor then confirmed their interim submissions ; counsel for the defendants , on the other hand , amended theirs and submitted that the amnesty law should be applied ( see paragraph CARDINAL above ) .

The hearing was adjourned until TIME and resumed with addresses by the CARDINAL parties . The presiding judge finally asked the defendants if they had anything to add , and they answered in the negative . The hearing ended in the evening .

ORG On DATE , the first section of ORG the Audiencia Nacional sentenced Mr GPE and Mr Messegué to CARDINAL years’ imprisonment for murdering PERSON ; it also sentenced Mr GPE to DATE and DATE imprisonment for unlawful possession of arms and to CARDINAL months’ imprisonment and a fine of MONEY for uttering forged documents , and Mr Messegué to DATE and DATE imprisonment for possessing explosives . Mr PERSON was sentenced to DATE and DATE imprisonment for aiding and abetting a murder .

The court held it to have been proved that Mr GPE and Mr Messegué had directly participated in fixing the device to the victim ’s body and switching on the electric mechanism , after which they had given Mr PERSON instructions for the payment of a ransom , which was the condition on which he would be able to remove the device safely . The device had subsequently exploded for reasons that had never been properly established . Mr PERSON had assisted the operation by gathering information about public figures in GPE , including PERSON .

In the same judgment the court refused to apply the amnesty law of DATE to the applicants . Even if they had been acting from a political motive , that motive was the independence ( and not merely the autonomy ) of the NORP nation and so did not fall within the scope of the amnesty .

ORG The applicants appealed on points of law , relying on LAW ( right of all NORP to equality before the law ) , CARDINAL ( right to liberty and security of person ) and CARDINAL ( right to effective judicial protection ) of the LAW . They described the circumstances of their arrest and custody and pointed out that when they were questioned by the police they did not have the assistance of lawyers and had not been informed of their rights ; they had made confessions only because use had been made of coercion , threats and ill - treatment ( see paragraphs CARDINAL above ) .

They also claimed that there was no evidence to rebut the presumption that they were innocent of PERSON murder , as the physical violence to which they had been subjected rendered their confessions invalid . Moreover , there was no connection between the facts found by the Audiencia Nacional and the evidence adduced before it , and its judgment did not explain how it had arrived at its decision .

The applicants also criticised the Audiencia Nacional for not having determined all the issues raised in the defence submissions ( Article CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) : it had ignored their allegations that their statements to the police were invalid and had given no indication of the evidential value it attached to those statements , having regard to the material produced during the trial . Mr ORG submitted , moreover , that he was implicated solely by confessions extracted by force from Mr GPE , who had later retracted them before the judge ; the Audiencia Nacional had again not expressed an opinion as to their validity .

Furthermore , the Audiencia Nacional had made an error of fact in assessing the evidence ( Article CARDINAL para . CARDINAL of LAW - see paragraph CARDINAL below ) , because there was no conclusive evidence to refute their protestations of innocence before the judge . Referring to Article CARDINAL para . CARDINAL of the LAW ( see paragraph CARDINAL below ) , which enshrines the principle of the presumption of innocence , and to ORG case - law on the subject , the applicants asserted that not only had the evidence been wrongly evaluated but no such evidence in fact existed .

They further submitted that ORG had not indicated its reasons for holding that the facts had been established , as required by ORG precedents , even though the main defence submission had been that there was no evidence . There could only be one explanation for this , namely that the court had allowed itself to be influenced by the GPE alleged confessions to the police , which had been obtained in clear breach of the fundamental rights guaranteed in LAW and CARDINAL of the LAW .

Mr PERSON also criticised the Audiencia Nacional for not having sought during the hearing to inquire further into the facts . He said that the only prosecution witness who had given evidence in court had not recognised the defendants and that important evidence was lacking , such as identification and the confrontation of witnesses and accused or a reconstruction of the events . Lastly , he pointed to a discrepancy between the judgment of DATE convicting PERSON ( see paragraph CARDINAL above ) and the judgment given in the instant case on DATE ( see paragraph CARDINAL above ) ; in his submission , this discrepancy showed that he , PERSON , could not have taken part directly in the attack on PERSON .

ORG On DATE , ORG dismissed the appeals of Mr GPE and Mr Messegué .

As to the validity of the confessions obtained by the police , including Mr GPE , it noted that the alleged defects related solely to the findings of fact and accordingly did not give rise to the procedural irregularity complained of , which related only to points of law .

The court said the following about the presumption of innocence ( translated from the NORP translation provided by the Government ) :

" The evidence offered by the public prosecutor , the private prosecutor and the defence includes , as written evidence , the complete file on the investigation , containing : ( a ) the statement made to the judge by PERSON , assisted by his lawyer ( doc . no . CARDINAL in the file ) , in which he confirmed the following facts from his first statement to the police : the defendants PERSON and PERSON were members of an armed group designed to be the nucleus of a revolutionary army to free the NORP nation ; they were very closely associated with PERSON , particularly Mr Messegué ; they had been thoroughly trained in urban guerrilla tactics ; they lived ‘ freed from all external ORG , being paid by the organisation to devote all their energies to its work , in accommodation provided by the organisation ; they communicated with each other by means of transmitters and used false identity documents and assumed names ; PERSON was in charge of CARDINAL of the direct - action groups which , together with others , formed an organised unit or brigade ; both men had important positions in the organisation and had received training such that they ‘ might have’ constructed the explosive device ( Mr GPE the electronic component and Mr ORG the mechanical component ) used for the ‘ business operations and in particular the CARDINAL of which Mr PERSON was the victim - Mr GPE did not know the identity of or the methods used by the persons forming the groups which took part in that operation’ ; ( b ) finding of fact in the Audiencia Nacional ’s judgment of DATE in the same case ( doc . no . CARDINAL in the file ) , confirmed unchanged in ORG judgment of DATE convicting Mr PERSON : ‘ At an unspecified date at DATE ( he is referring to DATE ) CARDINAL of the young men whom he saw most frequently and whom the defendant ( Mr PERSON ) knew to be heads of armed groups told him they considered that the time had come to go into action and that they were contemplating operations to finance the members of the groups . They told him that they had adjustable explosive devices which could be fixed to the skin of selected victims so that the latter would be obliged to pay the money asked for in order to avoid the risk of an explosion entailed by removing a device without the instructions and equipment in the possession of those who had put it in place . At DATE , CARDINAL of these group leaders told him that they were thinking of a businessman , Mr PERSON , on whom to use this device for the first time’ ; ( c ) the statement made to the judge by Mr GPE Javier Barberà GPE , assisted by his lawyer ( doc . no . CARDINAL ) : he admitted being a member of ORG , working together with PERSON , being in possession of arms and knowing of the existence of stocks of arms ; ( d ) the statement made to the judge by PERSON , assisted by his lawyer ( doc . no . CARDINAL ) : he belonged to the armed organisation , had been trained in urban guerrilla tactics by PERSON and knew of the existence of a stock of explosives ; ( e ) the official report on a search of the flat at no . CARDINAL FAC , GPE ( doc . no . CARDINAL ) , and from the file on the investigation a statement by PERSON ( doc . no . CARDINAL ) to the effect that the defendant PERSON lived in the flat with other activists and that there were found there ( inter alia ) a transmitter , electronic equipment , lathes , tools and files containing press cuttings and information about a number of prominent people , and books on topography , the chemistry of explosives , and electronics ; ( f ) the official report on a search of the flat at no . CARDINAL FAC , GPE ( doc . no . CARDINAL ) , occupied by Mr PERSON Mas and PERSON ( statement in doc . no . CARDINAL ) and where a transmitter and receiver , medicines , wigs and stiff paper of the type used for national identity cards and for driving licences were seized ; ( g ) the official report on the discovery of an arms dump and CARDINAL radio transmitters at CARDINAL places indicated by the defendant GPE ( doc . no . CARDINAL ) ; ( h ) the official report on the discovery of an explosives dump indicated by PERSON and the destruction of the explosives on the spot ( docs . nos . CARDINAL and CARDINAL ) . The mere existence of this evidence , irrespective of its implications and the way in which it is assessed , is sufficient to rebut the presumption of innocence relied on by the defendants GPE and PERSON , and we therefore reject grounds CARDINAL and CARDINAL respectively of their appeals ; the facts established in paragraph CARDINAL of the recital finding that they were directly and immediately involved in the homicidal operation must consequently be confirmed in toto . The description of the facts as murder under Article CARDINAL para . CARDINAL of LAW with an aggravating circumstance under LAW para . CARDINAL , which was allegedly incorrectly applied according to GPE ’s sixth ground of appeal and ORG ’s fifth ground of appeal , was therefore correct and their appeals under section CARDINAL(CARDINAL ) of LAW must therefore be dismissed . "

On the other hand , ORG quashed the Audiencia Nacional ’s judgment in respect of Mr Jabardo , holding that the established facts amounted not to the crime of aiding and abetting murder but to the lesser offence of assisting armed gangs . It accordingly delivered another judgment on DATE acquitting him on the first charge but sentencing him to CARDINAL years’ imprisonment on the second charge . Lastly , it confirmed that the applicants were not covered by the amnesty law and it ordered an inquiry into their allegations of ill - treatment .

This inquiry was begun in DATE by investigating judge no . CARDINAL in GPE and led in DATE to a discharge order being made by FAC .

ORG The CARDINAL convicted men appealed to ORG alleging a violation of Articles CARDINAL para . CARDINAL ( right of everyone arrested to be informed of the reasons for his arrest and to be assisted by a lawyer ) , CARDINAL para . CARDINAL ( right to a fair trial and to be presumed innocent ) and CARDINAL ( right of all NORP to equality before the law ) of LAW ( see paragraphs CARDINAL above and CARDINAL below ) .

As regards the factors taken into account by ORG , they made the following submissions .

Mr GPE statement could be regarded only as witness evidence , yet it had not been offered as such nor had it been confirmed at the hearing . If CARDINAL accepted that it had been produced by means of the phrase " por reproducida " , the unacceptable consequence followed that all the actions and confessions contained in the police report would likewise have to be admitted as evidence , since they too appeared in the file on the investigation . In any case , the material statement did not provide any indication that the defendants had had any involvement in the murder .

ORG judgment of CARDINAL DATE merely stated , in its second recital , that Mr Martínez Vendrell did not know the actual course of the relevant events .

Mr GPE ’s statement to the investigating judge should not have been admitted in evidence , since he had made it without counsel ’s assistance ; furthermore , he merely denied that he had participated in the crime .

Similarly , Mr ORG had declared to the investigating judge that he was innocent .

The items found at the homes of Mr GPE and Mr Messegué and the statements by their female companions had no connection with the murder . The items , moreover , had never amounted to real evidence as it did not appear from the file that they had been given to the judge or assessed by the court - CARDINAL of the defence counsel had indeed protested at this during the trial ; as to the documents , these had never been appended to the police report nor placed elsewhere in the file on the investigation , so the court could not take them into account .

The discovery of arms and explosives at the places indicated by PERSON and PERSON was relevant to the offences of unlawful possession of weapons and explosives but not to the murder .

In sum , none of the factors listed by ORG could rebut the presumption of innocence in respect of the main charge , the attack on PERSON .

For the rest , the applicants repeated in substance the submissions they had made before ORG .

ORG On DATE , ORG declared the appeal ( recurso de amparo ) inadmissible as being manifestly ill - founded . As regards the presumption of innocence it gave the following reasons for its order ( auto ) :

" As the assessment of the evidence lies within the exclusive jurisdiction of the judges and courts , ORG can not find a violation of this provision unless there has been a failure to produce a minimum of evidence against the accused .

In the instant case , however , this minimum of evidence was produced , namely in the statements made with the assistance of a lawyer to the investigating judge , the official reports on the searches made and on the real evidence discovered and in the facts as established in another judgment . ORG can not therefore review the criminal courts’ assessment of the evidence . "

ORG In DATE , the applicants were transferred from ORG in GPE to FAC ( Lleida-CARDINAL ) . In DATE , the Audiencia Nacional granted Mr PERSON parole . Since DATE , Mr GPE and Mr Messegué have been held in an open prison .

ORG The police rearrested CARDINAL of the persons originally prosecuted ( see paragraph CARDINAL above ) , Mr S and PERSON , and the investigation was resumed on DATE .

PERSON was sentenced to DATE imprisonment as being responsible for PERSON murder together with the applicants GPE and ORG . He appealed on points of law to ORG , which dismissed his appeal on DATE , holding that the evidence produced was sufficient to rebut the presumption of innocence . His subsequent appeal to ORG was declared inadmissible on DATE .

As for PERSON , she was sentenced to DATE imprisonment for assisting armed gangs .

ORG By LAW ,

" CARDINAL . Everyone has the right to effective protection by the judges and courts in the exercise of his legitimate rights and interests , and in no case may the right to a defence be curtailed .

Everyone , further , has the right to be heard by the tribunal established by law , the right to a defence and to the assistance of a lawyer , the right to be informed of any charges against him , the right to a public trial without undue delay and attended by all safeguards , the right to make use of evidence relevant to his defence , the right not to make statements against himself and not to confess himself guilty , and the right to be presumed innocent .

ORG In view of ORG case - law in this area , ORG has extended the scope of proceedings in appeals on points of law . It has held that the presumption of innocence can be relied upon before it in respect of an infringement of the law resulting from an error made by the trial court when assessing the evidence ( see paragraph CARDINAL below ) , or on some other ground .

According to a judgment of CARDINAL DATE , ORG review of the evidence is directed only to the question whether or not evidence was produced and taken and not to the criminal court ’s final , unappealable assessment of that evidence .

ORG Article CARDINAL para . CARDINAL of the LAW provides for an appeal ( recurso de amparo ) whereby the protection of the rights laid down in LAW to CARDINAL may be secured .

ORG According to the preamble to LAW , the file on the judicial investigation is " the corner - stone of the hearing and the judgment " . It is not a substitute for the hearing but a preparation for it .

Since the reform of DATE ( Law no . CARDINAL ) , the adversarial nature of criminal proceedings applies to the investigation stage ; this enables the accused , assisted by his advocate , to intervene in respect of steps concerning him ( Articles CARDINAL and CARDINAL ) . In order to exercise this right , the accused must appoint an advocate ( abogado ) and an attorney ( procurador ) .

The investigating judge has to build up his file under the direct supervision of the appropriate public prosecutor ’s office ( Article CARDINAL ) . He includes the evidence put forward by the public prosecutor and the other parties if he considers it relevant . He can also order evidence to be produced of his own motion , but in that case he adds to the file only such evidence as proves to be of value ( Article CARDINAL ) .

Once the investigation is concluded , the judge forwards the documents to the relevant court ( Article CARDINAL para . CARDINAL ) , which takes the final decision to close the investigation after it has heard the public prosecutor and the private prosecutor ( Article CARDINAL ) .

ORG Before the hearing , the public prosecutor and the private prosecutor make their interim submissions - in writing and in numbered paragraphs - on the punishable offences disclosed by the case - file , on their classification in criminal law , on the circumstances that may affect the accused ’s responsibility and on the penalty which he may incur . The defence , in its turn , presents its view of the classification in law of the facts disclosed by the case - file ( which is placed at its disposal ) and must reply by indicating , likewise in numbered paragraphs corresponding to the prosecution ’s submissions , whether it accepts or rejects each of them ; in the latter case , it makes its own alternative submissions ( Articles CARDINAL , CARDINAL and CARDINAL ) . The prosecution and the defence must , when making their interim submissions , indicate the evidence they propose to adduce ( Articles CARDINAL and CARDINAL ) , and this evidence is scrutinised by the reporting judge and admitted or rejected by the court ( Articles CARDINAL and CARDINAL ) .

The hearing takes place in public , failing which it will be null and void ( LAW ) . It can not begin or be continued unless the accused is present . For this purpose , the law allows the accused to be transferred , if necessary , to the town in which the hearing is to be held .

Evidence is taken in the order in which the parties have offered it . The court may also take such evidence as it considers necessary for the discovery of the truth ( Article CARDINAL para . CARDINAL ) . Furthermore , " at the request of any of the parties , documents relating to evidence which , for reasons beyond the parties’ control , can not be produced at the hearing may be read out " ( LAW ) . Where all or part of the file on the judicial investigation is adduced in evidence , there is an established practice that it will be regarded as having been produced ( por reproducida ) without having been read out if all those concerned so agree .

Immediately after the evidence has been taken , the parties may make written amendments to their interim submissions or else make them final . The presiding judge calls the representatives of the public prosecutor and of the private prosecutor ( Article CARDINAL ) . In their pleadings , these representatives must set out the facts they consider proved at the hearing , their classification in criminal law , the part played in them by the accused and the civil liability flowing from them ( Article CARDINAL ) . The presiding judge then immediately calls the defence ; its pleadings must be consistent with its final written submissions ( Articles CARDINAL and CARDINAL ) . Lastly , the presiding judge gives the accused the opportunity of addressing the court in case he wishes to add anything in his defence ( LAW . After that , the presiding judge declares the hearing closed .

ORG The judges deliberate immediately after the hearing , or at the latest on DATE ( Article CARDINAL ) , and a reporting judge ( magistrado ponente ) is designated for the purposes , inter alia , of informing the court , examining the evidence and preparing a draft judgment ( Articles CARDINAL - CARDINAL of the Code of Criminal Procedure ) . The final decision is written and signed within DATE ( Article CARDINAL ) . In drawing it up , the court has to assess in all conscience the evidence adduced during the hearing , the submissions of the prosecution and the defence , and the statements of the defendants ( Article CARDINAL ) .

ORG An ordinary appeal does not lie against judgments of the Audiencia Nacional ; only the special remedy of an appeal on points of law or procedure is available .

By Article CARDINAL , the law is deemed to have been violated

( CARDINAL ) where , having regard to the facts declared proved in the judgment appealed against , there has been an infringement of a substantive provision of criminal law or any other legal rule of the same kind which has to be complied with when the criminal law is being applied ; or

( CARDINAL ) where an error of fact has been made in assessing the evidence and this appears clearly from authentic documents not contradicted by other evidence .

It has been held by ORG that in the second of these CARDINAL eventualities the principle of the presumption of innocence can be prayed in aid ( see paragraph CARDINAL above ) .

ORG - compliance with procedural requirements includes cases in which :

( a ) the judgment appealed against does not clearly state the facts deemed to have been established or discloses a manifest discrepancy between them or else mentions as proved facts " concepts " which , by their legal nature , prejudge the decision to be taken ( Article CARDINAL para . CARDINAL ) ;

( b ) the judgment does not dispose of all the issues raised by the prosecution and the defence ( Article CARDINAL para . CARDINAL ) ; and

( c ) one of the judges who participated in the judgment was challenged but without success , although the challenge was made within time , in the proper manner and for a legally valid reason ( Article CARDINAL para . CARDINAL ) .

ORG The Audiencia Nacional and ORG both comprise several divisions with specific jurisdictions ( civil , criminal , administrative ) , each of which is in turn divided into CARDINAL - judge sections if the number of judges allows . Members of each division are always available to replace fellow members , and the president of a division can be replaced by the presiding judge of a section or by the senior judge .

Section CARDINAL of LAW ( PERSON orgánica del Poder Judicial ) provides that where the judges designated to complete a section do not come from ORG , the parties must be informed of their identity CARDINAL before the public hearing begins .

By the same section of the LAW , no challenge may normally be made after the hearing has begun . Under LAW , however , a challenge may be made at any stage of the proceedings but in no circumstances after the beginning of the oral stage unless on the ground of subsequent events . A judge may be challenged on the following legal grounds among others : that he is related by blood or marriage to one of the parties ; that one of the parties has either lodged a complaint or brought a prosecution against him or once did so in the past ; that the judge has himself lodged a complaint or brought a private prosecution against the person making the challenge , or once did so in the past ; that he is involved in litigation with the person making the challenge ; that he is or has been the guardian or ward of one of the parties or has had custody of him ; that he has taken part in the proceedings as advocate , legal adviser , member of the public prosecutor ’s office , expert , witness or investigating judge ; that he has a direct or indirect interest in the proceedings ; that he is a close friend or else obviously hostile ( LAW ) .

ORG The Audiencia Nacional was given jurisdiction in terrorist cases on DATE ( Royal Legislative Decree no . CARDINAL ) . The court , which was created by legislative decree on DATE ( no . CARDINAL ) , sits at GPE and its criminal jurisdiction also extends to organised crime , business crime and offences whose effects reach beyond the territory of a single province . The judicial investigation of such offences is carried out by specialist judges ( jueces centrales de instrucción ) .

ORG At the time the applicants and Mr PERSON were arrested , Law no . CARDINAL of DATE provided for a range of measures not permitted by the ordinary law in respect of terrorist acts committed by armed groups . This PERSON , which was originally intended to be in force for DATE , was renewed by ORG no . CARDINAL of DATE .

Section CARDINAL of the PERSON makes provision for holding people in police custody for DATE ( instead of TIME ) . Furthermore , the judicial authority which has ordered detention can also order that the person concerned be held incommunicado for the length of time needed to complete the judicial investigation , without prejudice to the rights of the defence ( same section ) . There are also special provisions on searches and the monitoring of correspondence , including communications by telegraph and telephone ( section CARDINAL ) .


Preliminary objection rejected (estoppel);Violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 6-1;No violation of Art. 25-1;Not necessary to examine Art. 28-1-a;Not necessary to examine Art. 53;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;N. Valticos;R. Pekkanen

The applicant , PERSON Şükran Aydın , is a NORP citizen of NORP origin . She was born in DATE . At the time of the events in issue she was DATE and living with her parents in the village of ORG , which is about QUANTITY kilometres from the town of GPE where the district gendarmerie headquarters are located . The applicant had never travelled outside her village before the events which led to her application to the Commission .

Since DATE , serious disturbances have raged in the south - east of GPE between the security forces and the members of the ORG ( Workers’ ORG ) . This confrontation has so far , according to the ORG , claimed the lives of CARDINAL civilians and CARDINAL members of the security forces .

At the time of the ORG ’s consideration of the case , CARDINAL of the CARDINAL provinces of south - eastern GPE had since DATE been subjected to emergency rule .

The facts in the case are disputed .

According to the applicant , a group of people comprising village guards and a gendarme arrived in her village on DATE . Although the applicant put the time of their arrival at TIME , the Commission , relying on the recollection of the applicant ’s father and sister - in - law , found that it was more likely that this occurred early in TIME of CARDINAL June at TIME

CARDINAL members of the group came to her GPE home and questioned her family about recent visits to the house by ORG members ( see paragraph CARDINAL above ) . Her family were threatened and subjected to insults . They were then taken to a village square where they were joined by other villagers who had also been forcibly taken from their homes .

The applicant , her father , PERSON , and her sister - in - law , ORG , were singled out from the rest of the villagers , blindfolded and driven away to PERSON gendarmerie headquarters .

The Government have disputed the applicant ’s claim that she and CARDINAL members of her family were detained in the circumstances described above . In his oral evidence to the Commission delegates who heard evidence from witnesses in GPE from CARDINAL to DATE ( see paragraph CARDINAL below ) , Mr PERSON , the commander of PERSON gendarmerie headquarters in DATE , stated that no operations had been conducted in or immediately around the village on DATE in question and no incidents had been recorded . Furthermore , in support of their challenge to the applicant ’s account of the events the Government drew attention to the inconsistencies in the evidence concerning the time of the incident and the number of village guards involved as well as to the fact that the applicant and her family failed to recognise any of the village guards although they all would have come from neighbouring villages .

The applicant alleges that , on arrival at the gendarmerie headquarters , she was separated from her father and her sister - in - law . At some stage she was taken upstairs to a room which she later referred to as the “ torture room ” . There she was stripped of her clothes , put into a car tyre and spun round and round . She was beaten and sprayed with cold water from high - pressure jets . At a later stage she was taken clothed but blindfolded to an interrogation room . With the door of the room locked , an individual in military clothing forcibly removed her clothes , laid her on her back and raped her . By the time he had finished she was in severe pain and covered in blood . She was ordered to get dressed and subsequently taken to another room . According to the applicant , she was later brought back to the room where she had been raped . She was beaten for TIME by several persons who warned her not to report on what they had done to her .

The Government have challenged the credibility of the applicant ’s account of the events . They pointed out that there was no indication in the custody register kept at PERSON gendarmerie headquarters that anyone had been detained on DATE . Had the applicant and the members of her family been taken into custody on that date the responsible duty officer would have followed the proper procedure and entered the details in the custody register . The station commander and the custody officer on duty at the time had been heard by the Commission delegates as witnesses and both had confirmed that no one had been taken into custody at that time . Furthermore , interrogation of terrorist suspects never took place at the PERSON headquarters but at the provincial headquarters in GPE . The Government also found it significant that the applicant failed to recognise photographs of the LOC when shown to her . Furthermore , the Government highlighted several inconsistencies in the way in which the applicant reported on the details of the alleged rape and assault to the public prosecutor and to ORG ( see paragraph CARDINAL below ) .

According to the applicant , she , her father and her sister - in - law were taken away from the gendarmerie headquarters on or DATE . They were driven by members of the security forces to the mountains where they were questioned about the location of ORG shelters . They were subsequently released separately . The applicant made her own way back to her village .

The Government argued that the applicant ’s account of her release also undermined the credibility of her allegations . They contended that it would have been extremely naïve on the part of the security forces to take the applicant and the members of her family to a location within TIME of NORP after DATE of detention to ask about the whereabouts of terrorists .

On DATE the applicant together with her father and her sister - in - law went to the office of the public prosecutor , Mr FAC , in PERSON to lodge complaints about the treatment which they all alleged they had suffered while in detention . The public prosecutor took statements from each of them . The applicant reported that she had been tortured by being beaten and raped . Her father and sister - in - law both alleged that they had been tortured . According to the applicant , she confirmed her account of what happened to her in a statement given to ORG on DATE , which was submitted , undated , to the ORG along with her application .

All CARDINAL were sent the same day to Dr PERSON at ORG . The public prosecutor had requested PERSON to establish the blows and marks of physical violence , if any , in respect of PERSON and PERSON . In respect of the applicant , he requested that she be examined to establish whether she was a virgin and the presence of any marks of physical violence or injury .

In his report on the applicant dated DATE , PERSON , who had not previously dealt with any rape cases , stated that the applicant ’s hymen was torn and that there was widespread bruising around the insides of her thighs . He could not date when the hymen had been torn since he was not qualified in this field ; nor could he express any view on the reason for the bruising . In separate reports he noted that there were wounds on the bodies of the applicant ’s father and sister - in - law .

On DATE the public prosecutor sent the applicant to be examined at ORG with a request to establish whether she had lost her virginity and , if so , since when . She was examined by Dr PERSON , a gynaecologist . According to the doctor ’s report , dated the same day , defloration had occurred DATE prior to her examination . No swab was taken and neither the applicant ’s account of what had happened to her nor whether the results of the examination were consistent with that account were recorded in his report . Dr ORG did not comment on the bruising on her inner thighs on account of the fact that he was a specialist in obstetrics and gynaecology . He did not frequently deal with rape victims .

On DATE the public prosecutor took a further statement from the applicant who by that stage was married . On DATE he referred the applicant to ORG requesting that a medical examination be carried out to establish whether the applicant had lost her virginity and , if so , since when . The medical report dated CARDINAL DATE confirmed Dr ORG ’s earlier findings ( see paragraph CARDINAL above ) that the hymen had been torn but that after DATE defloration could not be accurately dated .

On DATE the public prosecutor wrote to PERSON gendarmerie headquarters enquiring as to whether the applicant , her father and her sister - in - law had been held in custody there and , if so , as to the dates and duration of the detention and the names of those who carried out the interrogations . By letter dated DATE , the commander of the gendarmerie headquarters , Mr PERSON , replied that they had not been taken into custody . On DATE , he supplied the public prosecutor with a copy of the entries for DATE . There were CARDINAL entries for DATE .

On DATE the public prosecutor wrote to PERSON gendarmerie headquarters requesting that the custody register for DATE be sent to him for inspection . The register contained no entries for DATE in question .

NORP The public prosecutor sent the applicant ’s file to ORG in GPE . By letter dated DATE , the chief coroner requested that the applicant attend for an examination .

NORP The public prosecutor wrote to the chief of security in PERSON on DATE and CARDINAL DATE requesting that the applicant be brought to the office of the Attorney - General . In a follow - up letter of CARDINAL DATE the public prosecutor referred to the fact that he had received no reply to his earlier letters . In a further letter dated CARDINAL DATE , the public prosecutor informed the chief of security at PERSON that the applicant , her father and her sister - in - law should attend at his office .

By report dated CARDINAL DATE in reply to a request for information of CARDINAL DATE , the public prosecutor informed the office of the Attorney - General in GPE that there was no evidence to support the applicant ’s claims but that the investigation continued .

On DATE the public prosecutor in PERSON took CARDINAL further statements from the applicant ’s father who confirmed his earlier account of the events of DATE . Her father also declared that the applicant and her husband had left the district in DATE to find work elsewhere and that he did not know of their whereabouts .

On CARDINAL DATE the public prosecutor , Mr PERSON , interviewed Mr PERSON , a former ORG activist . Mr GPE alleged that the ORG members used the applicant ’s home as a shelter and that DATE and DATE she was having a sexual relationship with CARDINAL ORG members .

On DATE , after the applicant ’s complaint had been declared admissible by the Commission , a public prosecutor , Mr ORG , took a statement from Mr PERSON who commanded PERSON gendarmerie headquarters from DATE to DATE . Mr PERSON , who admitted to memory loss as a result of a road accident , stated that he had no recollection of any incident of rape or torture at the time in question and denied any involvement .

The applicant also alleged that she and her family have been subjected to intimidation and harassment following the communication by the Commission of her application to the ORG and particularly following the ORG ’s decision to invite her to give oral evidence . Her father was repeatedly asked her address by the public prosecutor and , on occasion , by the police . The applicant and her husband were also repeatedly called to the police station for no apparent reason , their house had been searched ( once before DATE and again on CARDINAL and CARDINAL DATE ) and they were questioned about her application to ORG . The applicant was also made to sign a statement of the contents of which she is ignorant . Further , on or CARDINAL DATE , the applicant ’s husband was taken into custody . On the first occasion , he was slapped , kicked and severely beaten with truncheons by CARDINAL police officers , one of his teeth being broken in the process . On the second occasion , he was again severely beaten by the same CARDINAL officers .

Furthermore , the applicant alleged that on DATE , the applicant , her husband , father and father - in - law were called to PERSON police station from where they were sent to the public prosecutor . He showed them the applicant ’s husband ’s statement of DATE and asked questions about it . The applicant ’s husband was asked whether the police were intimidating them , to which he replied “ Yes ” . While they were not ill - treated on this occasion , the applicant ’s husband strongly considered that they all felt intimidated by the very fact of being called by the police and that the constant calls by the police to their homes were making their situation very difficult . The applicant also referred to incidents of harassment , including the stoning of her father - in - law ’s house which neighbours attributed to the security forces .

The Government were requested by the ORG to respond to the above allegations . By letter and comments dated CARDINAL DATE , the ORG referred to the provisions of NORP criminal procedure whereby it is the duty and unavoidable obligation of public prosecutors to investigate the facts of crimes , which involves finding and questioning witnesses . In this context , police officers function as assistants to the public prosecutors . The public prosecutor who conducted the investigation instigated by the applicant and her father , and the police officers who acted under his authority , contacted the applicant and her father with the sole purpose of investigating the facts of the allegations and assembling the evidence . They submitted that the statements taken by the public prosecutor revealed no element of pressure being exerted and it was in the interests of the applicant for further evidence to be gathered . There was , they contended , no substantiation of the allegations of intimidation and harassment , the statements submitted by the applicant ’s representatives having been taken by extra - judicial means and their authenticity disputed . They submitted a letter from ORG ( ORG ) stating that no search took place at the applicant ’s house and that the purpose of the police ORG visit to PERSON was to communicate to the applicant the summons to attend the ORG ’s hearing . Since she was not there , he was asked for her address and there was no persecution involved . In an earlier communication of DATE in response to the first allegations of harassment of the applicant ’s father , the Government had responded that they rejected these allegations categorically and that they formed part of a campaign to influence the course of the proceedings and the holding of hearings to take evidence .

At the taking of evidence before delegates of the Commission in GPE on DATE , the Agent of the Government responded to allegations made orally by the applicant ’s representative concerning the repeated questioning of the applicant ’s father . He stated that it was the duty of ORG to facilitate the proceedings of the Commission and that they had to notify the applicant . To avoid any problems of non - attendance or the waste of expenditure of coming to GPE if she did not intend to comply with the summons , it was necessary to obtain her address from her father and that was why he was continually asked for the address . Requesting that information from her father could not , in his view , be regarded as harassment .

In the absence of any findings of fact reached by the domestic authorities on the applicant ’s complaint , ORG assessed the evidence and established the facts on the basis of :

The Commission ’s findings can be summarised as follows :

“ ... the evidence of these officers as regards the facilities for taking persons into custody and the practice regarding taking persons into custody during DATE has been less than frank . It finds itself left with serious doubts as to whether the gendarmerie custody register is an accurate record of persons taken into custody during DATE . In these circumstances , the Commission considers that the lack of any official confirmation of the applicant ’s detention is insufficient evidence to discredit the account of the applicant and her father , which it finds to be credible and on the whole consistent . ” ( paragraph CARDINAL of the ORG ’s report )

“ ... the applicant was blindfolded , beaten , stripped , placed inside a tyre and sprayed with high - pressure water , and raped . It would appear probable that the applicant was subjected to such treatment on the basis of suspicion of collaboration by herself or members of her family with members of the ORG , the purpose being to gain information and/or to deter her family and other villagers from becoming implicated in terrorist activities ” . ( paragraph CARDINAL of the Commission ’s report )

“ ... have been subjected to significant pressure from the authorities in circumstances which threaten to impinge on their continued participation in the proceedings before the ORG and that this has rendered the exercise of the applicant ’s right of individual petition more difficult ” . ( paragraph CARDINAL of the ORG ’s report )

LAW makes it a criminal offence

Under LAW of LAW , the public prosecutor must investigate the facts on being informed of the commission of a crime . He must conduct the necessary inquiries to identify the perpetrators , hear witnesses , take statements from suspects , issue search warrants , etc .

Article CARDINAL of the LAW authorises the public prosecutor to conduct a preliminary investigation into an offence either directly or with the support of the police .

According to Article CARDINAL the public prosecutor may institute criminal proceedings if he decides that the evidence justifies the indictment of a suspect . If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings , he may close the investigation . However , the public prosecutor may decide not to prosecute if and only if the evidence is clearly insufficient . Under Article CARDINAL a complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

Decree no . CARDINAL modifies the application of PERSON no . ORG , the Anti - Terror Law ( DATE ) , in those areas which are subject to the state of emergency , with the effect that the decision to prosecute members of the administration or of the security forces is removed from the public prosecutor and conferred on local administrative councils .

These councils are composed of civil servants . Decisions of the local council may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal . If the offender is a member of the armed forces , he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article CARDINAL of LAW .

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review .

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

This provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose liability is of an absolute , objective nature , based on the theory of “ social risk ” . Thus the administration is liable to indemnify persons who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on the state of emergency , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Pursuant to Article CARDINAL of LAW , an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully , negligently or imprudently . Pecuniary loss may be compensated by the civil courts pursuant to LAW and non - pecuniary or moral damages may be awarded under LAW .

Article CARDINAL of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE requires that a State party

“ shall ensure that any individual who alleges that he has been subjected to torture in any territory under its jurisdiction has the right to complain to and have his case promptly and impartially examined by its competent authorities . Steps shall be taken to ensure that the complainant and witnesses are protected against ill - treatment or intimidation as a consequence of evidence given ” .

Article CARDINAL of the Convention requires each State party to ensure

“ that its competent authorities proceed to a prompt and impartial investigation , wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction ” .

In its public statement on GPE adopted on DATE ( ORG / inf ( CARDINAL ) CARDINAL ) , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) , following CARDINAL visits to GPE , found :

“ In light of all the information at its disposal , the ORG can only conclude that the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE ... ” ( paragraph CARDINAL )

It emphasised the words “ persons in police custody ” , having heard fewer allegations and finding less medical evidence of torture and other forms of premeditated severe ill - treatment by members of the gendarmerie ( paragraph CARDINAL ) . It considered that “ the phenomenon of torture and other forms of ill - treatment of persons deprived of their liberty in GPE concerns at the present time essentially the police ( and to a lesser extent the gendarmerie ) . All the indications are that it is a deep - rooted problem ” ( paragraph CARDINAL ) .

In its second public statement issued on DATE the ORG noted that some progress had been made in implementing the remedial measures which it had recommended but that “ the translation of words into deeds is proving to be a highly protracted process ” ( paragraph CARDINAL ) .

The committee noted in its statement that in the course of visits to GPE in DATE its delegations had found clear evidence of the practice of torture and other forms of severe ill - treatment by the NORP police ( paragraph QUANTITY ) . It concluded that the information at its disposal

“ ... demonstrates that resort to torture and other forms of severe ill - treatment remains a common occurrence in police establishments in GPE . To attempt to characterise this problem as one of isolated acts of the kind which can occur in any country – as some are wo nt to do – is to fly in the face of the facts ” . ( paragraph CARDINAL )

In their written submissions to ORG ( see paragraph CARDINAL above ) ORG noted that the rape of a female detainee by an agent of the ORG for purposes such as the extraction of information or confessions or the humiliation , punishment or intimidation of the victim was considered to be an act of torture under current interpretations of international human rights standards . They referred in this respect to the PERSON and PERSON v. GPE decision of DATE ( Report no . CARDINAL , Case MONEY ) of ORG on Human Rights taken under LAW of ORG , to the reports published by ORG and to the fact that ORG for Former GPE had approved bills of indictment against individuals for torture based on allegations that they had raped female detainees .

ORG also drew attention to current international legal standards on the investigation of allegations of rape made by detainees , in particular Articles CARDINAL and CARDINAL of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment adopted in DATE ( see paragraph CARDINAL above ) .