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CAT/C/81/D/1033/2020

Iratxe Sorzabal Diaz v. France

UNO-Ausschuss gegen Folter (CAT) · 2024-11-01 · en UN

Decision; Subjects: FRANCE, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

GE.24-20651 (E) 240125 240125

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1033/2020*, **

Communication submitted by:

Iratxe Sorzabal Diaz (represented by counsel,

Xantiana Cachenaut)

Alleged victim:

The complainant

State party:

France

Date of complaint:

12 March 2020 (initial submission)

Document references:

Decision taken pursuant to rule 115 of the

Committee’s rules of procedure, transmitted to

the State party on 29 October 2020 (not issued in

document form)

Date of adoption of decision:

1 November 2024

Subject matter:

Surrender to the Spanish judicial authorities

pursuant to a European arrest warrant

Procedural issue:

None

Substantive issue:

Charges brought based on statements allegedly

obtained under torture

Article of the Convention:

15

1.1

The claimant is Iratxe Sorzabal Diaz, a Spanish national born in 1971. She claims to

be a victim of a violation by the State party of article 15 of the Convention. The State party

made the declaration provided for in article 22 (1) of the Convention on 23 June 1988. The

complainant is represented by counsel.

1.2

On 15 March 2022, the Rapporteur on new complaints and interim measures, acting

on behalf of the Committee, decided not to accede to the complainant’s request for interim

measures.

Facts as submitted by the complainant

2.1

On 30 March 2001, the complainant was arrested at her home in Spain by the Spanish

Civil Guard on suspicion of belonging to the terrorist organization Euskadi Ta Askatasuna

(ETA). She was held in police custody for five days, without contact with her lawyer or any

member of her family, before being brought before a judge. On 4 April 2001, when she was

brought before the investigating judge, she complained of ill-treatment and refused to sign

* Adopted by the Committee at its eighty-first session (28 October–22 November 2024).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,

Maeda Naoko, Ana Racu and Abderrazak Rouwane.

United Nations

CAT/C/81/D/1033/2020

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

3 December 2024

English

Original: French

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the statements she had made as a result of torture. On 21 April 2001, she reiterated her

complaint before the court.

2.2

The complainant’s ill-treatment was corroborated by the head forensic doctor of the

Central Court for Preliminary Criminal Proceedings of the National High Court. In reports

dated 30 and 31 March 2001, the doctor noted that the complainant exhibited severe

emotional shock, dermal lesions on her sides, cephalagia accompanied by mechanical

cervicalgia, cervical and trapezius muscle contracture likely related to a chronic process,

lateral exanthema and cervical subluxation. In May 2001, Dr. H conducted a forensic

examination and concluded that the physical lesions were compatible with microburns caused

by the application of electrodes to the complainant’s skin. Moreover, the subluxation was

compatible with the abnormal body position that the complainant had been forced to maintain

for a long period of time. Lastly, there was subjective evidence of other forms of torture, such

as asphyxia caused by the covering of her head with a plastic bag that was fastened around

her neck, and terror caused by beatings, rape threats, threats against her family and sexual

touching.

2.3

On 13 September 2001, when a scandal broke out as a result of the publication of

photographs of the complainant’s battered body, she was released under judicial supervision,

despite the serious charges levelled against her. The complaint that she filed led to the

opening of proceedings at the Court for Preliminary Criminal Proceedings in Madrid.

However, the complaint was dismissed, and the case was closed on 29 June 2002. This

decision was then confirmed by the Madrid Provincial Court on 30 September 2002.

2.4

The complainant left Spain for France on an unspecified date. On 21 June 2017, the

Public Prosecutor of the Paris Court of Appeal notified her that a European arrest warrant

had been issued on 19 May 2010 by a judge of Central Court for Preliminary Criminal

Proceedings No. 2 of the National High Court in Madrid. The offences in question were

“terrorist destruction” and participation in a terrorist organization. She was accused of

involvement, as a member of ETA, in the planting of an explosive device at the Alicante-

Elche airport on 29 July 1995.1 The warrant was based on an order of indictment and remand

and on national and international arrest warrants issued on 19 May 2010 pursuant to

investigative proceedings.

2.5

By an order of 31 July 2017, at the complainant’s request, the investigating judge

appointed Dr. D to prepare a psychological evaluation of the complainant in accordance with

the Manual on the Effective Investigation and Documentation of Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). On 6 November 2017,

the doctor concluded that the complainant’s psychological symptoms were typical of

complex post-traumatic stress disorder and were highly compatible with the alleged abuse.

According to the expert’s overall conclusion following a physical examination (during which

a scar was noted) and a psychological evaluation, the complainant was suffering from

after-effects that “provided particularly convincing corroboration of her allegations of

ill-treatment”. According to the expert, this ill-treatment could qualify as torture under the

definition set forth in the Convention.

2.6

Furthermore, in a certified statement dated 25 September 2017, Dr. H attested that a

forensic examination had been conducted in May 2001 and that the physical injuries found

at that time were compatible with the allegations of torture. On 26 April 2018, the forensic

doctor, who had been the director of a research project on torture and ill-treatment in the

Basque Country between 1960 and 2014, attested to the veracity of the complainant’s

allegations.

2.7

On 17 January 2018, the investigation division of the Paris Court of Appeal ordered

that further information be obtained and, in particular, instructed the Spanish authorities to

disclose whether the complainant had lodged a complaint alleging that she had been subjected

to torture and ill-treatment while in police custody in 2001; to furnish their observations

regarding the medical certificate issued by Dr H and the conclusions reached by Dr. D; and

1 The attempt failed when a cleaning lady discovered the explosive device as she went to empty a

dustbin.

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to indicate whether the complainant’s implication in the alleged events was based on anything

other than her own statements.

2.8

On 19 January 2019, the Spanish authorities replied that the case had been dismissed

because there was insufficient evidence of the commission of the offence and that two

forensic doctors from the Institute of Forensic Medicine of the National High Court had

declared that there was no evidence of physical injuries to the complainant’s body and that

there was no reason to suspect torture. In addition, both doctors had concluded that the skin

lesions could be due to contact electric shocks but that it was not possible to establish that

conclusively and that there was no link between the clinical findings concerning the

complainant’s neck and any specific form of torture. The doctors also said that the

complainant’s statements did not correspond to the alleged acts of torture and concluded that

the complainant could not be said to meet the criteria for a diagnosis of post-traumatic stress

disorder. They went on to say that, even in the hypothetical case that the complainant did

suffer from that disorder, it would not be possible to establish a single, direct and total link

between it and the alleged torture. Lastly, the Spanish authorities stated that the information

implicating the complainant in the events of 1995 had not been derived from the statements

she had made while in police custody but rather had been obtained from documents seized in

France, following the arrest of two ETA members in 1996, that contained a self-appraisal

written by the complainant and submitted to ETA.

2.9

On 15 February 2019, in a submission made in her defence, the complainant objected

to her surrender to the Spanish authorities, invoking article 15 of the Convention, among

others. She contended that, contrary to the Spanish judge’s assertion, the statements that she

had made while in police custody and that had been obtained through torture had been

considered to be evidence of her participation in the events in question. She stressed that all

the evidence against her had, in fact, been derived solely from the statements she had made

under duress and that the expert reports and investigative analyses presented as evidence of

her involvement were merely material verification of the statements in question and should

therefore be excluded from consideration.

2.10

On 9 October 2019, the Paris Court of Appeal ordered the complainant’s surrender to

the Spanish judicial authorities in accordance with the European arrest warrant. The Court

noted that, according to the forensic doctors attached to the National High Court, given the

absence of physical injuries to the complainant’s body, there was no reason to suspect torture.

The Court went on to say that, according to the Spanish judicial authorities, the information

implicating the complainant had not been derived from her statements while at the police

station but instead stemmed from her written self-appraisal, which had been seized by the

French police during a search. The Court also noted that the investigation division, which

had previously considered two arrest warrants concerning other matters relating to the

complainant, had already issued two rulings on 26 September 2018 regarding the validity of

the document containing her self-appraisal and the fact that her statements had therefore not

been obtained through torture.2

2.11

According to the Court of Appeal, in the first part of the document containing her

self-appraisal, the complainant described the acts that she, along with other members of her

organization, had committed. She described them precisely, in chronological order, in a

detailed and thorough manner, explaining with whom she had committed the acts on each

occasion. In that document she did not state that she had made false confessions, even though

she described the conditions in which she had been held in police custody in the second part

of the document. According to the Court of Appeal, the admissions made by the complainant

in her self-appraisal constituted evidence of her involvement in the attack and, for that reason,

she could not justifiably put forward allegations of torture and ill-treatment in order to oppose

her surrender to the Spanish judicial authorities.

2.12

On 19 November 2019, the Court of Cassation dismissed the appeal lodged by the

complainant. On 9 September 2022, she was handed over to the Spanish authorities.

2 The Court of Cassation subsequently dismissed two appeals lodged by the complainant.

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Complaint

3.1

The complainant claims that the State party has failed to fulfil its obligation under

article 15 of the Convention by disregarding the evidence attesting to the fact that the Spanish

proceedings were based on confessions obtained through torture and by favouring the mere

opinion of two forensic doctors attached to the National High Court over an expert

assessment conducted in accordance with the Istanbul Protocol and certified by the

International Rehabilitation Council for Torture Victims.3 The State party has also indirectly

added a condition to the prohibition on the use of statements obtained under duress, namely

that the statements must be false.

3.2

The complainant submits that she has provided the French courts with numerous

substantive pieces of evidence that demonstrate, beyond any reasonable doubt, that she was

subjected to acts of torture of a rare intensity by Spanish officials or, at the very least, that

there was a real risk that such events had occurred. She has also provided the document –

referred to as a “confession” or “self-appraisal” – which was seized in 2001 in the course of

French legal proceedings and used by the French investigation services and on which both

the Spanish and French judicial authorities have relied to justify their claim that the

complainant is implicated in the events in question and to dismiss the debate as to the

accuracy of the allegations of torture.

3.3

To corroborate her claims, the complainant states that a 2001 Amnesty International

report referred to her case. 4 Furthermore, in a statement dated 29 September 2017, the

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment confirmed that it had met with the complainant during its visit to Spain in July

2001 in the context of allegations of ill-treatment by members of the Spanish National Police

and Civil Guard.5 According to that statement, the European Committee for the Prevention

of Torture indicated in its visit report that it had gathered evidence, including medical

evidence, consistent with those allegations. The complainant also refers to a 2002 report of

the World Organization against Torture on violence against women in Spain.6

3.4

The complainant submits that, on 20 March 2018, in response to a request for

information from the French authorities on the medical certificates and expert findings

produced by the complainant, the Spanish judge called upon two other forensic experts from

the National High Court, who criticized both Dr. H’s and Dr. D’s findings of a strong

possibility of torture and ill-treatment. The complainant also objects to the fact that the two

Spanish forensic doctors belonged to the same panel of doctors as those appointed to examine

persons held in police custody under anti-terrorism laws.

3.5

The complainant explains that she has provided evidence that the document referred

to as a “confession” or “self-appraisal” simply recounts, in the first part, the content of the

statements extracted from her while in police custody and, in the second part, the conditions

under which those confessions had been extracted.7 Her account speaks for itself, as it tells

of beatings, insults, sexual touching, electric shocks, attempts to asphyxiate her with a plastic

bag, mock executions, threats of torture and death and other forms of unbearable

psychological pressure intended to force her to say that she had taken part in a series of events

on a list prepared in advance by the police officers. It is indisputable that the statements she

made in the document referred to as a self-appraisal were extracted through torture and other

forms of ill-treatment and that they are at the very least open to question. In the complainant’s

view, it is impossible to differentiate between the content of the self-appraisal and the

statements made while in police custody.

3.6

The complainant asserts that no conclusions can be drawn from the fact that her

complaint of ill-treatment and torture in Spain has been dismissed. She considers that the

3 Letter dated 28 May 2018 on file.

4 https://www.amnesty.org/en/documents/pol10/0001/2002/en/.

5 Statement on file.

6 www.omct.org/fr/ressources/rapports/violence-against-women-10-reports-years-2003-2002.

7 The first paragraph reads: “First I’ll explain everything I owned up to.” This is followed, in the

second paragraph, by: “Then I’ll tell you how they got things out of me and how those five days went.

This is everything the cops were told: [...].”

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Spanish judicial and State systems are not capable of ensuring that complaints from people

claiming to have been subjected to torture are investigated adequately and as necessary. In

this connection, she refers to the findings of various organizations, 8 including the

Committee.9

3.7

The complainant refers to the first case considered by the Committee involving

proceedings concerning the extradition to Spain of an ETA member accused of acts of

terrorism who claimed that the confessions implicating her had been obtained under duress

and points out that, in that case, the Committee ruled that the State party was under an

obligation to ascertain the veracity of those allegations.10 In the complainant’s view, however,

the French courts’ overall assessment of the evidence, taken in its entirety, was totally biased

and arbitrary, in violation of article 15 of the Convention, since they gave full credence to

the evidence put forward by the Spanish judicial authorities while simply disregarding the

evidence submitted by the complainant. The evidence provided by the complainant included

a forensic assessment that was carried out in accordance with the internationally recognized

standards set out in the Istanbul Protocol and that attests to the high degree of credibility of

her allegations, a statement from the International Rehabilitation Council for Torture Victims

certifying that assessment and numerous pieces of evidence supporting, if further proof were

needed, the clear conclusions of that assessment.

State party’s observations on admissibility and the merits

4.1

In its observations submitted on 8 April 2024, the State party noted that its judicial

authorities, who were under an obligation to verify the accuracy of the grievance, had

examined the allegations of torture and ill-treatment made by the complainant before

deciding that she should be surrendered to Spain. The French judicial authorities, who were

unable to directly investigate the complainant’s allegations because they did not fall within

the authorities’ jurisdiction – as had already been underscored by the Committee11 – complied

with their obligation to verify the merits of the allegations and considered that proof of torture

had not been provided.

4.2

The State party notes that the investigation division had also asked the Spanish judicial

authorities whether the complainant had submitted any complaints of torture and inhuman

treatment and, if so, how those complaints had been dealt with. The final decision to surrender

the complainant to the Spanish authorities was taken only after the investigation division had

determined that the investigations carried out by the Spanish authorities into the complaint

of torture had resulted in a decision to dismiss that case.

4.3

The State party notes that the investigation division also considered that the

complainant’s implication in the events of 1995 was not based on the statements she made

while on police premises but rather on a document containing a self-appraisal that had been

thoroughly examined by the Court of Appeal judges. Lastly, the Court of Cassation had

examined the manner in which the proceedings had been conducted and had checked that the

trial court had done its duty. In the light of all these developments, it cannot be concluded

that the way in which the evidence was assessed by the French courts was manifestly arbitrary

or amounted to a denial of justice.

Complainant’s comments on the State party’s observations

5.1

In her comments of 9 September 2024, the complainant states that, while it may be

true that the French judicial authorities took steps to verify her allegations and, in doing so,

fulfilled their procedural obligations under article 15 of the Convention, it is the interpretation

8 Reports on visits to Spain published in 2003 and 2013 by the European Committee for the Prevention

of Torture; and judgments against Spain handed down between 2010 and 2018 by the European Court

of Human Rights.

9 CAT/C/34/Add.7; CAT/C/ESP/QPR/7; and Gallastegi Sodupe v. Spain (CAT/C/48/D/453/2011),

para. 7.3.

10 P.E. v. France (CAT/C/29/D/193/2001), para. 6.3.

11 Carrera Sarobe v. France (CAT/C/62/D/675/2015), para. 10.3.

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of the results of that process that she is contesting and that constitutes a denial of justice in

violation of article 15.

5.2

The complainant informs the Committee that, since the proceedings under

consideration by the Committee, she has been the subject of two other requests for surrender

in connection with different events but also based on statements that she made while in police

custody and in the document referred to as a self-appraisal. In the latest proceedings, some

other members of the investigation division of the Paris Court of Appeal refused to surrender

the complainant in a ruling dated 16 December 2020.12 The complainant believes that a

number of French judges are convinced that her complaint of torture is well-founded.

5.3

The complainant asserts that the French courts: ignored the extensive and solid

evidence that she had submitted; decided to give precedence to the opinion of the Spanish

forensic doctors who considered that, in the absence of any evidence of physical injuries to

the complainant’s body, there was no reason to suspect torture; decided to retain as evidence

of her involvement only the first part of a document recounting all the confessions made by

the complainant during the time she was in police custody, while ignoring the second part,

which detailed the torture and ill-treatment inflicted upon her prior to those confessions; and

decided to conclude that the falsity of the confessions had not been established.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any complaint submitted in a communication, the Committee must

decide whether it is admissible under article 22 of the Convention. The Committee has

ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same

matter has not been and is not being examined under another procedure of international

investigation or settlement.

6.2

In accordance with article 22 (5) (b) of the Convention, the Committee shall not

consider any communication from an individual unless it has ascertained that the individual

has exhausted all available domestic remedies. The Committee notes that, in the present case,

the State party has not contested the exhaustion of all available domestic remedies by the

complainant or the admissibility of the complaint.

6.3

In the absence of any other obstacle to the admissibility of the communication, the

Committee proceeds to its consideration of the merits of the claims submitted by the

complainant under article 15 of the Convention.

Consideration of the merits

7.1

The Committee has considered the present communication in the light of all the

information made available to it by the parties, in accordance with article 22 (4) of the

Convention.

7.2

In the present case, the Committee must determine whether the French courts’

assessment of the evidence put forward by the complainant to oppose her surrender to the

Spanish authorities under an international arrest warrant was contrary to article 15 of the

Convention. While the complainant asserts that the French authorities gave full credence to

the evidence put forward by the Spanish judicial authorities, while simply disregarding the

evidence submitted by the complainant, the State party considers that it cannot be established

that the manner in which the evidence was assessed by the French courts was manifestly

arbitrary or amounted to a denial of justice.

7.3

The Committee recalls that, in accordance with article 15 of the Convention, States

parties are under an obligation to ensure that any statement that is established to have been

made as a result of torture shall not be invoked as evidence in any proceedings. The

Committee also recalls that the generality of the provisions of article 15 derives from the

absolute nature of the prohibition of torture and implies, consequently, an obligation for each

State party to ascertain whether or not statements constituting part of the evidence in

12 Copy on file.

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proceedings for which it is competent were made as a result of torture.13 In the present case,

the Committee notes that the allegations of torture constitute part of the evidence in

proceedings concerning the surrender of the complainant to the Spanish authorities under a

European arrest warrant for which the State party has competence. The State party was

therefore under an obligation to verify the substance of the complainant’s claims.

7.4

The Committee notes that, in the proceedings concerning the European arrest warrant

issued by Spain for the complainant, the investigation division of the Paris Court of Appeal

took a final decision only after ordering, at the complainant’s request, an expert psychological

evaluation that was to be carried out in accordance with the Istanbul Protocol. The

investigation division also ordered further information to be obtained from the Spanish

authorities in order to ascertain what action had been taken in response to the complainant’s

criminal complaint regarding the torture and ill-treatment that she had allegedly suffered

while in police custody in 2001, to seek their comments on the complainant’s medical

certificate and medical assessment and to clarify whether the charges were based solely on

the statements that she had made while in police custody. On the basis of this information,

the investigation division was able to determine that the investigations carried out by the

Spanish authorities into the complaint of torture had resulted in a decision to dismiss the case.

7.5

The Committee considers that the State party cannot be required to conduct a direct

investigation into the allegations of torture made by the complainant, as such an investigation

would fall outside its jurisdiction.14 The Committee notes that the Paris Court of Appeal also

took into account the opinions of the French and Spanish forensic doctors but considered that,

in this case, a link between the alleged torture and the complainant’s physical and

psychological conditions had not been convincingly established. Lastly, the Court examined

the complainant’s allegations as to the probative value of a self-appraisal document upon

which the Spanish authorities had based their decisions.

7.6

The Committee notes the complainant’s claim that, in similar proceedings based on

the same document, the investigation division of the Paris Court of Appeal refused to hand

her over to the Spanish authorities. On this basis, she considers that French judges have

become convinced that her complaint of torture is well-founded. However, the Committee

notes that, in its ruling of 16 December 2020, the investigation division based its decision on

the fact that the Spanish authorities “did not take the trouble to respond with the necessary

rigour” concerning the allegations of torture: they had not informed the Court about the way

in which the complaint of torture had been handled, nor had they submitted any comments

on the medical certificates. In its ruling, the Court concluded that the risk of a violation of

the complainant’s right to a fair trial, in the event of her surrender to the Spanish authorities,

could not be ruled out in the absence of a sufficient investigation into the conditions under

which the charges had been brought against her.

7.7

The Committee considers that the circumstances in which the investigation division

handed down its ruling of 16 December 2020 are not the same as those surrounding the

proceedings examined in the present case, in which the Spanish authorities did provide all

the information requested by the French court in order to be able to form an opinion. Lastly,

the Committee notes that the complainant has had ample opportunity to provide the French

courts with supporting evidence and additional information regarding her claims.

8.

In view of the circumstances of this case and on the basis of the information submitted

to it, the Committee cannot conclude that it has been established that the statements in

question were obtained as a result of torture. Consequently, the Committee is of the view that

the evidence before it does not disclose a violation of article 15 of the Convention.

9.

The Committee, acting under article 22 (7) of the Convention, concludes that the

complainant’s surrender to the Spanish authorities by the State party does not constitute a

breach of article 15 of the Convention.

13 P.E. v. France, para. 6.3; and Carrera Sarobe v. France, para. 10.2.

14 Carrera Sarobe v. France, para. 10.3.