CAT/C/47/D/368/2008
Senegalese and pulled him to shore, where he immediately began to perform heart
and chest massage, while the Senegalese lay face up on the shore.”
2.6
The complainant states that she has not provided a copy of the record of the
proceedings including the decision handed down by Examining Court No. 1 of Ceuta on 28
September 2007, because neither her family nor her attorney, a member of the legal aid
office of the Southern Branch Office of the Spanish Refugee Aid Committee (CEAR/SUR),
were notified of those proceedings. The complainant further states that neither her family
nor CEAR/SUR were able to be joined as a party to the proceedings initiated by the Office
of the Attorney General.
The complaint
3.1
The complainant contends that her brother was the victim of violations by Spain of
article 1, paragraph 1, and article 16, paragraphs 1 and 2, of the Convention. The
complainant alleges that, once on board the vessel of the Civil Guard, Mr. Sonko was under
the Spanish flag, and the Spanish authorities were responsible for what happened on that
vessel and for providing due protection for persons present under that flag.
3.2
She notes that the State party, through its police officers, used force to throw the
victim into the sea, who did not know how to swim and consequently drowned. Neither the
deceased nor his companions were brought before the Investigative Police Force (Cuerpo
Superior de Policía) of Ceuta, which is the body responsible for dealing with immigration
matters, or before any court. The complainant states that there was no administrative
procedure for denial of entry, which would have involved a hearing, a decision that would
be kept in the case file and the possibility of appealing any such decision. At the time that
the border guards were alerted by thermal imaging cameras of the attempt being made by
four foreign nationals to enter Spanish territory and gave the order to stop them, the
administrative procedure for denial of entry was initiated, but was not continued.
3.3
The complainant contends that throwing the migrants overboard constituted
inhuman and degrading treatment, was an offence against their personal dignity and put
their lives in danger (as demonstrated by the fact that the victim did in fact die), in violation
of article 16, paragraph 1, of the Convention.
3.4
The complainant also invokes violations of the International Covenant on Civil and
Political Rights and of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment.
3.5
With respect to the admissibility of the complaint, she argues that all legal remedies
were exhausted when Examining Court No. 1 of Ceuta found that it was not competent to
hear the case because the events in question had occurred in Morocco and issued a
dismissal of proceedings order.1 The order was not challenged and became final.
Consequently, domestic remedies in Spain have been exhausted.
1
According to the Criminal Procedure Act:
“Article 637. Proceedings shall be dismissed:
a.
When there is no reasonable indication that the act which gave rise to the proceedings
was actually perpetrated.
b.
When the act does not constitute a criminal offence.
c.
When the persons being tried as perpetrators, accomplices or accessories after the fact
appear exempt from criminal responsibility.”
4
GE.12-40869