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torture can also be committed by any “other person acting in an official capacity” and that
the purposes of torture may include “intimidating or coercing him or a third person” (art. 1).
The Committee encourages the State party to further align the definition of torture
contained in article 174 of the Criminal Code with article 1 of the Convention.
8.
The Committee notes that, under article 174 of the Criminal Code, a person guilty of
torture “shall be liable to a term of two to six years’ imprisonment if the infringement was a
serious one, and a term of one to three years’ imprisonment if it was not”, which does not
appear to be in line with article 4, paragraph 2, of the Convention, under which States
parties are obliged to punish all acts of torture by appropriate penalties which take into
account their grave nature (arts. 1 and 4).
The State party should punish all acts of torture by appropriate penalties which take
into account their grave nature, in line with article 4, paragraph 2, of the Convention.
In addition, the State party should ensure that in all cases all acts of torture are
considered to be of a grave nature, since that is intrinsic and inherent in the very
concept of torture.
2.
Fundamental safeguards
9.
The Committee is concerned at information received from various sources that
statements made by detainees held at police stations may be used during proceedings, under
certain conditions, and following a change in the case law of the Supreme Court. The
Committee takes note, in this regard, of the information provided in paragraph 21 of the
State party’s replies to the list of issues, in which it is clearly stated that “according to the
Spanish legal system, only evidence given in the court oral proceedings, in the presence of
the accused and an attorney of his or her choice, may be taken into account for the purpose
of deciding a guilty or not-guilty verdict” (arts. 2 and 15).
The State party — as the State party itself noted in its replies to the list of issues —
should ensure respect for the principle that in all cases the crucial stage for giving
evidence to be weighed up must be the oral proceedings. This general principle is all
the more valid as a safeguard of the principle contained in article 15 of the
Convention — that any statement made as a result of torture shall not be invoked as
evidence — in those cases in which, regrettably, detainees are interrogated in police
stations without the presence of a lawyer of their choice, or where the lawyer is
prevented from speaking to the detainee in private (as is the case with the regime of
incommunicado detention).
10.
The Committee notes that under Measure 96 of the Human Rights Plan, in order to
better guarantee the detainee’s rights, the Government proposes to amend article 520,
paragraph 4, of the Criminal Procedure Act so as to reduce the current maximum time limit
of eight hours for ensuring the right to legal counsel. Nevertheless, the Committee notes
with concern that the right to apply for habeas corpus is not explicitly provided for in the
list of rights set out in article 520 of the Criminal Procedure Act (art. 2).
The State party should promptly amend article 520, paragraph 4, of the Criminal
Procedure Act, in order to make the right to legal counsel more effective.
Furthermore, the Committee — sharing the concern of the Ombudsman in this
regard — encourages the State party to carry out a further amendment to article 520
of the Criminal Procedure Act, to ensure that at the crucial stage of detention, when
detainees are read their rights, these rights include the right to ask to be brought
immediately before a judge.
11.
The Committee takes note of instruction No. 12/2007 issued by the Secretariat of
State for Security, concerning conduct required of the members of the State security forces
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