5.1 The author reiterates the fact that there was never a prompt, serious and
impartial investigation as required by the Convention, although he had
lodged a complaint with the judicial authorities together with a medical
report confirming that he had received multiple blows and bruises. He
explains that the Spanish Criminal Code makes clear distinctions in its
definitions between the serious offence of torture (art. 174) and the minor
offence of assault (art. 617). In particular, the offence of torture is
punishable by a prison term of two to six years and disqualification of the
official for two to four years, while the offence of assault is punishable only
by detention for three to six weekends or a fine. According to the author, for
the purposes of the Convention the serious, prompt and impartial
investigation required should be conducted in respect of the offence of
torture and not that of assault. Otherwise, the protection against torture that
the Convention seeks to guarantee would be ineffective. He also notes that
the procedure for serious offences is different from that for minor offences.
In the former case, the investigation is carried out by investigating judges
and the prosecution by criminal courts or provincial high courts, while cases
involving minor offences are decided by the investigating judges
themselves.
5.2 The author further states that the judgement of the Provincial High Court
completely disregarded the Convention despite the fact that he had invoked
it in his appeal. Moreover, the argument on which the judgement is based is
incompatible with the Convention, which does not require the investigation
to be conducted by the victim himself, especially when he has submitted a
complaint, a document which, according to the Committee's jurisprudence,
is not even necessary for the conduct of a prompt and impartial
investigation. Lastly, the author contests the State party's argument about the
untimeliness of the complaint, claiming that the appeal was an appropriate
means of remedying the lack of a serious, prompt and impartial
investigation. The Provincial High Court demonstrated a lack of impartiality
by distorting the legal framework applicable to a criminal act which the
organs of State are required ex officio to prosecute. The author concludes
that all available legal remedies have been exhausted, including
the amparo application to the Constitutional Court.
Issues and proceedings before the Committee
6.1 Before considering any claims contained in the communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention. The Committee has ascertained, as it is
required to do under article 22, paragraph 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. The Committee notes