Portu Juanenea and Sarasola Yarzabal v. Spain: A Case of Alleged Torture and Unfair Trial | Apuntes de European Computer Driving Licence (ECDL)

CASE OF PORTU JUANENEA AND SARASOLA YARZABAL v. SPAIN

App. No(s).

1653/13

Facts of the case

Portu and Sarasola are Spanish nationals who were born in 1978 and 1977

respectively. In May 2010 they were convicted and sentenced as perpetrators of

the Madrid-Barajas Airport Terminal 4 bombing on 30 December 2006. They are

serving their prison sentences in Cordoba and Jaén (Spain).

The applicants were arrested in Mondragón (Basque Country) when they were

gathering ammunition to commit a terrorist attack, January 6, 2008, later led to

Intxaurrondo's barrack, after which they were taken to their domiciles in Lesaka

(Navarre) and, later, to San Sebastian. There, on 7 January 2008, they were

examined by two forensic doctors, who registered injuries in both arrested.

According to the applicants, both were victims of blows and threats in a place

towards which the Police turned aside before coming to the “Guardia Civil

barrack”.

In the judicial internal way, the Provincial Audience of Guipuzcoa in judgment of

December 30, 2010 hand down various sentences to four officers as authors of

tortures and injures some of the “Guardia Civil” interveners.

On 2 November 2011, the Supreme Court acquitted the four officers. It view was

that the applicants’ injuries were caused by the violence of their arrest.

Violation invoked

The plaintiffs invoke to have been tortured after their detention, 6 January 2008,

and during their incommunicado detention. According to them, this version is

corroborated by the reports of the Basque Institute of Legal Medicine, which

have concluded that the stated injuries might have taken place in agreement

with their declarations.

The plaintiffs expressed these tortures would have been inflicted in order to

punish them for their belonging to ETA (basque revolutionary army) and to

obtain a few confessions or information about themselves or other people. They

thought that the regime of incommunicado detention that has been applied to

them and the tortures that would have accompanied this one are opposite to the

minimal guarantees demanded by the TEDH for prevention of ill-treatment,

namely the right to consult with a doctor and an attorney of their choice, the

right to contact a member of their family, and the right to be led rapidly before a

judge.

In terms of the efficiency of the investigation, the applicants think that the

absolution of the material authors of the tortures declared by the Supreme Court

was opposite to the procedural obligation that imposes the article 3 of the

European Agreement. They indicate that the Spanish courts have not denied that

their injuries should have been caused by the agents in charge of their detention.

Regarding the thesis of the Government and of the Supreme Court according to

which these injuries would be the consequence of the use provided with the

force in the moment of their detention, the plaintiffs declare that the Supreme

Court has proceeded to an arbitrary reexamination of the facts without fulfilling

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App. No(s). 1653/ Facts of the case Portu and Sarasola are Spanish nationals who were born in 1978 and 1977 respectively. In May 2010 they were convicted and sentenced as perpetrators of the Madrid-Barajas Airport Terminal 4 bombing on 30 December 2006. They are serving their prison sentences in Cordoba and Jaén (Spain). The applicants were arrested in Mondragón (Basque Country) when they were gathering ammunition to commit a terrorist attack, January 6, 2008, later led to Intxaurrondo's barrack , after which they were taken to their domiciles in Lesaka (Navarre) and, later, to San Sebastian. There, on 7 January 2008, they were examined by two forensic doctors, who registered injuries in both arrested. According to the applicants, both were victims of blows and threats in a place towards which the Police turned aside before coming to the “Guardia Civil barrack”. In the judicial internal way, the Provincial Audience of Guipuzcoa in judgment of December 30, 2010 hand down various sentences to four officers as authors of tortures and injures some of the “Guardia Civil” interveners. On 2 November 2011, the Supreme Court acquitted the four officers. It view was that the applicants’ injuries were caused by the violence of their arrest. Violation invoked The plaintiffs invoke to have been tortured after their detention, 6 January 2008, and during their incommunicado detention. According to them, this version is corroborated by the reports of the Basque Institute of Legal Medicine, which have concluded that the stated injuries might have taken place in agreement with their declarations. The plaintiffs expressed these tortures would have been inflicted in order to punish them for their belonging to ETA (basque revolutionary army) and to obtain a few confessions or information about themselves or other people. They thought that the regime of incommunicado detention that has been applied to them and the tortures that would have accompanied this one are opposite to the minimal guarantees demanded by the TEDH for prevention of ill-treatment, namely the right to consult with a doctor and an attorney of their choice, the right to contact a member of their family, and the right to be led rapidly before a judge. In terms of the efficiency of the investigation, the applicants think that the absolution of the material authors of the tortures declared by the Supreme Court was opposite to the procedural obligation that imposes the article 3 of the European Agreement. They indicate that the Spanish courts have not denied that their injuries should have been caused by the agents in charge of their detention. Regarding the thesis of the Government and of the Supreme Court according to which these injuries would be the consequence of the use provided with the force in the moment of their detention, the plaintiffs declare that the Supreme Court has proceeded to an arbitrary reexamination of the facts without fulfilling

App. No(s). 1653/ the requirements demanded by the TEDH regarding the second penal instance(authority) Relying, thus, on Articles 3 (prohibition of torture and inhuman or degrading treatment) and 6.1 (right to a fair trial) of the European Convention on Human Rights. To sum up, the applicants complained that they had been victims of torture and ill-treatment during their arrest and at the beginning of their incommunicado police custody; they also complained that the officers of the Guardia Civil whom they accused of being responsible for the ill-treatment had been acquitted. The Court decided to examine their complaint under Article 3 alone. Court arguments Taking the view that the applicants’ statements had been untrue, the Supreme Court attributed no evidential value to the forensic medical reports from the Basque Forensic Institute on which the Audiencia Provincial had based its judgment, excluding them on the ground that they had been based on a false premise. The Court found that the applicants’ lack of sincerity did not enable the courts to establish any evidence for the origin of the injuries or to determine whether excessive force had been used during the arrest. The Court found, however, that the forensic pathologists had also examined in their reports the version put forward by the police officers to the effect that the applicants had violently resisted arrest, and had concluded that this version was not compatible with most of the injuries found. As regards more specifically the most serious wounds alleged by Mr Portu Juanenea, the Supreme Court had not engaged in any assessment of how or when they had been 3 caused. However, according to the judgment of the Audiencia Provincial, all the experts had agreed that Mr Portu Juanenea’s ribs had been fractured gradually, throughout the day of the arrest, and that these fractures had probably been caused by the movement of the vehicle and by the applicant’s sitting position when transferred to Intxaurrondo. In any event, and regardless of this discrepancy between the judgment of the Supreme Court and that of the Audiencia Provincial, it was clear to the Court that the former had merely dismissed the applicants’ version without determining the origin of the injuries sustained, as established by the medical reports, in the light of their arrest and detention by officers of the Guardia Civil, or seeking to ascertain whether those officers were liable. Even supposing that the Supreme Court’s version as to the origin of the injuries at the time of arrest could be accepted, that court had nevertheless refrained from assessing whether the use of physical force by the officers during the arrest had been strictly necessary and proportionate or whether the injuries sustained by Mr Portu Juanenea, after his arrest according to the Supreme Court, were attributable to the officers responsible for his custody and supervision, as he had still been in police custody and therefore in the hands of the Guardia Civil. In addition, the Government had not shown the exact circumstances of the applicants’ arrest or established that the force used by the officers involved in the operation had been proportionate. As to any injuries which could have been

App. No(s). 1653/ strict scrutiny required by Article 3 of the Convention. Accordingly there had been a violation of Article 3 in its procedural aspect. The Court held, by four votes to three, that Spain should pay 30,000 euros to Mr Portu Juanenea and 20.000 euros to Mr Sarasola Yarzabal, in respect of non- pecuniary damage. The conclusion is that In the case of Portu Juanenea and Sarasola Yarzabal v. Spain, the European Court of Human Rights has found a violation of Article 3 of the European Convention on Human Rights, in both its substantive and procedural aspects. In previous judgements, the ECHR had disclosed violations for the lack of an effective investigation on the complaints of ill-treatment made by ETA members. And this is the first time the Court has held Spain accountable for the inhuman and degrading treatment inflicted to the complainants. The sentence raises doubts as to the evaluation of evidence by the ECHR.

Portu Juanenea and Sarasola Yarzabal v. Spain: A Case of Alleged Torture and Unfair Trial, Apuntes de European Computer Driving Licence (ECDL)

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