Geneva, 19 September 2017 – A Spanish citizen awaiting extradition to her home country for collaborating with the armed group Euskadi Ta Askatasuna (ETA) who spent a year and a half in a Swiss jail was released last Friday not because of her torture was acknowledged, but only after a court ruled that her sentence had become time-barred.
Ms. Nekane Txapartegi – then a mother of a seven-year-old child – was detained on Swiss soil in April 2016. She had been on the run since 2007 when she was handed down a sentence of six years and nine months, which the Spanish National Court in February this year halved after a change in the Spanish Criminal Code reduced sentences for non-violent terrorism-related crimes.
Though her release is obviously welcome, it does not assuage concern over Switzerland’s disregard for basic standards of due process and treatment of asylum seekers and torture survivors, as the Swiss authorities had decided to send her back home in spite of evidence that the confession that led to her conviction had been extracted under torture. Ms. Txapartegi’s release does, however, come as a victory rewarding months of intense joint campaigning by her lawyers, individuals and many civil society organizations including OMCT.
“This is great news of course,” said OMCT Vice President Dick Marty. “But we cannot hope for sentence reductions and statutes of limitation to protect tortured criminal suspects or asylum seekers. It is time all countries have the courage to stand up for the rights of all, and conduct a scrupulous assessment of all torture claims – even those against traditional democracies.”
Detention conditions in Switzerland
In June, OMCT wrote the National Commission for the Prevention of Torture raising concern about Ms. Txapartegi’s physical and psychological integrity in Zurich prison. By ordering and keeping Ms. Txapartegi in detention, in very strict detention conditions, without conducting a prompt, thorough and independent examination to assess the credibility of the torture claims alleged by her prior to her imprisonment as well as her needs, Swiss authorities may have failed to guarantee Ms. Txapartegi’s well-being.
The United Nations Committee Against Torture has ruled that torture survivors should not be detained while their extradition cases are being examined given the challenges and difficulties imprisonment entails to address the health care condition and needs, including post-traumatic stress disorder, of individuals who underwent torture.
The case of Nekane Txapartegi has exposed the existence of significant shortcomings in the Swiss legal and institutional framework, which should recognize and put in place procedures for the appropriate screening of victims of torture and other cruel, inhuman or degrading treatment or torture, in line with the so-called Istanbul Protocol, a set of United Nations guidelines for the effective investigation and documentation of torture, whose value should be recognised in law. To avoid repetition of similar situations, OMCT calls on Switzerland to urgently address these loopholes of its laws and regulations.
Swiss authorities should also provide reparation to Ms. Nekane Txapartegi for the harm suffered while in detention, including psychosocial support and trauma treatment, in line with international standards regulating abusive interferences with the right to personal liberty and the protection of torture victims.
Finally, OMCT calls on the Spanish authorities to reopen motu propio the investigation into torture and abuses suffered by Ms. Txapartegi while held under incommunicado detention, taking into account evidence furnished during the extradition proceedings, ensuring it is conducted in an impartial, independent, thorough and effective manner.
More generally, the Spanish authorities ought to open a public debate on the practice of torture in the last decades, breaking a taboo that has left thousands of torture victims without protection or reparation.
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By virtue of articles 130.1(7) and 133.1 of the Spanish Criminal Code.
 In application of article 579 bis.4 of the Spanish Criminal Code, after its modification in 2015.
 CAT, Concluding Observations: United Kingdom, UN Doc. CAT/C/GBR/CO/5, 24 June 2013, para. 30; CAT, Concluding Observations: Finland, UN Doc. CAT/C/FIN/CO/7, 20 Jan. 2017, para. 13.
Article 9.5 of International Covenant on Civil and Political Rights.