Accordingto the information received, Ms. Nekane Txapartegiwas arrested in Zurich on 6 April 2016 following an extradition requestissued by the Spanish authorities on 25 May 2015, after she fled her country in2007. She has been living in Switzerland for the last seven years. Ms.Txapartegi was sentenced to 6 years and 9 months in prison in 2007 forcollaboration with a criminal organization (ETA). Strong evidence indicatesthat Ms. Txapartegi was tortured to extract self-incriminating statementsleading to her conviction.
Accordingto the same information received, on 9 March 1999, Ms. Txapartegi wasapprehended by the Spanish Guardia Civil(Civil Guard) and held for five days in incommunicado detention. During the 120hours in custody, she was subjected to brutal acts of torture including rape bymutiple perpetrators, beatings, suffocation through plastig bags, threats of electricshocks, sleep deprivation, forced nudity and a mock execution.
Despitethe existence of solid evidence including eyewitness testimony and medicalreports identifying multiple injuries and psychological sequelae consistentwith torture, information extracted during the period of incommunicadodetention was used as a key piece of evidence to convict her. In addition, thecomplaint of torture lodged by Ms. Txapartegi was shelved without previouslyquestioning the vast majority ofsuspects.
Spainhas been condemned on numerous occasions over the last years by internationalhuman rights bodies for the use of incommunicado detention and the lack ofprompt, effective and independent investigations into acts of torture, inparticular in the framework of the fight against ETA. The European Court onHuman Rights has ruled against Spain on seven occasions for breaches of article3 of the Convention (prohibition of torture and inhuman or degradingtreatment), the last one being the case XabierBeortegui Martínez v. Spain (judgment of 31 May 2016).
Internally,the existence of torture has been acknowledged by former high ranking officialsof the Guardia Civil and judges, such as Mr.José Ricardo de Prada, magistrate of the National High Court (Audiencia Nacional), who in a publicevent on 24 April 2016 deplored the lack of thorough investigations into graveallegations of torture. However, torture remains tabooin the country and the authorities continue to fail to implement the judgementsand recommendations issued by international mechanisms, as already denounced by the OMCT on previous occasions.
Accordingto the preliminary findings, made public in June 2016,of a report commissioned by the Basque regional Government to the University ofthe Basque Contry-Basque Institute of Criminology, which includes forensic,documentary and testimonial evidence, more than 4'000 people were tortured inthe Basque Country between 1960 and 2013, particularly detainees held underincommunicado detention in connection with terrorist-related investigations. Ms.Txapartegi appears on the database as one of the victims identified in thestudy and, according to the forensic experts in charge of the report, theallegations and symptoms in her case are highly consistent with those oftorture victims.
Ms.Txapartegi is currently held in the Prison of Zurich awaiting extradition toSpain, the case is being reviewed by the Swiss Federal Office of Justice whowill render a decision in the coming days.
TheInternational Secretariat of the OMCT calls on the Swiss authorities to upholdthe absolute prohibition of torture in accordance with international humanrights law, in particular the UN Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment (CAT Convention), by conducting anin-depth investigation to ascertain whether it is likely that Ms. Txapartegiwas tortured to obtain a confession. If so, in accordance with Swissextradition rules, the extradition request should be refused, as the criminalproceeding abroad would be compromised by the non-observance of theexclusionary rule of evidence obtained under torture (article 15 of the CATConvention) and, subsequently, would not meet the basic due process and fairtrial standards, in contravention with articles 6 of the European Convention onHuman Rights and article 14 of the International Covenant on Civil andPolitical Rights. Subsidiarily, extradition should be made subject to thecondition of a retrial where torture allegations are investigated thoroughly,the exclusionary rule is upheld and the fairness of the proceeding is ensured.
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