F or the last four decades, ETA has repeatedly accused the Spanish police of torturing its members and routinely using beatings, waterboarding and sensory deprivation during interrogations, often holding suspects incommunicado. Successive Spanish governments have denied the accusations, instead praising the country's security forces in their fight against terrorism, saying that its interrogation methods meet European Union standards on the treatment of prisoners, and in turn accusing ETA of trying to win international sympathy and seeking political capital through false allegations.
When seen in the context of reports by international human rights groups, both positions are open to question. There is no evidence to show that the Spanish security forces have systematically used torture against ETA suspects, while at the same time, the Civil Guard, the National Police, and the Basque regional police's behavior has, on occasion, been shown to have failed to meet the standards required by law.
The Interior Ministry, regardless of which party has been in power, has pointed to the absence of any convictions by the courts against Spanish police officers for torture or mistreatment of prisoners, an offense punishable by up to six years in prison. Since legislation was passed in 1995 covering torture, not a single member of the Spanish security forces has been convicted for torture - a few officers had been found guilty of torture under the previous legislation, which dated back to 1973.
This raises the question as to whether Spain's security forces are a model of good practice, or simply immune to investigation and able to act with impunity when tackling ETA. And while there have been no convictions for torture, officers have been found guilty of mistreating prisoners arrested in anti-terrorism operations. But these were subsequently overturned on appeal.
No security agent has been convicted for torture since 1995 legislation
Other observations by the courts regarding possible mistreatment of prisoners have never resulted in judicial investigations being opened; at best officers simply received a warning.
The most recent case to hit the headlines was that of Igor Portu and Mattin Sarasola, the two ETA activists found guilty of planting the car bomb at the newly opened Terminal 4 at Barajas airport on December 30, 2006. The attack resulted in the deaths of two people and brought an end to the peace process initiated by Prime Minister José Luis Rodríguez Zapatero. Four years later, to the day, the provincial court of Gipuzkoa found four of the 16 Civil Guard officers who arrested the two men guilty of their mistreatment, as "revenge" for belonging to ETA. The court said there was evidence that they had taken the two men to woodland and beaten and kicked them. One of Portu's ribs was broken, puncturing his lung and requiring him to be transferred to hospital. The four officers were jailed.
But a year later, Spain's High Court acquitted the four civil guards.
A panel of five judges backed the guards' claim that the torture allegations were part of a "political-military strategy and procedure" by ETA.
Convicted civil guards called ETA claims a "political-military strategy"
The injuries sustained by Igor Portu and Mattin Sarasola could have been caused by a "violent arrest," the defense argued.
The four had been part of a larger group of 15 Civil Guard officers on trial - 11 of whom were later acquitted - and were given sentences ranging from two to four-and-a-half years in prison.
They had been found guilty of carrying out "serious torture" during the arrest and transfer of Portu and Sarasola in January 2008.
The court hearing the case at the time, in the Basque city of San Sebastián, was told that Sarasola had a gun pointed at his head, and that Portu was plunged several times in a river and forced to drink the water.
Human rights groups say that torture allegations are not investigated in Spain
There were also allegations of physical abuse by police officers in relation to five people arrested in the Egunkaria case, involving a left-wing, pro-independence newspaper. Seven years after they were arrested, the five members of the newspaper's board were acquitted of belonging to ETA-run organizations. The sentence backed up the claims of the accused that they had been tortured by police while held incommunicado, and that they had no direct links to ETA.
"In evaluating the statements made by the detainees we place special emphasis on their complaints of mistreatment and torture suffered while they were held incommunicado, and that these are borne out by the medical reports made after they were examined at the detention center," the sentence reads. The court added that there was "not sufficient judicial control regarding the detainees' situation while being held incommunicado."
International human rights groups have also pointed out that torture allegations are not investigated in Spain. In May, the United Nations Committee Against Torture ruled against Spain for not investigating complaints brought by Oskarz Gallastegi, who had been sentenced to 26 years in jail for his role in the murder of a judge in the Basque Country in 2001.
The UN report said that Gallastegi had told a doctor who had examined him before his trial that he had been tortured by the Basque regional police, the Ertzaintza, while being held incommunicado. He later repeated the accusation at his trial at the High Court in Madrid. Several months later he brought charges at a court in the Basque capital of Vitoria, which refused to investigate, based solely on the written testimony of the doctors who had examined Gallestegi, rather than calling them to testify in person, or allowing Gallestegi to give evidence and identify the officers who he accused of torturing him.
In 2010, Strasbourg ruled against Spain in the case of an ETA terrorist
Gallestegi was convicted on the basis of his police statement, which he claims was given under duress, and which was ratified solely by the statements of the officers who interrogated him for five days, during which he was not allowed to see a lawyer. The Supreme Court upheld the conviction.
In September 2010, the European Court of Human Rights at Strasbourg also ruled against Spain, requiring the government to compensate ETA terrorist Mikel San Argimiro, who had been arrested in May 2002 while carrying a gun and a magnet bomb in a rucksack. The sentence confirms San Argimiro's complaint that he was beaten and held in solitary confinement, during which time he suffered a broken rib, and accused the Spanish authorities of not investigating the case properly.
A Madrid court looked into San Argimiro's accusations, based solely on the medical report carried out during his arrest. The officers who arrested him were not questioned, said the court, because they could not be identified. A video recording of the arrest was not seen by the court, although the Strasbourg court said that the video could have helped establish whether San Argimiro's injuries were sustained during his arrest or afterwards, while in detention. San Argimiro was found guilty of planning an unspecified attack.
International rights organizations say that the root of the problem is the practice of holding suspects incommunicado. Spanish law permits holding terrorism suspects for up to five days without access to either a lawyer or doctor, nor to communicate with their family. The UN's Committee Against Torture warned in 2002 that this "facilitated the use of torture and mistreatment." Martin Sheinin, the UN's special rapporteur on torture, has called for the law on holding suspects incommunicado to be repealed in Europe.
ETA activists are told they should try to injure themselves while in detention"
Former High Court Judge Baltasar Garzón made some progress in introducing greater transparency into the process of investigating terrorism suspects. In 2007 he required cameras to be installed in cells where detainees were being held, as well as recording their interrogations. The procedure, which has been adopted by two of the five judges who investigate Spain's terrorism cases, allows suspects to be seen by a doctor of their choice, and for their families to have access to them. Garzón told EL PAÍS at the time that the procedure had significantly reduced the number of complaints of mistreatment by prisoners.
The Ertzaintza introduced a similar approach a decade ago. "We have to bear in mind that ETA activists are told that they should try to injure themselves while in detention and to then bring charges," says Roberto Seijo, a spokesman for the Basque police federation. "This made our officers uneasy, raising concerns that involvement in terrorism cases could ruin their careers, because even when it was proven that the complaint was false, the accuser was never punished. This is no longer a problem now that we have specific procedures. The officer who makes the arrest does not take the suspect to the station, the officer who transfers the suspect does not supervise him or her during detention or take their statement, and another officer will take the suspect to hospital if needed. And the whole arrest is filmed."
Juan Antonio Delgado, a spokesman for the Civil Guard labor union AUGC, is in favor of greater transparency, and not just in relation to terrorism suspects. "These cameras should be installed in all police stations, that way we wouldn't have cases coming up every day saying that we abuse prisoners."
Delgado describes torture and mistreatment of prisoners as "a hangover from another time," and says that ETA members are trained to report officers for abuse. "The Civil Guard is a reflection of our society; the majority of officers are professionals, but that doesn't mean that this or that officer hasn't mistreated a suspect. Accusations should be investigated and those found guilty should be punished. We want the rotten apples out of the barrel as well."
JORGE DEL CURA
In the 1980s, a number of judges and police medical examiners showed themselves willing to investigate accusations of torture brought by suspects who had been detained under anti-terrorism legislation. Accusations against, and sentences handed down to Civil Guard and police officers, were often the lead stories in the newspapers, and the Civil Guard barracks at Itxaurrondo in San Sebastián and Indautxu in Bilbao became synonymous with torture. Successive Socialist and Popular Party governments avoided investigating the accusations by preventing accused officers from appearing in court, or arranging smear campaigns against judges who launched investigations into torture accusations.
In September 1986, Alberto Ruiz-Gallardón, the current justice minister, and then the Popular Party's Congressional spokesman, put forward a proposal to change anti-terrorism legislation that would allow "the crimes of torture and mistreatment committed in the Basque Country to be tried at the High Court."
The Socialist Party, then in government, instead ordered that those arrested on anti-terrorism charges be taken to Madrid for interrogation, thus slowing down the investigation of torture allegations, and in the few cases where a successful prosecution was brought, amnestying officers.
Judicial investigations into complaints were delayed - sometimes by years - as it was decided by the relevant authorities which courts would deal with them, and along the way important paperwork and evidence was often lost. In the end, investigating magistrates were limited to applying for medical reports prepared by the High Court, which had been criticized by international human rights organizations for failing to meet the most basic requirements, and after further delays, ended up having to close investigations for lack of evidence. There was a sharp drop in convictions against police officers for torture or mistreatment.
Over the last two decades there have been just two successful convictions for torturing ETA suspects held incommunicado, neither resulting in custodial sentences. In both cases, despite the seriousness of their injuries, neither Kepa Urra, arrested in Bilbao in 1992, nor Igor Portu in San Sebastián in 2008, were transferred to Madrid. Both were seen by medical teams not under the auspices of the High Court, and the allegations of torture were investigated by local judges.
Jorge del Cura is spokesman for the Coordinating Committee for the Prevention of Torture.
JOSÉ MANUEL SÁNCHEZ-FORNET
Spanish law is adequate for preventing torture. This horrendous leftover from the days of the dictatorship continues as the exception, rather than the rule, and is applied by a few rotten apples in democratic countries. The existence of terrorism, a practice that Spain has suffered, is a factor in helping the continued practice of torture. And ETA's strategy of systematically having its activists report having been a victim of torture, far from contributing to the eradication of it, has only served as an incentive, with the torturer finding it easier to hide their reprehensible behavior.
Spain's anti-terrorism legislation can facilitate torture, and this needs to be revised. There is nothing wrong with a suspect being held incommunicado and not being able to see a lawyer, given that they are often involved to some degree in the same organization as the suspect, but the authorities could have established mechanisms to guarantee that our citizens are not subjected to torture.
This is not simply a question of guaranteeing that those responsible for torture and mistreatment are investigated, identified, and punished, but of creating mechanisms and procedures to prevent it happening in the first place, and not just to terrorists, but to any member of society, however appalling their crime. One such measure would be to introduce greater transparency into the process by installing cameras in prison cells and other places where suspects are being held (this would also prevent false allegations being brought). At the same time, prisoners' wellbeing would be better safeguarded if different officers to those that carry out the arrest undertake the suspect's interrogation. There has been criticism from within the police that this would tie officers up with dealing with further paperwork: they would do well to look at the ways in which the Basque regional police force has been able implement such measures successfully.
It is also worth asking ourselves whether the absence of any convictions against the security forces means that torture exists but is not investigated. There may be cases, but they are the absolute exception: they can and should be dealt with through the correct procedures and measures. I do not have any data on complaints brought against the police for torture or mistreatment, but the SUP police union has not had to deal with such complaints for many years. I can only hope that this is a symptom that, to a greater or lesser degree, we are on the right path.
José Manuel Sánchez-Fornet is Secretary General of the Unified Police Syndicate (SUP).