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FIBGAR / Articles  / Truth and justice for victims of torture, the great debt of our democracies

Truth and justice for victims of torture, the great debt of our democracies

The United Nations International Day in Support of Victims of Torture is commemorated every June 26, due to the entry into force in 1987 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are prohibited and constitute serious violations of human rights.

The Convention was adopted by the General Assembly on December 10, 1984, and 174 States have now ratified it. It marked the consolidation of the codification process to combat the practice of torture, being the first to specifically address the issue. In 2002, it was joined by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, aimed at establishing a preventive system of regular visits to places of detention and providing for the State’s obligation to create national protection and prevention mechanisms. In addition, the universal nature of the prohibition of torture is reinforced by the provisions of numerous international and regional human rights treaties, international humanitarian law and international criminal law.

Through it, signatory states are obliged to take legislative, administrative, judicial or other measures to prevent acts of torture in all territories under their jurisdiction (Art. 2) and are prohibited from invoking any exceptional circumstances as a justification for torture, including war or due obedience. It also understands that States may not expel, return or extradite a person when there are reasons to believe that he or she may be a victim of torture (Art. 3).

Thus, on this day it is essential to remember that the crime of torture is qualified as a form of the crime against humanity, as stated in the Rome Statute of the International Criminal Court (1998).

Experiences in past conflicts remind us of the importance of having international protection mechanisms that guarantee individuals not only the exercise of their rights but also preventive measures and guarantees of protection in the event of violations. In this regard, the Convention established the creation of the Committee against Torture (CAT) (Art. 17), the body responsible for monitoring compliance by States with the obligations contained in the Convention. This body is an indispensable tool for communities, since, provided that the State has accepted its competence (Art. 22) and the admissibility requirements are met, individuals can submit individual communications to the Committee, denouncing that they have been victims of torture, cruel, humiliating and degrading treatment by States, and hold States internationally responsible for these rights violations. The importance of these simple, accessible and effective procedures being known and used by societies makes for the effective guarantee of human rights, by the possibility of systematically investigating and preventing a violation or stopping it and taking measures to redress rights.

In Spain, despite the progress made with the creation of the National Mechanism for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2009) in compliance with the Protocol, there are still serious difficulties and challenges. Today, the regime of incommunicado detention and isolation is one of the biggest problems of the Spanish State, being a practice that facilitates and has facilitated torture and ill-treatment and increases the risk of human rights violations of detainees. According to Amnesty International Spain, although judges must justify each restriction of communication on a case-by-case basis, the right to review is denied or limited for those held incommunicado. The need to abolish this regime has been reiterated by various international bodies, such as the UN Committee against Torture (CAT), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the UN Human Rights Committee (HRC). The country has also been condemned on numerous occasions by the European Court of Human Rights (ECtHR) for failing to thoroughly investigate allegations of torture committed during such detentions and for allowing impunity for these crimes.

Despite the progress made with the enactment of the Law of Democratic Memory in 2022, Spain continues to owe a historical debt to the victims of the Franco dictatorship, failing to fulfill its international obligations by not investigating acts of torture, enforced disappearances and other crimes against humanity committed during that period. In its latest observations, the CAT has regretted that this law does not remove obstacles to the investigation of serious human rights violations committed in Spain in the past, and invited, once again, the Spanish State to consider repealing the 1977 Amnesty Law.

Internationally, torture and other serious human rights violations continue to occur frequently in many armed conflicts. Currently, there are many countries involved in historical conflicts that have not yet ratified the Optional Protocol, such as Colombia, El Salvador, Iran, Israel, Syria, Russia, among others. “War and civil conflict can be used to commit acts of torture with impunity,” said Alice Jill Edwards, Special Rapporteur on the question of torture, recalling that the protection of international human rights law also applies in situations of conflict and that “everyone must speak out against those who commit acts of torture and those who support them”.

As can be seen, although there have been great achievements towards an effective and real eradication of torture practices, the road ahead is still long and winding and is not exempt from regression if new measures to strengthen protection are not consolidated. It is clear that the prevention and investigation of torture and other ill-treatment continues to be a serious pending human rights issue in Spain and the world.

Federica Carnevale, FIBGAR collaborator.

Madrid, June 26, 2024.