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European court of Human Rights

EU says Spain should have investigated presumed tortures to Otamendi

According to the European court of Human Rights, Spanish authorities should have carried out a genuine investigation into allegations of police ill-treatment of Martxelo Otamendi.

  • Basque journalist Martxelo Otamendi. Photo: EITB

    Basque journalist Martxelo Otamendi. Photo: EITB

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A ruling by the European court of Human Rights said on Tuesday that the Spanish authorities should have carried out a genuine investigation into allegations of police ill-treatment of the Egunkaria director Martxelo Otamendi while held incommunicado in police custody and held that Spain was to pay the Basque journalist 20,000 euros in respect of non-pecuniary damage and 4,000 euros in respect of costs and expenses.

The applicant, Martxelo Otamendi Egiguren, a Basque journalist director of the Basque daily newspaper Euskaldunon Egunkaria, was arrested on 20 February 2003 in the course of an investigation into the offences of membership of and collaboration with the terrorist organisation ETA.

He was placed in incommunicado detention in police custody. In the days that followed Mr Otamendi Egiguren was examined on four occasions by a forensic doctor. In his reports the doctor noted, among other things, that Mr Otamendi Egiguren had complained that he had been forced to remain standing for long periods, had been threatened with torture and struck in the genitals in an attempt to intimidate him, and also that someone had pretended to shoot him in the temple.

On 25 February 2003 Mr Otamendi Egiguren was brought before an investigating judge. He claimed that he had been subjected to ill-treatment.

Mr Otamendi Egiguren was released the same day on bail of 30,000 euros. In a judgment of 12 April 2010, Mr Otamendi Egiguren was acquitted on the charge of membership of a terrorist group on the grounds, in particular, that “the prosecuting parties [had] not demonstrated that the accused had the slightest links with ETA”. On the subject of the alleged ill-treatment, the court stated that “the judicial review of the conditions of the [applicant’s] incommunicado detention in police custody [had been] neither sufficient nor effective”.

Relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Otamendi Egiguren complained, in particular, of the lack of an effective investigation into his alleged ill-treatment while being held incommunicado in police custody. The application was lodged with the European Court of Human Rights on 9 September 2008.

Court decision

According to the ECHR, where an individual made a credible assertion that he or she had suffered treatment infringing Article 3 at the hands of the police, the State authorities had a duty to conduct an effective investigation in order to identify and punish those responsible.

The Court noted that Mr Otamendi Egiguren, who had been held incommunicado in police custody for five days, had on two occasions (first on 25 February 2003 and again
on 25 March 2003) made specific and detailed allegations to the effect that he had been ill-treated in police custody. The Court therefore considered that Mr Otamendi Egiguren’s claims were credible from the standpoint of Article 3, and confirmed that an effective investigation was required in such a case.

The Court therefore considered that the investigation carried out had not been thorough or effective enough to satisfy the requirements of Article 3 of the Convention.

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