Letter to CNPT: Serious concern about the conditions of detention of Ms. Nekane Txapartegi

Chairman of the National Commission for the Prevention of Torture

Address: Taubernstrasse 163003 Bern

Telephone: +41 58 465 16 20Fax: +41 58 464 26 55

Geneva, 15 June 2017

Re: Serious concern about the conditions of detention of Ms. Nekane Txapartegi, victimof torture, held in Zürich Prison awaiting extradition to Spain

Dear Prof. Dr. iur. Alberto Achermann,

The World Organisation Against Torture (OMCT), the largest network of NGOs fightingagainst torture, summary executions, enforced disappearances and all other cruel, inhuman ordegrading treatment or punishment in the world, is writing to you to express serious concernabout the imprisonment and inadequate conditions of detention of Ms. Nekane Txapartegi,currently held in Zürich Prison (Gefängnis Zürich).

Ms. Nekane Txapartegi was arrested in Zurich on 6 April 2016 following an extraditionrequest issued by the Spanish authorities on 25 May 2015, after she fled the country in 2007.Ms. Txapartegi was sentenced to 6 years and 9 months in prison in 2007 for collaborationwith a criminal organization (ETA), conviction reduced in February 2017 by the SpanishSupreme Court to 3,5 years, in application of article 579 bis 4 of the Penal Code, allowing forthe reduction of prison sentences for offences of a less serious nature.

Strong evidence indicates that Ms. Txapartegi was tortured to extract self-incriminatingstatements leading to her conviction. Ms. Txapartegi was apprehended on 9 March 1999 bythe Spanish Guardia Civil (Civil Guard) and held for five days in incommunicado detention.During the 120 hours in custody, she was subjected to brutal acts of torture including rape andsexual assault, beatings, suffocation through plastig bags, threats of electric shocks, sleepdeprivation, forced nudity and a mock execution.

Despite the existence of solid evidence including eyewitness testimony and medical reportsidentifying multiple injuries and psychological sequelae consistent with torture, informationextracted during the period of incommunicado detention was used as a key piece of evidenceto convict her. In addition, the complaint of torture lodged by Ms. Txapartegi was shelvedwithout previously questioning the vast majority of suspects.

Ms. Txapartegi has been deprived of liberty in Switzerland awaiting extradition to Spain forthe last 14 months, since 6 April 2016. On 23 March 2017, the Swiss Federal Office of Justice(OFJ) cleared her extradition to Spain in a decision with multiple elements indicating evidentdisregard for her past torture claims. The decision was contested, among others, by the currentSpecial Rapporteur on torture, Mr. Nils Melzer (see press statement released on 24 April2017, available on OHCHR website). Appeals are now pending with the Federal CriminalCourt and the Federal Administrative Court.

OMCT wishes to express concern over the failure of the Swiss competent authorities toconduct a prompt, thorough and independent examination, based on the standards andprinciples of the Istanbul Protocol, to assess the credibility of the torture claims alleged byMs. Txapartegi prior to her imprisonment. The lack of a proper medical, gender-sensitivescreening, vital to ensure that any health care condition and needs, including post-traumaticstress disorder1, were addressed immediately, is contrary to international standards and hasentailed very adverse consequences for the mental well-being of Ms. Txapartegi, who has re-experienced the very traumatic acts endured back in Spain. In addition to it, prison authoritiesfailed to carry out a gender-sensitive and trauma-informed mental health care assessment andprogramme to meet the health-care needs of Ms. Txapartegi in prison, contravening Rule 6 ofthe United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measuresfor Women Offenders, hereinafter “Bangkok Rules” 2.

It is also worth mentioning that by ordering her immediate and unconditional imprisonment,the Swiss authorities failed to consider alternatives to detention on account of the caretakingresponsibilities of Ms. Txapartegi, who is the primary carer of a 8-year old girl (Rule 2(2) ofthe Bangkok Rules).

Following a visit to Ms. Txapartegi in March 2017, OMCT aims to draw attention hereafter toseveral issues of concern, which relate to the conditions of detention of Ms. Txapartegi andthe ensuing revictimisation she is subject to on a continuing basis, taking into account thenegative effects of the following limitations and practices, individually and in an aggregatedmanner:

I) Conditions of detention (individual dimension)

Severity of conditions in maximum security facilities: Ms. Txapartegi is held in amaximum security cell (no. 417), which measures 2m (width) x 3m (length)approximately. A net in the window prevents light from coming in. Leaving aside workhours, she is allowed to leave her cell one hour to access the yard, which has a net roof.The situation of confinement and lack of suitable exercise in the open air has a negativeimpact on her physical condition, including stiffness in the muscles and eyesight problems.

Interference with intimacy: According to Ms. Txapartegi, guards never knock at the doorbefore entering the cell, creating a situation of continuous stress and discomfort (to someone diagnosed with post traumatic stress disorder), particularly given that the toilet isonly separated from the other part of the cell by a curtain.

Restrictions to communications and visits by family members: Ms. Txapartegi isallowed to see her daughter, who was recently diagnosed with a rare degenerative muscularillness, one hour per week. Communications and contact with the outside world are alsoseverely restricted. She can call once a week for 10 minutes (on the telephone with herdaughter she is only allowed to speak German – not her mother tongue, which is Basque –under the surveillance of a guard) and receive visitors once a week. OMCT recalls that thedisruption of links with families and especially their children can cause immense worryand distress to women, all the more if they are the primary carers of their children. Tocounterbalance disadvantages faced by women detained, soft law international standardsrecommend women prisoners be given the maximum possible opportunity and facilities tomeet with their children (Rules 26 and 52(3) of the Bangkok Rules), taking into accountthe best interests of children and the well-being of the mother. In the particular case of Ms.Txapartegi, the lack of contact with the outside world, with no effort being made by theprison authorities to facilitate the links with her child and family, has a direct impact on themental wellbeing of Ms. Txapartegi and her daughter, and raises serious concern about thecompliance of the prison authorities with international standards.

Access to medical services: There are no medical services available at night, not even incase of emergency. Psychological support is very limited and there is no expertise norspecialized treatment available to cater to the needs of Ms. Txapartegi as a trauma victim,contrary to Rule 7 of the Bangkok Rules. On 2 May 2017, after having reported pain in thebreast and lower back to the doctor, Ms. Txapartegi was transferred to a hospital for agynaecological checkup. The gynecologist (female), with her two assistants and twofemale police officers present, started asking questions to Ms. Txapartegi, who hadshackled hands and feet. She told the doctor she was not feeling comfortable to speak withfour persons in the room. She flagged to the doctor that she had been tortured and raped,and asked her to resume the visit without the presence of the two police officers, a requestwhich was denied. Thereafter, the doctor performed a breast palpation exam, with the twoassistants and the two police officers standing and overseeing everything. When thegynecologist wanted to proceed to the vaginal examination, she felt deeply humiliated andthe situation led her to revive the memories of the rape, which prompted a nervousbreakdown. The medical examination had to be interrupted at this point. Back in theprison, she burst into tears and vomited. Ms. Txapartegi was severely retraumatised withimmense distress after that, requiring psychiatric treatment to recover. Once more, thesituation described illustrates a total lack of sensitivity towards women who have beenvictims of gender-based violence. The facts as portrayed not only disclose a failure tosafeguard the privacy, dignity and confidentiality of medical examinations, but illustrate atotal lack of sensitivity towards women who have been victims of gender-based violence(cfr. 11(1)(2) Bangkok Rules).

II) Conditions of detention (collective dimension)

Women prisoners’ unequal access to services and rights: Multiple elements indicatethat the Zürich prison and its regime have been designed and developed with the needs ofthe majority male prison population in mind. Women deprived of liberty are placed in thesame annexes as male prisoners with psychiatric problems and transgender prisoners.Moreover, women prisoners are offered less activities than men (e.g. they cannot takeGerman lessons or play sports like men do, except ping-pong) and work assignments are,unlike men prisoners, limited to household chores (cleaning floors, doing laundry,cooking), reflecting gender stereotypes and discriminatory practices (see Rule 42 (1) of the Bangkok Rules: “Women prisoners shall have access to a balanced and comprehensiveprogramme of activities which take account of gender-appropriate needs”). OMCTbelieves affirmative action need to be taken by the prison administration to ensure thatwomen prisoners have equal access to all services and rights that male prisoners enjoy, andare accorded additional rights and given access to other services and facilities, whichrespond to their gender-specific needs.

Obligation to work: Although the opportunity to work is presented as voluntary, womendeprived of liberty with no external financial sources have no option but to work, againstRule 116 of the Mandela Rules, on an daily rate ranging between 5 and 7 CHF, in order tobuy hygienic products and pay visits to the doctor. In addition, working constitutes theonly possibility to exit the cell leaving aside the one hour alloted.

Hygienic needs: Women do not have free-of-charge access to sanitary products, whichraises doubts as to whether gender specific needs (hygiene, healthcare needs) are beingmet. In this regard, the European Committee for the Prevention of Torture and Inhuman orDegrading Treatment or Punishment (CPT) considers that the failure to provide basicnecessities, such as sanitary pads, especially in the case of women who are menstruating,who are going through menopause or who are pregnant, can amount to degrading treatmentor can evolve into it (see also Rule 5 of the Bangkok Rules: “Women prisoners shall havefacilities and materials required to meet women’s specific hygiene needs”).

Male staff: At night and on the weekends there are no female guards. Recognising thevulnerability of women to sexual abuse, Rule 81 of the Nelson Mandela Rules mandatesthat “no male staff member shall enter the part of the prison set aside for women unlessaccompanied by a woman staff member”. The exclusive presence of male staff in the nightshift and on the weekends contravenes international standards, exposing women to aheightened risk of abuse (and retraumatisation for those with a background of sexual abusesuch as Ms. Txapartegi). In this setting, it is particularly worrying that this prison recentlyadvertised for jobs and expressly stated that it prefers male applicants. OMCT calls on theCNPT to make recommendations to bring such practices to an end.

In light of the aforementioned concerns, the International Secretariat of the OMCT kindlycalls on the CNPT to verify the facts reported by promptly conducting a visit to the ZürichPrison, to interview Ms. Nekane Txapartegi and other inmates held in the same unit, and tomake recommendations accordingly with a view to:

1) guaranteeing the physical and psychological integrity and dignity of Ms. NekaneTxapartegi, catering to her needs as a torture victim. OMCT considers that there is a highand serious risk of Ms. Txapartegi suffering irreparable harm if her detention continues,especially in the circumstances described above, which are causing her severe distress andanxiety. Various coercive non-custodial measures would be suitable to replace herdetention, and any alternative should be developed taking into account gender-specificneeds, the history of Ms. Nekane Txapartegi’s re-victimization and her caretakingresponsibilities (see Rules 45 and 57 of the Bangkok Rules).

2) improving detention conditions and guaranteeing the personal integrity and dignity of allwomen deprived of liberty in Zürich Prison and in general all persons deprived of liberty inthis and all other Swiss prisons, pursuant to Article 3 of the European Convention onHuman Rights and Articles 7 and 10 of the International Covenant on Civil and PoliticalRights.

We hope that the concerns expressed in this letter will receive the attention they deserve,remaining at your disposal for any further information you may require, whether by e-mail,telephone or in person.

Your sincerely,

Gerald Staberock

Secretary General
World Organisation Against Torture