16. Degrading treatment in the context of legal Proceedings


FIRST.- The universal, European, Union and Spanish regulations are categorical in prohibiting people from being subjected to torture or inhuman or degrading treatment or punishment. While the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has provided a comprehensive definition of the concept of torture, there is no equivalent for the concept of degrading treatment. However, from the ECtHR’s rules and case law, proposals for definitions have been developed, such as the one provided by the European Commission. In this opinion we have focused on the analysis of cases of degrading treatment in connection with the administration of justice in the context of judicial proceedings and investigations. This analysis has been carried out in accordance with the applicable international and European rules and the case law of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR).

SECOND.- We have concluded that in order to observe that an action of this type has entailed degrading treatment, in addition to complying with the general definitions proposed, we must observe that the following elements are met: the action is carried out by a public authority that produces pain, humiliation or fear in the subject beyond the normal relationship of administration of justice and that is used to turn it into a penalty in itself. Furthermore, the public authority that causes the pain, humiliation, contempt or fear chooses the most painful option to solve the conflict, causing the subject to be defenceless against degrading treatment that breaks the balance of the process (between parties and with the State as a party).

THIRD.- In cases where the public authority is a judge or magistrate, we cannot forget that degrading treatment will be clearly linked to the offence of prevarication, since the judge will either be applying an unfair decision knowing that it is one, or of the fair decisions at his disposal he will be applying the one that is most painful for the injured party, causing more defencelessness, as well as directly affecting the essential judicial independence, a pillar of the European Union and deserving of protection by the Union’s high court.

FOURTH.- That the professional participants in the process would be accomplices or co-authors of the previous crimes: especially prosecutors, lawyers from the administration of justice and police, to whom the law entrusts a special duty of vigilance in the maintenance of the fundamental rights of citizens.

FIFTH.- That as it is an infringement of the Fundamental Rights recognized for citizens, the judges, magistrates and lawyers of the Administration of Justice are not covered or protected by Art. 292, 293 and concordant provisions of the Organic Law of the Judiciary.