Spain: Out of the shadows - Time to end incommunicado detention

September 15, 2009

Spain: Out of the shadows - Time to end incommunicado detention

Under Spanish law, there is no obligation for the judge personally to see a detainee held on terrorism-related charges (whether or not they are held incommunicado) until five days after their arrest. This violates the requirement in Article 9(3) of the ICCPR and Article 5(3) of the ECHR that detainees must be brought "promptly" before a judge. Whilst international standards do not expressly define the meaning of "promptly", the HRC has stated that "any delays should not exceed a few days" 49. The European Court of Human Rights has ruled that detaining a person for four days and six hours before bringing them before a judge was not prompt access.50

Amnesty International notes that Article 520bis of the Spanish criminal procedure act does provide for ongoing judicial supervision of the detainee during incommunicado detention, granting a judge the power to request information at any time during the incommunicado detention period, or seek information personally or by delegation, concerning the detainee's situation. However, this is left to the judge's individual discretion and Amnesty International was informed by the President of the Criminal Chamber of the National Court that in practice judges rarely avail themselves of this power. Although this is not a violation of any legal obligation, it could be considered a professional failing - Judge Fernando Andreu of the National Court has highlighted that the judge is responsible for the detainee and "orders incommunicado measures in order to safeguard the investigation, but must not neglect their responsibility to protect the detainee".51


Lack of access to doctor of own choice

Standard Minimum Rules for the Treatment of Prisoners, Rules 24 and 91

… The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary…

… An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.

Spanish law permits detainees held incommunicado to see court-appointed forensic doctors every day but does not allow them to be examined by a doctor of their own choice. They may request a medical examination by a second doctor, but s/he will also be state-appointed.