The CPT has repeatedly recommended to the Spanish authorities that, in addition to being examined by a state-appointed forensic doctor, detainees held incommunicado should be granted the right to be examined by a doctor of their own choice on request (in the presence of the state-appointed doctor).52 In its concluding observations on Spain's fourth periodic report of its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the CAT also recommended that individuals held in incommunicado detention receive a "joint examination by a forensic physician and a physician chosen by the detainee".53 In his most recent report to the Human Rights Council in 2008, following up on the recommendations made on a previous visit to Spain, the Special Rapporteur on torture noted positively that individual judges had, on occasion, allowed incommunicado detainees to be examined by a doctor of their own choice, but that the Spanish authorities had failed to apply this measure in a systematic manner.54 The President of the Criminal Chamber of the National Court told Amnesty International that he supports this initiative and is aiming to make it standard practice.
The effective exercise of the right of detainees to medical care and medical examinations while in detention is an important tool in preventing and detecting ill-treatment. Medical reports of examinations during this time are of great importance in successfully prosecuting those responsible when ill-treatment occurs. However, Amnesty International's research on ill-treatment by law enforcement officials in Spain has shown that it is common for police officers to remain present during the medical examination of the detainee, which is likely to intimidate the detainee into remaining silent about any ill-treatment they have suffered. Consequently, forensic medical reports do not always accurately and fully reflect the detainee's physical and mental state at the time of examination. The CPT has repeatedly underscored to the Spanish authorities that "all medical examinations should take place under conditions of confidentiality and in particular be carried out without the presence of law enforcement personnel."55
Even when police officers are not present, detainees may be afraid to speak to a state-appointed doctor about any injuries caused by torture or other ill-treatment during incommunicado detention, as they perceive the state-appointed doctor to be part of the same authority structure as the police officers inflicting the ill-treatment.56 The vice-president of the UN subcommittee on the prevention of the torture, speaking at a conference on "Medical responsibility in the international fight against torture" commented that "the quality of work of doctors based in Spanish detention centres to detect torture is insufficient" and the procedures for transmitting concerns about possible ill-treatment "do not function adequately and demonstrate grave deficiencies when compared with UN criteria".57