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

September 15, 2009

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

The rights of detainees to communicate with others and to receive visits are fundamental safeguards against torture and other ill-treatment. According to international standards, anyone who is arrested has the right to inform, or have their family or other person of their choice informed, of their detention and location. This notification must happen immediately, or, in exceptional circumstances and when vital for the integrity of the police investigation, with the minimum possible delay. However, under the current Spanish legislation, incommunicado detainees are not able to communicate, or have this information communicated on their behalf, for the duration of the incommunicado period.

Whilst it is permissible in some in exceptional circumstances to temporarily delay notice being given to family and/or restrict access to relatives or other persons of the detainee's choice in order to protect evidence and avoid alerting other possible suspects, international standards require that any such restriction must be for the shortest time possible.

The Human Rights Committee has stated that people arrested or detained on criminal charges must be permitted to contact their families "from the moment of apprehension."59 Where this is not possible the committee has called for "the mandatory notification of relatives of detainees without delay".60 The Special Rapporteur on torture has recommended the immediate notification of relatives and that, "In all circumstances, a relative of the detainee should be informed of the arrest and place of detention within 18 hours".61 The CPT stated that the Spanish limit in notification in 1994 – when it was still at five days - was "not justifiable"62 and called for this period to be reduced "substantially". It recommended that 48 hours should be the maximum time period during which a detainee should be denied communication with family.63

Under the "Assistance Service for Relatives of Incommunicado Detainees" protocol introduced by the Basque Government in 2003 for the Basque autonomous police force (Ertzaintza), a 24-hour telephone line was established to allow the families of incommunicado detainees to obtain information on the reason for detention, location, and state of health of the detainee, as well as for family members to provide information to the police on the detainee's medical needs. This protocol is a positive step towards ensuring the rights of incommunicado detainees. However, Amnesty International is concerned that the protocol is not always correctly adhered to in practice. Amnesty International was informed by representatives of the Basque Ombudsman's Office (Ararteko) that relatives who have called the telephone line to find out where their family member has been detained have been given inadequate information, for example simply, "In the Basque Country".

Conclusions and recommendations

Amnesty International considers that the incommunicado regime in Spanish law is a violation of Spain's obligations under international human rights law both in theory and practice. No other European Union country maintains a detention regime with such severe restrictions on the rights of detainees. The continuing allegations of torture and other ill-treatment made by detainees who have been held incommunicado demonstrate the grave consequences detention in this regime may have.