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

September 15, 2009

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

Successive Spanish governments have taken no action to implement these recommendations and in fact acted in direct opposition to them in 2003 by extending the maximum time limit for incommunicado detention (in police custody and on remand) from five to 13 days. Amnesty International calls on the Spanish authorities to abrogate the existing incommunicado detention legislation and ensure the effective protection of the rights of all persons deprived of their liberty, in a manner that is consistent with international human rights standards.

The Spanish government has justified the use of incommunicado detention on grounds of national security and public safety. However, Amnesty International continues to echo the UN Security Council2, the heads of state and government gathered at the UN World Summit in 20053, the UN General Assembly4, the European Court of Human Rights5 and the Committee of Ministers of the Council of Europe6, in underscoring that the measures states take to protect the lives and security of those within its territory, including from the threat of terrorism, must comply fully with international human rights standards.

In addition to violating important rights of detainees which are essential to ensure a fair trial, - including prompt, effective access to legal representation - the use of incommunicado detention has been strongly criticised by international human rights bodies for facilitating torture and other ill-treatment of detainees.7 The UN Commission on Human Rights stated in April 1997 that ''prolonged incommunicado detention … can in itself constitute a form of cruel, inhuman or degrading treatment.''8

The Human Rights Committee has stated that the practice of prolonged incommunicado detention may violate Article 7 of the International Covenant on Civil and Political Rights which prohibits torture and other ill-treatment, and Article 10 which provides safeguards for people deprived of their liberty.9 The Committee has also stated that ''[p]rovisions should also be made against incommunicado detention'' as a safeguard against torture and ill-treatment.10

In 1995 the UN Special Rapporteur on torture called for a total ban on incommunicado detention, stating ''Torture is most frequently practised during incommunicado detention. Incommunicado detention should be made illegal and persons held incommunicado should be released without delay. Legal provisions should ensure that detainees be given access to legal counsel within 24 hours of detention.''11