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

Report
September 15, 2009

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

In 1997 the UN Committee against Torture (CAT) stated in its concluding observations on Spain that "Notwithstanding the legal guarantees as to the conditions under which it can be imposed, there are cases of prolonged detention incommunicado … which seems to facilitate the practice of torture. Most of these complaints concern torture inflicted during such periods."12 The Committee recommended that Spain consider "eliminating instances in which extended detention incommunicado and restrictions of the rights of detainees to be assisted by a defence lawyer of their choice are authorized".13 The Human Rights Committee urged Spain in 1996 "to abandon the use of incommunicado detention", expressing its concern that "persons suspected of belonging to or collaborating with armed groups may be detained incommunicado for up to five days, [and] may not have a lawyer of their own choosing". 14 The Committee recommended that the legislation prohibiting incommunicado detainees held on terrorism-related charges from appointing their own lawyer be rescinded. In 2008, the Human Rights Committee repeated its concern yet again, calling for legislative reform to abolish incommunicado detention and ensure all detainees are granted access to a lawyer of their own choice, with whom they should be able to consult in private.15

In 2002 the CAT repeated its concerns, noting that it was "deeply concerned by the fact that incommunicado detention up to a maximum of [then] five days has been maintained" and that "the Committee considers that the incommunicado regime, regardless of the legal safeguards for its application, facilitates the commission of acts of torture and ill-treatment."16 In 2003, a few months after these recommendations were made, the Spanish government increased the timeframe of incommunicado detention from five to a possible total of 13 days (in police custody and on remand) for persons held on suspicion of involvement in terrorism-related activities.

The United Nations Special Rapporteur on torture commented in his report on his visit to Spain in 2003 that "torture or ill-treatment is not systematic in Spain", but that "the system of detention as it is practised allows torture or ill-treatment to occur, in particular in regard to persons detained incommunicado in connection with terrorist-related activities".17 Noting that "incommunicado detention creates conditions that facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture"18 the Special Rapporteur recommended that the incommunicado regime be abrogated. In his most recent report to the UN Human Rights Council of 18 February 2008 following up on recommendations made on visits, the Special Rapporteur reiterated "his deep concern over the retention of the incommunicado detention regime".19