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

September 15, 2009

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

In 2008, the UN Special Rapporteur on counter-terrorism visited Spain and examined current legislation and practice. In his subsequent report on the visit he expressed concern at the continued use of incommunicado detention, allegations of ill-treatment of detainees held incommunicado and the failure of the courts to investigate all such allegations.20 The Special Rapporteur reiterated that a number of human rights bodies had recommended that incommunicado detention be discontinued, and called "for the complete eradication of the institution of incommunicado detention".21 In so doing, he noted that eradicating incommunicado detention would "strengthen the credibility of counter-terrorism measures by law enforcement bodies as a whole and would at the same time further ensure that those falsely accused of ill-treatment are cleared".22

Amnesty International is, furthermore, deeply concerned by the propensity of the Spanish authorities to label all allegations of torture or other ill-treatment made by detainees held incommunicado as tactics of an organised criminal strategy to discredit the state. Where such a reaction is made before any investigation into the substance of these allegations has taken place it can only contribute to a climate of impunity for acts of torture and other ill-treatment. It is also contrary to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which places Spain under an obligation to ensure a prompt and impartial investigation is conducted wherever there is reasonable ground to believe that an act of torture may have taken place.

Current legislation

Under the current Criminal Procedure Act, at the request of the police23, an investigating judge24 has the power to order a detainee to be held incommunicado for up to five days in any case and for up to a total of 13 days if the suspect has been detained on suspicion of terrorism-related offences.25 This 13-day period consists of up to five days of incommunicado detention in police custody, which can be extended on orders of the investigating judge by a further five-day period of incommunicado detention on remand in prison (provisional imprisonment). A further three-day period of incommunicado detention may be imposed on a remand prisoner on orders of the judge at any time during the investigation after the original (10-day) incommunicado period has expired.

Under the incommunicado regime the rights of detainees are restricted in various manners26 which are inconsistent with the international human rights standards (relevant treaties and standards include the International Covenant on Civil and Political Rights (ICCPR, Articles 9 and 14); the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, Articles 5 and 6); the UN Basic Principles for the Treatment of Prisoners; the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; the European Prison Rules; the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Standard Minimum Rules for the Treatment of Prisoners). The restrictions include the following: