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

Report
September 15, 2009

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

Furthermore, the recording of detainees is not compulsory and is only used when explicitly requested by the judge responsible for the case. Amnesty International was informed by the President of the Criminal Chamber of the National Court that judges only request recording in 50 per cent of cases, making the measure obsolete on many occasions. Other senior judicial representatives interviewed by Amnesty International explained that law enforcement officials considered it a display of personal distrust when judges ordered the measure, consequently making it a sensitive issue for judges to apply. They stated that in order to be effective, video recording must be made compulsory, by law, in all cases. In its 2008 recommendations, the UN Human Rights Committee called on Spain to ensure systematic audiovisual recording of interrogations in all police stations and places of detention.30

The National Human Rights Plan also contained other modifications to the incommunicado regime which would bar minors from being held incommunicado and give detainees the right to a second medical examination by a doctor appointed by the post holder of the (still to be created) National Mechanism for the Prevention of Torture. The National Human Rights Plan also specified the creation of guidelines for doctors examining incommunicado detainees. Although these proposals are an improvement on the current system, none of them rectifies the concerns raised by international expert bodies.


Specific concerns

 

Lack of effective legal assistance

International Covenant on Civil and Political Rights, Article 14 (3)(b)

In the determination of any criminal charge against him, everyone shall be entitled to …

… adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

European Convention on Human Rights, Article 6 (3)(b) and (c)

Everyone charged with a criminal offence has the following minimum rights:

… To have adequate time and facilities for the preparation of his defence;

… To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require

Basic Principles on the Role of Lawyers, Principles 1 and 22

… All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

… Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.