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

Report
September 15, 2009

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


Individuals being held incommunicado may not be represented by a lawyer of their own choice. A duty lawyer is assigned to the detainee by the Bar Association, on the request of the police, and must attend at the police station within eight hours of being called. Although this lawyer must be present for "formal" police interrogations and when the detainee makes a statement to police, Amnesty International was informed by a representative of a judges' professional association that in practice incommunicado detainees are also questioned "informally" by police with no lawyer present.31 This allegation was reiterated by other legal professionals. One lawyer even told Amnesty International that it was his practice, upon entering the interrogation room, to ask his client if this was the first time he or she was being questioned. Although the results of any interrogation conducted without a lawyer present are not admissible in court, Amnesty International was told that in practice police reports submitted in evidence sometimes refer to information obtained in such informal interviews.32 Furthermore, the opportunity may be used to exert illegitimate pressure – physical or psychological – on the detainee.

Furthermore, in violation of the internationally guaranteed right to counsel, the assigned lawyer is not permitted to communicate with their client in private at any time during the period of incommunicado detention, both within police custody and on remand.33 In the case of Brennan V. UK (16 October 2001) the European Court found that "an accused's right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6 § 3 (c). If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness".34 The court subsequently concluded that "the presence of the police officer within hearing during the applicant's first consultation with his solicitor infringed his right to an effective exercise of his defence rights and … there has been, in that respect, a violation of Article 6 § 3 (c) of the Convention taken in conjunction with Article 6 § 1" (relating to right to legal assistance of own choosing and fair trial, respectively).35

The Human Rights Committee has clarified that Article 14(3)(b) of the ICCPR requires states to ensure "that Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter."36