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

September 15, 2009

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

In 1996 the Human Rights Committee, in its Concluding Observations on Spain's fourth periodic report of its implementation of the ICCPR, emphasized that the provisions allowing for incommunicado detention of up to five days without a lawyer of choice "are not in conformity with articles 9 and 14 of the Covenant" (relating to freedom from arbitrary detention and right to a fair trial, respectively).37In 1997 the CAT urged the Spanish government to consider abolition of the restrictions on the right of detainees to a lawyer of their own choice.38

The CPT has also expressed concern that detainees held incommunicado could not consult in private with the officially appointed lawyer either before or after making their statements to police. According to the CPT, "the core of the notion of access to legal assistance for persons in police custody is the possibility for a detainee to consult in private with a lawyer, and in particular during the period immediately following his loss of liberty."39 The CPT has therefore recommended that detainees be granted the right "as from the outset of the period of custody, to consult in private with a lawyer, it being understood that, in the case of a detainee held incommunicado, the lawyer shall be officially appointed on his behalf".40 Where a lawyer is appointed on behalf of a detainee but is unable to consult with their client, as is the case in Spain for incommunicado detainees, the CPT has stated that "Under such circumstances it is difficult to speak of an effective right to legal assistance; the officially appointed lawyer can best be described as an observer".41

Some judges of the National Criminal court have expressed support for altering these restrictions to give incommunicado detainees the same rights as ordinary detainees to consult with a lawyer in private after making their statement to police.42

At the end of the police interview, the detainee's lawyer is allowed to put questions to the detainee and have these recorded as part of the formal statement. However, Amnesty International has been informed by a variety of sources that lawyers are sometimes ordered by police officers not to speak.43 Lawyers who attempt to intervene, or who ask for the professional identity number of the police officers present to be recorded, report receiving aggressive and intimidating treatment from police officers. This creates a further de facto bar to effective legal assistance and is contrary to Spanish legislation and jurisprudence, which recognises the right of an "active presence of the lawyer" during interrogations.44

These limitations on effective access to legal assistance violate Articles 14(3)(d) and (b) of the ICCPR and Article 6(3) (c) and (b) of the ECHR, concerning the right to communicate with a lawyer in confidence and the right to adequate time and facilities for the preparation of a defence.