The importance of effective legal representation for detainees making a statement before police is made all the more significant by the fact that, where a detainee has made a statement in police custody but later chooses to remain silent before the investigating judge or during trial, the police statement may be used as evidence against them. This principle has been upheld even in cases in which the detainee alleged that the police statement had been extracted under torture.45
International Covenant on Civil and Political Rights, Article 9 (3)
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
European Convention on Human Rights, Article 5 (3)
Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
For a detainee to be held incommunicado, the law enforcement agency responsible for the individual's arrest must make a request to the investigating judge for incommunicado measures to be imposed within 24 hours after the arrest. The judge has a further 24 hours to grant or deny this request. There is no obligation for the detainee to be presented before the judge when this decision is made, either initially or if it is extended.
Every order for incommunicado detention must be substantiated in writing (mediante comunicación motivada) by the competent judge in each individual case and each time it is extended. However, despite this clear requirement, according to the findings of the CPT, "law enforcement agencies systematically request that persons arrested in relation to terrorist activities be held incommunicado and that the competent judges systematically grant such requests".46 Furthermore, "the reasons given by the judge for ordering incommunicado detention tend to be brief and of a stereotyped nature, and … the decision is granted for the maximum period of detention".47 Lawyers interviewed by Amnesty International reported that it is common for the "reasoning" of the judge when granting incommunicado measures to be very brief and generic, sometimes simply referring that the measure "has been granted in response to a request from police".48 One lawyer said that "'Copy-paste' put an end to detainees' rights".