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Executive Summary

The March 11, 2004 deadly attack in Madrid focused the world’s attention and compassion on Spain. In ten virtually simultaneous explosions on four different commuter trains, 191 people lost their lives and over 1,400 people were injured. While the Popular Party government of José María Aznar initially blamed Euskadi Ta Askatasuna (ETA), the police investigation quickly pointed to the involvement of Islamic fundamentalists. In a videotape located two days after the attacks, a purported spokesman for al-Qaeda claimed responsibility. However, the extent of coordination between the militants in Spain who perpetrated the attacks and al-Qaeda remains unclear.

Spanish authorities had long considered Spain a recruitment and logistical operations site for al-Qaeda. Soon after the September 11attacks on the World Trade Center and the Pentagon in the United States, Spanish authorities launched a multi-phased police operation to dismantle an alleged al-Qaeda cell located in Spain; most of those detained had been under police surveillance for several years. That Spain should become a direct target for al-Qaeda shocked a nation already weary from four decades of internal political violence. Since the 1960s, ETA has waged a violent campaign to establish an independent state in what is now the autonomous Basque region in northern Spain and a part of southwestern France. The March 11 bombings – referred to in Spain as 11-M – added an international dimension to Spain’s struggle against terrorism.

Spain’s strict antiterrorism measures, shaped by years of grappling with ETA violence, have been applied to all those arrested for alleged links to al-Qaeda as well as for alleged participation in the March 11 bombings. Under these measures, spelled out in Spain’s Code of Criminal Procedure, detainees suspected of membership in an armed group may be held in incommunicado detention for up to thirteen days and may be held in pre-trial detention for up to four years.¹ During incommunicado detention, detainees are held in isolation and do not have the right to counsel from the outset of detention or to a lawyer of their own choosing. They are assigned a legal aid attorney, who must be present at all interrogations and statements before a judge, but with whom they may not consult in private, either before or after these events. The legal aid attorney is unable to address the detainee directly, either to ask questions or provide legal advice. Under these restrictions, the role of the defense attorney is reduced to that of a silent witness. The law and practice of incommunicado detention in Spain renders the right of detainees to file a writ of habeas corpus challenging the lawfulness of their detention virtually meaningless.

Although incommunicado detainees are technically under judicial supervision, in practice the competent judge does not see the detainee until he or she has spent three, or even five, days in police custody.  Detainees are examined regularly by court-appointed forensic doctors, an important safeguard against torture, but not all reports of ill-treatment are duly investigated. There is no access to an examination by a doctor of the detainee’s choice. Finally, the right of non-native Spanish speakers to use an interpreter when making a formal statement to the police is not respected in practice.

The right of terrorist suspects to an effective defense, already undermined by the limitations on access to counsel during the incommunicado period, is further impaired by the use of secret legal proceedings. Judges may – and often do – impose secrecy, or secreto de sumario, on the investigation and judicial proceedings, either in whole or in part. Under secreto de sumario, defense attorneys do not have access to critical information regarding the charges against their clients or the evidence against them, including the full grounds for remand to pre-trial detention. This restricted access may be kept in place until the investigative phase of the legal process is almost concluded.

Some terrorism suspects have been subject to conditions in police custody and pre-trial detention that contravene the obligation to respect the inherent dignity of all persons deprived of their liberty. Incommunicado detainees have been held in underground cells with no natural light and kept shoeless even during the arraignment hearing in court. In pre-trial detention, terrorism prisoners are frequently held under a high-security regime that severely limits their time outside the cell and contact with other inmates. Finally, the long-standing policy of dispersing terrorism suspects around the country has a detrimental effect on their right to maintain ties with their families.

Human Rights Watch vigorously condemns all acts of terrorism as gross abuses of human rights. The victims of the horrific March 11 bombings, and all victims of terrorism, have the right to see the perpetrators brought to justice, and states have the responsibility to protect their citizens from such acts. Legitimate and effective action against terrorism must, however, be carried out with due respect to fundamental rights.  

Citing its long experience with fighting separatist Basque violence, the Spanish government sees itself as a leader in the effort to combine effective counter-terrorism measures with full respect for internationally recognized human rights. Spain is a party to all relevant major human rights instruments, including the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Principles, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

This report examines aspects of Spain’s antiterrorism regime that give rise to violations of Spain’s obligations under international human rights law. It makes concrete recommendations to the government of Spain on ways to bring its counter-terrorism measures into conformity with international standards. While this report addresses the impact of Spain’s antiterrorism legislation on the rights of those accused in connection with international terrorism, all of our conclusions and recommendations are applicable to any person arrested and charged under Spain’s antiterrorism provisions. Many of our concerns have been raised in the past by international and national human rights bodies with respect to the treatment of suspected members of ETA. Human Rights Watch believes that for Spain to assume a leadership position in the fight against terrorism without undermining respect for human rights standards, critical changes must be made to both the law and practice of its counter terrorism measures.