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Conditions of Confinement

International Law and Standards

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Article 10 in the ICCPR thus establishes the overarching principle of respect for the dignity and fundamental human rights of all detained or imprisoned individuals. In its paragraph 2(a), Article 10 also stipulates that “accused persons shall, save in exceptional circumstances, be segregated from convicted prisoners and shall be subject to separate treatment appropriate to their status as unconvicted persons.” The Human Rights Committee has stated that this article expresses a “norm of general international law not subject to derogation.”167 In its interpretation of the analogous article in the ECHR, the European Court of Human Rights has stipulated that efforts must be made to ensure that “the manner and method of the execution of the measure [detention] do not subject [the prisoner] to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.”168

The U.N. Body of Principles on Detention and the Standard Minimum Rules for the Treatment of Prisoners (hereafter, Standard Minimum Rules) set out more specific guidelines for the treatment of all persons held in custody. In particular, the Body of Principles on Detention states that the prohibition on “cruel, inhuman or degrading treatment or punishment” should be interpreted “so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.”169

The Standard Minimum Rules contain basic requirements for the treatment of prisoners awaiting trial (Rules 85-93), including the right to wear their own clothing if suitable and clean, to remunerated work if they so choose, and to procure reading and writing materials and other means of occupation as long as they are compatible with the security and good order of the prison.170

Principle 20 of the Body of Principles on Detention states that “if a detained or imprisoned person so requests, he shall if possible be kept in a place of detention or imprisonment reasonably near his usual place of residence.”171 Furthermore, the Standard Minimum Rules also require that “special attention…be paid to the maintenance and improvement of social relations between a prisoner and his family” and that “consideration…be given to [a prisoner’s] future after release, and he shall be encouraged and assisted to maintain or establish social relations with persons or agencies outside the institution as may promote the best interests of his family and his own social rehabilitation.”172

Spanish Law

The General Penitentiary Law and its regulations govern the functioning of the prison system in Spain. The General Penitentiary Law requires respect for the human dignity of all inmates (Art. 3) and states that inmates in pre-trial detention must be held separately from those serving sentences (Art. 16). The Penitentiary Regulations stipulate that “reinsertion and reeducation” are a fundamental objective of the penitentiary system (Art. 2); all inmates have the right to individualized rehabilitation programs, and the destination of an inmate within the prison system should be based on this program “taking into consideration, especially, the possibilities for family ties and its possible repercussions [on the inmate]” (Art. 81.2).

The General Penitentiary Law establishes different prison regimes for different categories of prisoners. Article 10 of the General Penitentiary Law states that a “closed regime” is reserved for prisoners – both pre-trial and convicted inmates – who are considered extremely dangerous or who have a demonstrated inability to adapt to the ordinary, or open, regime.173 The Penitentiary Regulations specify that the closed regime is applied only to inmates classified as “first degree” (primer grado), a designation based on a variety of factors.174 All presumed or convicted members of organized crime or armed groups are classified as first degree until they show “unequivocal signs of having extracted themselves from the internal discipline of said organizations or bands” (Penitentiary Regulations, Art. 102.5). The application of closed regime should be reviewed every three months (Art. 92.3). The General Directorate of Penitentiary Institutions decides whether to transfer an inmate from the ordinary, or open, regime to the closed regime on the basis of a recommendation from a prison committee (Art. 95.1).

The closed regime has two different levels. Under the most restrictive regime, inmates who are classified as extremely dangerous are housed in special departments (Art. 91.3). These inmates should be allowed only three hours outside their individual cell per day (with the possibility of three additional hours for programmed activities. There may be no more than two inmates in the prison yard at the same time (though again, this number may be increased to five for programmed activities); and there are daily cell and body searches (Art. 93).

A slightly less restrictive regime of separate modules or centers is reserved for those who are subject to the closed regime due to “demonstrated inadaptability” (Art. 91.2). Inmates in these modules also have individual cells and should be allowed a minimum of four hours communal life, with the possibility of an additional three hours for programmed activities. At least five inmates should be allowed to participate in collective activities (Art. 94).

Total solitary confinement is only contemplated as a punishment for very serious infractions of prison rules and “evident aggressiveness or violence” (Art. 233). While the normal period is set at six to fourteen days, in cases where the inmate is being punished for more than one infraction that carries the same penalty, he or she may be held for up to 42 days in solitary confinement upon authorization by the Penitentiary Oversight Judge (Juez de Vigilancia Penitenciaria - Art. 236). While in solitary confinement, the inmate should have the right to spend two hours alone in the prison yard (Art. 254).

Analysis of Concerns

Treatment in police custody and prison during incommunicado detention

All of the 11-M suspects were taken to the UCIE facilities at the central Canillas police station upon their arrest. They were held in underground cells with no natural light for the duration of their incommunicado detention in police custody. Several of the legal aid attorneys for 11-M defendants said their clients were exhausted and disoriented when they saw them for the first time. “I saw a very confused, very tired young man,” said one lawyer.175

While in police custody, which in some cases lasted as long as five days, the detainees were not allowed to bathe or brush their teeth. Most, though not all, were stripped of their clothes and given a white jumpsuit to wear. All, however, had their shoes removed and remained in socks for the entire period, including during the hearing in the courthouse. Defendant V was released after giving his statement to the judge, after five days in police custody, at the end of the working day. His clothes and shoes were not returned to him. “We just sat there on the steps of the Audiencia Nacional, he was wearing that white jumpsuit and his socks, waiting for his family to come from outside Madrid to pick him up. They took two-and-a-half hours to get there.”176

Defendant X spent five days in police custody and was then sent to pre-trial detention for another five days incommunicado. He remained in the same white jumpsuit for seventeen days until his wife was able to bring him some of his own clothes. He was only given shoes to wear when his legal aid attorney came to visit him for the first time, three days after his incommunicado status was lifted, having spent twelve days in the same pair of socks.177 Defendants Y and Z both said they remained in the same white jumpsuit for two weeks.178

An official with the Penitentiary Institutions assured Human Rights Watch that all inmates are allowed to wear their own clothes and shoes, and would be provided these upon entering prison if they did not have any or if what they had were inappropriate or dirty.179 When asked about the practice of producing detainees in court without shoes, Interior Minister Alonso expressed his surprise, stating that in his experience “the courts would not allow a person to be transferred in those conditions.” He added that “prisons have the obligation to respect the dignity of the person.”180

The Penitentiary Regulations does not stipulate how many hours per day an incommunicado pre-trial detainee may spend outside his or her cell. A prison official told Human Rights Watch that these detainees have the right to two hours in the prison yard on their own.181 However, the three 11-M detainees with whom Human Rights Watch spoke said they were not allowed out of their cells for the entire incommunicado period. Once incommunicado status was lifted, they were allowed out in the prison yard, at first on their own, and then with other inmates.182

Conditions in pre-trial detention

All but one of the 11-M detainees are being held in the closed regime. Emilio Suárez Trashorras, the first Spaniard apprehended in connection with the theft and sale of the explosives used in the attacks, is in the ordinary regime because he has been deemed a suicide risk. He shares a cell with another inmate and participates in communal activities.183 According to an official with the Penitentiary Institutions, Zougam and one other 11-M detainee are classified as extremely dangerous and are being held in the special departments under article 91(3) described above; the rest are in the slightly less restrictive modules or centers under article 91(2).184 The same official said he did not believe any of the 11-S detainees had ever been placed under the extreme security measures envisioned in the first level of the closed regime.185

Yet, the defense attorneys for Mohamed Needl Acaid, Osama Darra, Najib Chaib Mohamed, Luís José Galán González, Driss Chebli, Said Chedadi, Mohamed Galeb Kalaje Zouaydi and Imad Eddin Barakat Yarkas all said their clients had been placed in conditions resembling solitary confinement after the March 11 bombings. Some said their clients were allowed out of their cells for one hour a day, others for two hours.186  Human Rights Watch was told these measures were adopted by the General Directorate of Penitentiary Institutions following separate, and purportedly independent, recommendations from the relevant prison committees.187

At least one of these, Needl Acaid, requested protective measures after he received threats from fellow inmates in the wake of 11-M. The Penitentiary Regulations allows the director of a given prison to adopt restrictive measures to protect the life or physical integrity of an inmate, either on his own initiative or upon request from the inmate (Art. 75.2). Though the details of this restrictive regime appear to be at the discretion of the prison director, an official in the Department for Penitentiary Administration of the General Directorate of Penitentiary Institutions told Human Rights Watch that this would mean, among other measures, only two hours alone in the prison yard per day.188 According to Needl Acaid’s lawyer, however, her client was placed in solitary confinement, with the right to go outside his cell for one hour alone in the prison yard per day, for roughly six weeks.189

Luis José Galán González, the only Spaniard by birth indicted in the 11-S case, was among the first arrested on November 12, 2001, and has remained in pre-trial detention since November 18, 2001. After having spent virtually his entire term in prison under the ordinary regime, Galán was placed in solitary confinement in mid-April 2004, according to his lawyer.190 Human Rights Watch was able to view a document from the General Directorate of Penitentiary Institutions (Direccción General de Instituciones Penitenciarias) dated April 19, 2004, justifying this measure. It states:

His pre-trial detention having been decreed for presumed acts related to criminal activity carried out at an international level by a terrorist organization, [he] has not made any demonstration of renunciation of the postulates and means used by it, which is evidence of his connection and as such his dangerous personality.

He is allowed to spend two hours alone in the prison yard; the rest of the day he is locked in his individual cell. Galán’s lawyer told Human Rights Watch that the claim that these measures have been applied to his client and other 11-S defendants for their own protection in the wake of the March 11 bombings was disingenuous since in Galán’s case, it occurred over a month after the attacks. At the time of writing, Galán had been in this restricted regime for six months. His lawyer stated that the real purpose might be to “break the physical resistance of these people.”191 

Human Rights Watch acknowledges that special measures may be necessary in exceptional situations to isolate certain detainees. These measures should, however, be proportionate to the justification and purposes of the restrictions.

The U.N. Committee against Torture has expressed concern over the rigors of the closed regime in Spanish prisons, in particular the limited number of hours outside per day; the exclusion from group, sport, or work activities; and the extreme security measures. “Generally speaking, it would seem that the physical conditions of imprisonment [of these prisoners] are at variance with prison methods aimed at their rehabilitation and could be considered prohibited treatment under Article 16 of the [Torture] Convention.”192 This article obligates all states parties to “undertake to prevent...other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”193 In conjunction with article 16, article 11 obligates states parties to “keep under systematic review...arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment” to prevent all forms of cruel, inhuman or degrading treatment or punishment.

Article 10 of the ICCPR requires not only that inmates in pre-trial detention be held separately from convicted prisoners, but also that the former be subject to separate treatment appropriate to their status in order to safeguard the presumption of innocence. All of the 11-M and 11-S detainees appear to be held separately from convicted prisoners. The official from the General Directorate of Penitentiary Institutions did however say that overcrowding sometimes forces the prison system to make exceptions to this rule.194 The actual treatment of international terrorism pre-trial detainees, however, does not appear to be substantially different from that of convicted prisoners. As described above, the rigors of the closed regime are applied without distinction to detainees and convicted prisoners.  

One complaint often expressed by defense attorneys on behalf of 11-M and 11-S detainees was the difficulty their clients faced obtaining reading material in Arabic. While the closed regime imposes certain restrictions on written materials, the source in the General Directorate of Penitentiary Institutions stated that there was no censorship or restrictions on the language of the materials.195 Nonetheless, several detainees had been denied Arabic-language books, magazines, and newspapers, and at least two had been denied copies of the Koran. A few lawyers reported that their clients were not allowed to speak in Arabic during their weekly five-minute phone calls.196

Human Rights Watch learned of one particularly disturbing instance of abusive treatment of an 11-S defendant just prior to his release on provisional liberty. Defendant J was remanded into pre-trial detention on September 18, 2003, and remained in pre-trial detention until late April 2004. He was placed under a restrictive closed regime after the March 11 bombings and was allowed outside his cell for just fifteen minutes a day on his own. On April 19, 2004, Judge Garzón ordered his release on provisional liberty, but when his lawyers went to the prison the next day, they were told he was no longer there. For the next five days, J. disappeared. As his lawyers frantically tried to locate him, J. was taken to five different prisons. During this time, he was not allowed to shower or clean himself in any way. He was not told of the order for his release, but rather that he was being transferred to the worst prison in Spain where he would surely be killed by other inmates. With Judge Garzón’s diligent help, his lawyers were finally able to locate him in the Puerto de Santa María prison in Cadíz. When one of his lawyers arrived at the prison to secure his client’s release, a prison guard told J.: “you’re not getting out of here because you’re a shitty terrorist” and threatened him that he would have to clean his cell with his tongue before going anywhere. He was eventually released. He and his lawyers have decided to postpone legal action against the prison system until after the trial.197  On November 19, 2004, defendant J was remanded back in pre-trial detention.

Dispersal of detainees

Since 1989, Spain has implemented a policy of dispersing ETA inmates, both those in pre-trial detention as well as those serving sentences, all over the national territory. The government of Spain argues the policy is necessary to avoid the concentration of large numbers of ETA members, to break the control of the organization over individual members, to prevent the planning and execution of new crimes by ETA members from within prison, and to protect victims from potential secondary victimization.198 Human rights organizations and ETA itself have argued that this measure is an additional punishment.199 In his February 2004 report on Spain, Special Rapporteur on Torture Theo van Boven said dispersal of detainees “apparently has no grounding in law and is applied arbitrarily.”200

The majority of the 11-S defendants in pre-trial detention have also been transferred from prisons near Madrid to different prisons around the country. At least three were transferred in February and early March, while at least five were relocated after the bombings. Human Rights Watch has learned that some ETA inmates were also transferred in March 2004, allegedly in response to the March 11 attacks. María Luisa Cava de Llano, First Adjunct of the Defensor del Pueblo, told Human Rights Watch that her institution had received complaints about the dispersal of ETA prisoners in response to the 11-M bombings, and had requested information from the General Directorate of Penitentiary Institutions. She explained that there would be motive for concern if this “precautionary measure” were applied on a collective, rather than individual, basis.201

An official in the Department for Penitentiary Administration of the General Directorate of Penitentiary Institutions said the 11-S detainees were transferred for two reasons. First, because the investigative phase of the trial was over and therefore it was no longer necessary to keep the detainees near the Audiencia Nacional for hearings or interrogations. Second, space was needed in Madrid prisons to accommodate the 11-M detainees. There was no other motive, he said.202

Most of the 11-S pre-trial detainees are now hundreds of kilometers away from their families. Osama Darra, who has been in pre-trial detention since November 18, 2001, was transferred on March 7, 2004, from the Navalcarnero prison near Madrid to Pontevedra prison in the town of A Lama, in Galicia province. His wife and three children live in Madrid and are now unable to visit him on a weekly basis, as they are entitled to, because the trip takes forty-eight hours by public transportation and they have no car.203 Mohamed Needl Acaid, also in prison since November 18, 2001, was transferred on April 17 from Aranjuez near Madrid to the A Coruña prison in Teixero, Galicia province. The new prison is 600 kilometers away from Madrid. The prison system did not notify either his family or his lawyer of the transfer; his wife found out when she went to visit him that he was no longer there. The long distance and her responsibilities for her four young children mean she is unable to visit him regularly.204  Imad Eddin Barakat Yarkas, who has also been in pre-trial detention for over two-and-a-half years, was transferred from the Real de Soto prison in Madrid to the Mansilla de la Mulas prison in the province of León. His wife, who had her sixth child in December 2003, does not have a car and is unable to visit him.205 

The relocations have also made face-to-face visits between the defendants and their defense attorneys almost impossible. One lawyer said he believed his clients had been transferred to obstruct the defense.206 While prison visits between inmates and their lawyers are supposed to take place under conditions that ensure confidentiality, all phone calls placed by inmates, even those to their lawyers, are made within hearing of a prison guard.207 It should be noted that almost all the 11-S defense attorneys with whom Human Rights Watch spoke said they believed their conversations with their clients were monitored. In fact, Article 51(2) of the General Penitentiary Law and Article 48(3) of the Penitentiary Regulations allow for the taping of communications between an inmate and his criminal defense lawyer with judicial authorization. However, an official with the Penitentiary Institutions assured Human Rights Watch that this measure had not been applied to any of the 11-S pre-trial detainees.208 While there may sometimes be legitimate reasons for dispersal, it appears to have been a widespread practice in relation to terrorism suspects, with negative consequences both for family visits and access to lawyers.



[167] Human Rights Committee, General Comment No. 29.

[168] Ocalan v. Turkey, (46221/99) [2003] ECHR 125 (12 March 2003), paras. 231-232.

[169] U.N. Body of Principles on Detention, Principle 6.

[170] Standard Minimum Rules for the Treatment of Prisoners, adopted August 30, 1955, by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C res. 663C, 24 U.N. ESCOR Supp. (No.1) at 11, U.N. Doc E/3084 (1957), amended ESC. Res. 2076, 62 U.N. ESCOR Supp. (No.1) at 35, U.N. Doc E/5988 (1977).

[171] U.N. Body of Principles, Principle 20.

[172] Standard Minimum Rules, Rules 79 and 80.

[173] Article 96(2) of the Penitentiary Regulations allows the closed regime to be applied to inmates awaiting trial. Penitentiary Regulations, Royal Decree 190/1996 of 9 February.

[174] Article 102(5) of the Penitentiary Regulations stipulates that the following factors be taken into consideration when determining the classification of an inmate as first degree: a) the nature of the crime(s) committed that might denote an aggressive, antisocial and violent personality; b) the commission of acts against the life or physical integrity of persons, sexual freedom or property carried out with particular violence; c) membership in organized crime or armed bands as long as the inmate does not demonstrate to have extracted himself from the internal discipline of said groups; d) active participation in riots, physical aggression, threats or coercion; e) the repeated commission of serious or very serious disciplinary infractions over time; and the introduction or possession of firearms within the penitentiary center, or of large quantities of drugs with the intent to sell. The grade classification should be reviewed every six months (Art. 105).

[175] Human Rights Watch interview with legal aid attorney H, Madrid, June 25, 2004.

[176] Ibid.

[177] Human Rights Watch interview with defendant X, Madrid, July 13, 2004.

[178] Human Rights Watch interviews with defendants Y and Z, Madrid, June 23, 2004.

[179] Human Rights Watch interview with official, Department for Penitentiary Administration, General Directorate of Penitentiary Institutions, Madrid, July 12, 2004.

[180] Human Rights Watch interview with José Antonio Alonso, Madrid, July 13, 2004.

[181] Human Rights Watch interview with official, General Directorate of Penitentiary Institutions, Madrid, July 12, 2004.

[182] Human Rights Watch interview with 11-M defendant X, Madrid, July 13, 2004; 11-M defendant Y, Madrid, June 23, 2004; and 11-M defendant Z, Madrid, June 23, 2004.

[183] Human Rights Watch interview with official, General Directorate of Penitentiary Institutions, Madrid, July 12, 2004.

[184] Ibid.

[185] Ibid.

[186] Human Rights Watch interviews with, 11-S criminal defense lawyers, Madrid and Valencia.

[187] Human Rights Watch interview with official, General Directorate of Penitentiary Institutions, Madrid, July 12, 2004.

[188] Ibid.

[189] Human Rights Watch interview with criminal defense lawyer, Madrid, June 3, 2004.

[190] Human Rights Watch interview with Andrés Jiménez Yera, criminal defense lawyer, Madrid, June 22, 2004.

[191] Human Rights Watch telephone interview, Andrés Jiménez Yera, criminal defense lawyer, October 1, 2004.

[192] U.N. Committee against Torture, Conclusions and recommendations of the Committee against Torture: Spain, U.N. Doc CAT/C/CR/29/3 23 December 2002), para. 11(d).

[193] Article 1 of the Torture Convention defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

[194] Human Rights Watch interview with official, General Directorate of Penitentiary Institutions, Madrid, July 12, 2004.

[195] Ibid.

[196] All inmates are allowed a maximum of five phone calls per week, for five-minutes each. These calls are made within hearing of a prison guard.

[197] Human Rights Watch interview with 11-S criminal defense lawyers, Madrid, June 21, 2004.

[198] Notes verbales from Permanent Mission of Spain to U.N, Appendix II (Observations on some of the Special Rapporteur’s recommendations), Recommendation 70.

[199] ETA has taken extreme and violent measures to protest dispersal of ETA prisoners. On January 17, 1996, ETA kidnapped José Antonio Ortega Lara, a prison official, and held him for 532 days in starkly inhumane conditions. In a statement released after the kidnapping, ETA demanded that the government reverse its dispersal policy, calling it a “strategy of repression.”  Ortega was rescued by Civil Guard agents. Amnesty International. Spain: A brief summary of Amnesty International’s concerns: January-October 1997, November 1, 1997 [online], http://web2.amnesty.org/library/index/ENGEUR410071997?open&of=ENG-2U3 (retrieved September 4, 2004).

[200] U.N. Special Rapporteur on Torture, 2004 report on Spain, para. 51.

[201] Human Rights Watch interview with María Luisa Cava de Llano, Madrid, July 14, 2004.

[202] Human Rights Watch interview with official, General Directorate of Penitentiary Institutions, Madrid, July 12, 2004.

[203] Human Rights Watch interview with Sebastían Sallelas, criminal defense lawyer, Madrid, June 22, 2004.

[204] Human Rights Watch interview with criminal defense lawyer, Madrid, June 3, 2004. The Penitentiary Regulations stipulate that all inmates have the right to “immediately communicate their entry into a penitentiary center to their family and lawyer, as well as his transfer to another establishment at the moment of entry.” (Art. 41(3)).

[205] Human Rights Watch interview with Jacobo Teijelo Casanova, criminal defense lawyer, Madrid, June 4, 2004.

[206] Human Rights Watch interview with 11-S criminal defense lawyer, Madrid, June 22, 2004.

[207] Penitentiary Regulations, Article 47(4).

[208] Human Rights Watch interview with official, General Directorate of Penitentiary Institutions, Madrid, July 12, 2004.


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