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Recommendations

Human Rights Watch is deeply concerned that current antiterrorism provisions in Spanish criminal law and code of procedure violate fundamental guarantees under international human rights law, and provide inadequate safeguards against ill-treatment in detention and the violations of the right to a fair trial.

To the Government of Spain:

Significantly reform incommunicado detention

In particular, legal and policy reforms should be enacted to ensure that all suspects in police custody have the right to:

  • Access to legal assistance from the outset and throughout the period of detention. All detainees should have the right to see a lawyer from the moment in which they are detained, and not only at the formal declaration;
  • Confer privately with their lawyer, especially before any official statements are made;
  • Notify a person of their choice about the arrest and place of detention after as short a delay as absolutely necessary. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has repeatedly stated that a period of a maximum of forty-eight hours would strike a better balance between the requirements of the investigation and the interests of detained persons.

Improve judicial supervision of detainees in police custody

  • All detainees should be brought systematically before a judge. Any judge ordering a restricted regime should see the detainee in person when issuing the order and again before ordering an extension of the period in custody.

Ensure the availability and effectiveness of the right to habeas corpus

  • All detainees should be notified immediately, in a language they can understand, of the right to habeas corpus and provided basic information about how to exercise this right.

  • Judicial authorities and lawyers must interpret the right to habeas corpus in Spanish law as to include an obligation of the examining magistrate to justify fully not only the procedure but also the substantive grounds of the detention.

Guarantee the right to an effective defense

  • All legal aid attorneys on the Audiencia Nacional (National High Court) duty roster must be made fully aware of their right and obligation to intervene effectively in all official proceedings involving their clients. In particular, the right and obligation to participate actively in the defense of their clients’ rights during the police statement and arraignment hearing before the examining magistrate.

  • The degree of permissible contact between attorney and client during the police declaration should be clarified. For example, all legal aid attorneys and police officers should receive clear guidelines explicitly stating that  the attorney  may speak to the detainee and direct questions to the detainee during the statement proceedings. Police officers should be instructed not to obstruct attorneys from directing questions and giving advice to their clients.

  • Non-native Spanish speakers should always be provided an interpreter during the police statement.

  • The use of secret legal proceedings (secreto de sumario) should only be used in the most exceptional cases, and the examining magistrate should provide reasons in writing for the measure. Its use should be particularly circumscribed in cases where the suspect is being held in pre-trial detention because of the detrimental impact secrecy has on the application for provisional release.

  • The Code of Criminal Procedure should be modified to obligate the examining magistrate, where secreto de sumario has been imposed, to include all relevant information, such as evidence obtained and witness statements, in the orders remanding suspects into custody.

  • The right to be tried within a reasonable time must never be sacrificed, even in the most complex cases. Extensions of the maximum two-year period in pre-trial detention by another two years should be highly exceptional, and defense appeals against the extension should be reviewed with utmost speed. Authorities must exercise special diligence in cases where the suspect is being held in pre-trial detention in order to prevent the use of anticipatory sentencing and uphold the right to the presumption of innocence.

Ensure adequate safeguards for detainees in police custody

  • All reports of ill-treatment during police custody should be fully investigated. Judges must act promptly to ascertain the veracity of all allegations of mistreatment that come to their attention, even when the forensic medical examinations do not reveal any physical abuse.

  • The National Police and Civil Guard should ensure that all suspects in custody are treated with dignity. Measures designed to protect the physical integrity of suspects and others in the detention facility should be limited to those strictly necessary. In particular, the practice of holding suspects and presenting them in court without shoes should be abolished.

  • Independent observers, including accredited nongovernmental and international organizations, should be allowed access to police stations to verify the material and physical conditions of detainees.

Improve conditions in pre-trial detention

  • Clarify in the Penitentiary Regulations how much time incommunicado detainees in pre-trial detention are allowed outside their cell each day, and ensure that this minimum is respected.

  • Incommunicado prisoners should be entitled, at a minimum, to the same amount of time outside their cell as regular prisoners in solitary confinement (two hours). Where possible, they should be permitted the same amount of time guaranteed to prisoners in the restrictive closed regime (three or four hours).

  • Ensure that all prison facilities comply fully with penitentiary regulations regarding time outside the cell and participation in communal activities for inmates held under the high-security closed regime.

  • Consider modifying the penitentiary regulations to increase the minimum amount of time inmates in the closed regime may spend outside their cell on a daily basis, as well as their access to programmed, communal activities.

  • Cease the practice of dispersing terrorism suspects. Decisions about the location of terrorism suspects should be made according to same criteria and principles used to determine the location of regular prisoners, that is, they should be detained as close to their usual place of residence and their families as possible.

Ensure that the expulsion of foreign terrorism suspects conforms with Spain’s non-refoulement obligations

  • Reaffirm the absolute nature of the obligation not to return any person to a country where there are substantial grounds for believing that he or she may be in danger of being subjected to torture or prohibited ill-treatment, in full conformity with international law.

Exercise leadership within the U.N. Committee on Counter Terrorism

  • Spain should include in its next periodic report to the CTC details of its efforts to guarantee respect for human rights in the fight against terrorism.

To the Defensor Del Pueblo (Ombuds)Institution:

  • Exercise its mandate to investigate conditions of detention for terrorism suspects. On its own initiative, the Ombuds Institution should conduct unannounced visits to police stations to verify the conditions of incommunicado detainees.

To the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment:

  • Conduct an ad hoc visit to Spain specifically to monitor the treatment in detention of international terrorism suspects.


<<previous  |  index  |  next>>January 2005