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