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The Use of Incommunicado Detention

International Law and Standards

The most significant, and most criticized, feature of Spain’s antiterrorism provisions is the use of incommunicado detention. Incommunicado detention is generally understood as a situation of detention in which an individual is denied access to family members, an attorney, or an independent physician. In some cases, as in Spain, incommunicado detainees do not even have the right to notify anyone about their arrest. While there is no prohibition under international law of incommunicado detention per se, there is significant consensus among United Nations human rights bodies that it can give rise to serious human rights violations and should thus be prohibited. The U.N. Human Rights Committee, charged with monitoring the implementation of the International Covenant on Civil and Political Rights, issued an authoritative statement on the interpretation of the ICCPR’s Article 7 on the prohibition of torture. In General Comment No. 20, adopted in 1992, the Committee recommends that provisions be taken against incommunicado detention.57 The U.N. Commission on Human Rights has repeatedly reaffirmed this position, most recently in a 2003 resolution, holding the view that “prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture.”58 

Despite these general affirmations, many countries continue to practice incommunicado detention, both pursuant to national legal provisions as well as illegally. Its use is usually justified as a necessary measure in the fight against terrorism. The United Kingdom, for example, allows for forty-eight hours incommunicado detention under the Terrorism Act 2000; in June 2003, Australia adopted a Terrorism Act empowering the Australian Security Intelligence Organization to detain and hold suspects incommunicado for up to seven days, a period that can be extended by order of the Attorney General for successive periods of seven days. Countries as varied as Egypt, Serbia and Bolivia all allow incommunicado detention for different periods of time. Countless more countries are cited by human rights organizations for systematically and illegally holding terrorism suspects in incommunicado detention.

Spanish Law

The Code of Criminal Procedure (LEC) sets out restrictions on the rights of persons arrested under suspicion of membership in an armed group, terrorists, or rebels in terms of both the length and the conditions of detention. The rights and guarantees of all persons subject to arrest are detailed in Article 520. Any person arrested has the right to be informed immediately, and in an understandable manner, of his or her rights and the grounds for the arrest (Art. 520(2)). All detainees have the right to choose a lawyer and to request that the lawyer be present during any interrogations and any identification proceedings (Art. 520(2)(c)), as well as the right to notify relatives or another person of their choice about the arrest and the place of detention (Art. 520(2)(d)). Detention in police custody should last “no longer than the time strictly necessary to carry out the investigations aimed at establishing the facts;” the detainee must be released or brought before a judicial authority within seventy-two hours (Art. 520(1)).

In cases involving terrorist suspects, however, the maximum three-day limit in police custody may be extended by forty-eight hours. The extension must be requested within the first forty-eight hours of detention and authorized by the competent judge within the following twenty-four hours (Art. 520 bis (1)). This judge may authorize that these individuals be held incommunicado in police detention (Art. 520 bis (2)). Terrorism suspects may therefore be held for a total of five days in incommunicado police detention.

Persons being held incommunicado do not have the right to notify a third party about their detention or whereabouts; to receive visits from family members,  spiritual advisors, or a doctor of their own choosing; or to communication or correspondence of any kind (Art. 527). Incommunicado detainees do not have the right to designate their own lawyer, but must be assisted by a legal aid attorney. Furthermore, these detainees do not have the right to a private consultation with their lawyer (Art. 527(a) and (c)). Every detainee is guaranteed the right to remain silent until brought before a judge; the right to not incriminate himself or herself or confess to guilt; to have access to a free interpreter if necessary, and, in the case of foreign nationals, to have their consulate informed (Art. 527, with reference to rights set out in Art. 520(2)(a-f)).

All detainees in police custody have the right to an examination by a state forensic doctor.59 The November 2003 reform of the LEC granted an additional right to incommunicado detainees to request a second forensic medical examination by a court-appointed forensic medical officer.60 This second examination will be performed by a state-appointed medical officer, either from within the same corps of forensic doctors as the first examiner or brought from another tribunal.61

Once the preliminary police investigations are concluded, and in any event no later than five days after the arrest, the detainee must be brought before a competent judicial authority. At this point, the judge may order the individual released without charge, released on provisional liberty, or commit the individual to provisional prison, or pre-trial detention.

A November 2003 reform of the LEC amended Article 509 to allow the judge to impose an additional five days of incommunicado status in provisional prison on individuals suspected of membership in an armed band or terrorist group, or of having committed a crime in concert with two or more individuals.62 This means these individuals may be held in incommunicado detention for ten consecutive days. The amended article now also states that the competent judge or tribunal “may order that the detainee return to being incommunicado, even after having been placed in communication” when the ongoing investigation so warrants. This final period may last no longer than three days.

Text Box: Incommunicado Detention Timeline
24 hours: Within 24 hours after the arrest, the arresting agency must request a 48-hour extension of the 72-hour maximum police custody period.

48 hours: Examining magistrate must approve or deny extension.

72 hours: Within 72 hours of the arrest, the arresting agency must:
•	notify the local bar association and request the appointment of legal aid counsel; and
•	take the detainee’s statement in the presence of the legal aid attorney (the detainee may refuse to make this statement);

If no extension has been requested, or the request was denied, the detainee must be brought before the examining magistrate.

5 days: Maximum amount of time detainee may be held incommunicado in police custody. By this time, the detainee must have a hearing before the examining magistrate, at which time the magistrate will determine whether to release the detainee without charge, release the detainee on bail or conditions designed to ensure his or her appearance in court at a later date, or remand the detainee into pre-trial detention. If the magistrate lifts incommunicado status before the hearing, the detainee may be assisted by private counsel; otherwise, the legal aid attorney will assist.

The magistrate may impose five more days of incommunicado status in pre-trial detention.

10 days: Total maximum amount of time detainee may be held incommunicado (five days in police custody and five days in pre-trial detention).

Three additional days of incommunicado detention may be imposed on persons in pre-trial detention at any point after the ten days have expired.

Analysis of Concerns


Current Spanish law allows for a maximum of thirteen days of incommunicado detention. The provision in Article 509 of the LEC allowing a judge to order three more days of incommunicado status in addition to the stated maximum of five days in pre-trial detention was apparently designed to allow judges to re-impose incommunicado status at a later stage in the investigation.63 A literal reading of the article 509, however, suggests that the three additional days may be imposed immediately, and Judge Garzón confirmed that this is permissible under current law.

An official government report from February 2004 explained that “these…three days are not added to the prior incommunicado period, rather there must exist a temporal separation of the two.”64 In practice, some detainees are being held for thirteen days consecutively. At least three of the 11-M detainees were in fact held incommunicado for the full five days in police custody and another eight days in pre-trial detention, in other words, thirteen consecutive days.65

The Spanish government has consistently ignored or rejected appeals by international human rights authorities to modify or abrogate the incommunicado regime. The U.N. Committee against Torture said in 2002 that it was “deeply concerned” over the (then) five-day incommunicado detention period in Spain and stated that “regardless of the legal safeguards for its application, [it] facilitates the commission of acts of torture and ill-treatment.”66 The U.N. Special Rapporteur on Torture, Theo van Boven, issued a report on Spain in February 2004 in which he stated that “prolonged incommunicado detention may facilitate the perpetration of torture and could in itself amount to a form of cruel, inhuman or degrading treatment.”67 

Spain strenuously objected to van Boven’s report, calling it “unfounded and lacking in rigour, substance and method.”68 In its official response to the report, Spain stated that during 2002-2003, 75 percent of incommunicado detentions lasted seventy-two hours and 25 percent lasted five days. Only one detainee was held incommunicado beyond five days.69 Rejecting wholesale the Special Rapporteur’s recommendation to abrogate the incommunicado regime, the Spanish government argued that “[t]he recourse, under judicial control, to incommunication of certain detainees continues to be important from an operational standpoint, since it avoids the destruction of proof or relevant evidence, the disappearance of the means employed in attacks, the flight of accomplices or collaborators, all of which occurred in the past due to the criminal collaboration of lawyers close to the ETA environment.”70

Insufficient judicial supervision

The European Convention on Human Rights (ECHR) stipulates that all persons arrested “shall be brought promptly before a judge or other officer authorized by law to exercise judicial power” (Art. 5(3)).71 In decisions related to alleged violations of Article 5(3) of the Convention, the European Court of Human Rights has refrained from establishing a precise time-limit within the meaning of the word “promptly” in the view that the special features of each case must be assessed.72 It has however said that “the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5, para. 3, that is to the point of effectively negating the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority.”73 

In the case of Brogan and others v. the U.K., the four applicants alleged that their rights under Article 5(3) had been violated as a consequence of their arrest under the Prevention of Terrorism (Temporary Provisions) Act of 1984, having been held in police custody without being brought before a judge for periods ranging from four days and eleven hours to six days and sixteen and a half hours. They were all released without charge. While acknowledging that “the investigation of terrorist offences undoubtedly presents the authorities with special problems,” the Court held:

Even the shortest of the four periods of detention, namely the four days and six hours spent in police custody…falls outside the strict constraints as to time permitted by the first part of Article 5 para. 3. To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word “promptly.” An interpretation to this effect would import into Article 5 para. 3 a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision.74

The Court ruled there had been a breach of Article 5(3) in respect of all four applicants.

In current Spanish law and practice, a terrorism suspect may be held incommunicado in police custody for five days before being brought before a judge. As established in the LEC, incommunicado detention must be the subject of a judicial order, either upon request by the police or Civil Guard, a public prosecutor, or on the instructing judge’s own initiative. When the arresting agency sees fit, it can impose incommunicado detention immediately; the judge must ratify this decision within twenty-four hours of the arrest. At any time, the competent judge may request information about the detainee’s conditions or conduct a personal inspection; this is, however, at the discretion of the judge rather than an obligation.75 Furthermore, there is no obligation on the judge to personally see the detainee before extending the initial seventy-two hour detention period by another forty-eight hours. Judge Garzón, who reiterated to Human Rights Watch his publicly-expressed opposition to the use of incommunicado detention, stressed that detainees have three important guarantees during this period: examinations by forensic doctors every six hours, the right to file a writ of habeas corpus, and the ability to relate any ill-treatment to the legal aid attorney assigned to the case.76

In practice, in the 11-S and 11-M cases, many of the suspects were held for the full five days without seeing the judge. The first men arrested, in November 2001, for alleged membership in an  al-Qaeda cell in Spain were all held for the maximum five days before their hearing with Judge Garzón; it appears that those arrested in connection with this case in successive police operations were arraigned within seventy-two hours. Judge Garzón told Human Rights Watch he extended the incommunicado period in police custody only in the most complicated cases.77

As far as Human Rights Watch has been able to ascertain, a significant number of those arrested in connection with 11-M were held for longer than seventy-two hours before seeing Judge Del Olmo; in the fifteen cases for which Human Rights Watch has specific information, all detainees were held for over four days, and many for five days, before the initial hearing in court. One of the accused, Fouad el Morabit Anghar, was detained on three separate occasions: he was arrested for the first time on March 24 and released without charge on March 29; he was rearrested two days later, on March 31, and held for three days until his release on April 2; he was arrested for the third time on April 8 and spent four days in police custody, before Judge Del Olmo remanded him to pre-trial detention on April 12.78

The European Committee for the Prevention of Torture (CPT) has stated that five days of incommunicado detention before being a hearing with a judge may not be in conformity with Spain’s obligations under international law and has recommended that “persons held incommunicado be systematically brought before the competent judge…prior to the taking of the decision on the issue of extending the detention period beyond 72 hours.”79

Limitations on the right to counsel

The right of all persons accused of a crime to the assistance of a lawyer is a fundamental procedural guarantee. Article 14 of the ICCPR and Article 6 of the ECHR stipulate that everyone charged with a criminal offense has the right “to defend himself in person or through legal assistance of his own choosing” or to be assigned free legal assistance if necessary. The Human Rights Committee and the European Court of Human Rights have considered these provisions applicable to periods before trial, including the period in police custody.80 The U.N. Basic Principles on the Role of Lawyers requires that:

All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.…81

The antiterrorism provisions in Spain’s LEC impose serious limitations on the right to counsel during incommunicado detention. First, incommunicado detainees do not have the right to designate their own lawyer but rather must be assisted by a legal aid attorney for the duration of the incommunicado period. Second, these detainees do not have the right to see a lawyer from the outset of detention; the first time they see the legal aid attorney is when they are called to give an official police statement, an event that may occur after three and in some cases five days in custody. Finally, incommunicado detainees do not have the right to confer in private with their lawyers at any time, neither before nor after the statement to the police or the testimony before the judge.   

Human Rights Watch acknowledges that the prohibition on appointing one’s own lawyer was adopted in response to the concern that Basque separatist detainees were using lawyers themselves connected to ETA to transmit information to the outside world and prejudice the investigation. It may well be, in the words of a high-level advisor in the Ministry of Justice, “a justified precaution given the long history of terrorist groups using lawyers associated [with the same group].”82 It is the view of Attorney General Conde-Pumpido that incommunicado status “does not prevent those it affects from enjoying the right to defense, which continues to be offered by a professional of the Bar Association, but rather [from enjoying] the assistance of a lawyer especially designated, in many cases, by the very criminal association to which he belongs.”83 The Spanish Constitutional Court has stated that the restriction on the right of the incommunicado detainee to choose his own counsel “cannot be called a restrictive, unreasonable or disproportionate measure…because the limitation it imposes on the fundamental right [to legal assistance] is reasonably balanced with the pursued result.”84

However, the practice of waiting until the allowable period of incommunicado detention is almost over before requesting the legal aid attorney’s presence for the formal police statement seriously undermines the detainee’s right to counsel and significantly heightens his or her susceptibility to unlawful pressure. While the arresting agency must notify the Bar Association immediately upon detention, it appears to be common for the National Police (or Civil Guard, as the case may be) to delay making an official request for the designation of a legal aid attorney until only hours before the statement is due to be made. The Association of Free Lawyers (Asociación de Libres Abogados, ALA), an independent membership organization, alleged in a report to the CPT that in cases of incommunicado detention, the arresting agency only notifies the Bar Association once the time and place has been set for the police statement, which may take place at any time during the three day or, if extended, five day, incommunicado period. The ALA concludes that in practice, lawyers are unable to assist these detainees from the moment of detention, as the government of Spain alleges.85

Human Rights Watch gathered testimonies about the experience of nine 11-M suspects. Of these, two were held for five days before the official police statement was taken; five were held for four days; and the remaining two were held for two days. One suspect was held for nearly ninety-six hours before his statement was taken. In almost all cases, the lawyer was notified the same day the statement was to be taken; he or she was only told the detainee’s name, and the time and place of the proceeding.

The three 11-M defendants with whom Human Rights Watch spoke recounted that they had been questioned by police during the incommunicado period without the presence of their lawyer. Defendant X said he was illegally questioned nightly without a lawyer present, sometimes two or three times a night, for the four nights he spent in police custody.86 Defendants Y and Z both said they were each questioned once by the police during their incommunicado period.87 The girlfriend of a fourth defendant told Human Rights Watch that he had been interrogated every day while in police custody.88 

High-level representatives of the Ministry of Justice assured Human Rights Watch that the arresting agency has the obligation to notify the legal aid attorney and proceed with taking the official statement as quickly as possible. Indeed, according to these representatives, an unjustified delay in taking the statement, and the resulting delay in the detainee’s access to a lawyer, would give rise to criminal responsibilities. “It’s possible for the police to wait until the end of the seventy-two hours [the maximum period of incommunicado detention where the judge has not ordered an extension of  forty-eight hours], but this would be an abuse and could be illegal,” according to Cesáreo Duro Ventura, an advisor to the Secretary of State of the Justice Ministry.89 

The CPT has repeatedly recommended that incommunicado detainees have access to a lawyer from the outset of their detention. A detainee is more apt to tell his or her lawyer in a private setting about torture or ill-treatment that has not left any visible traces. The CPT concluded in its 2001 report on Spain that “existing provisions on the right to legal assistance fail to ensure that persons deprived of their liberty by the law enforcement agencies have, as from the very outset of their custody, the fully-fledged right of access to a lawyer which the Committee has recommended.”90 None of these provisions has been the subject of reform since that report was written.

Finally, the prohibition of a private conference between lawyer and detainee further undermines the detainee’s right to defense at a critical stage. The LEC prohibits all detainees in police custody from speaking with their lawyer in private before the police statement; incommunicado detainees have the added restriction that they may not speak with their counsel in private even after this statement, nor may they confer in private before or after the statement before the judge (in the event incommunicado detention has not been lifted prior to this proceeding).91 Incommunicado detainees thus cannot discuss their situation openly with their lawyers, nor receive legal advice before crucial official statements that may be used against them in subsequent legal proceedings. The prohibition of a direct, private attorney-client conference deprives the lawyer of any opportunity to collect detailed information relevant to the detainee’s case. That lack of information prevents the legal aid attorney from making an effective application for provisional release as long as incommunicado status is maintained.  

Shortcomings in the right to a medical examination

One of the principal concerns about incommunicado detention is that it creates conditions that facilitate the commission of torture or other forms of mistreatment. With this in mind, international human rights bodies have repeatedly stressed the importance of medical exams as a safeguard against such acts. In its General Comment No. 20, the Human Rights Committee recommended that incommunicado detainees have the right to be examined by a doctor of their own choice, with the understanding that the examination could take place in the presence of a court-appointed medical officer.92

In its 2001 report on Spain, the CPT expressed its concern about continuing reports of torture of ETA suspects while in police custody and reiterated its recommendation that detainees have the right to a medical examination by a doctor of their own choice:

The CPT has never suggested that the right of access to a doctor of one’s own choice should replace a medical examination by a forensic doctor or another doctor employed by the State. However, a second medical examination by a doctor freely chosen by the detained person can provide an additional safeguard against ill-treatment. As matters stand, the current legal provisions and practice concerning access to a doctor by detained persons fail to guarantee that safeguard.93 

Under Spanish law, all detainees in police custody have the right to an examination by a forensic doctor. As described above, the November 2003 reform of the LEC added the right of incommunicado detainees to request a second forensic examination. This reform, however, falls short of compliance with the CPT and the Human Rights Committee’s recommendations, as it still does not allow the detainee to be examined by a doctor of his or her own choice. Attorney General Conde-Pumpido explained to Human Rights Watch that the judge could assign the second forensic medical officer either from within the same court’s corps or request the services of a doctor from another tribunal.94 

Human Rights Watch did not hear any allegations of torture in connection to the al-Qaeda or 11-M cases. However, we did learn of three 11-M suspects who reported to the judge that they had been mistreated while in police custody. According to his legal aid attorney, defendant Q told Judge del Olmo that he had been made to stand with his arms outstretched for long periods of time and that he had been hit in the stomach. “But the judge saw that he was exaggerating, that he was lying…the forensic doctor’s reports didn’t include any information [about this],” the lawyer said.95 As far as the lawyer is aware, the judge did not make any inquiries about these allegations; the lawyer also dismissed the complaints and therefore did not pursue any action either. The fact that the legal aid attorney, entrusted with the obligation to defend the detainee, did not insist on an investigation into the matter is particularly disturbing.

Similarly, defendant R responded to Judge Del Olmo’s question about treatment in police custody by saying that he had been beaten during the first two or three days, “but that he understood that the police were just doing their job.” According to his legal aid attorney, Judge del Olmo did not ask any further questions. The lawyer has not been able to see the forensic doctor’s reports because they are sealed under the secret legal proceedings.96 Defendant V also told the judge that the police had consistently prevented him from sleeping while he was in their custody, either knocking on his cell door at frequent intervals, or coming in to slap him on the back of his head to wake him up.97

Human Rights Watch is concerned that while Judge del Olmo has consistently inquired about treatment of all of the 11-M detainees, he does not appear to have responded to the three reports of ill-treatment detailed above.98

 In its 2001 report, the CPT stated:

…when allegations of such forms of ill-treatment come to their notice, judges should not treat the absence of marks or conditions consistent with those allegations as in itself proving that they are false. In such cases, reaching a sound conclusion as to the veracity of the allegations will also require evaluating the credibility of the person making them; in other words, the persons concerned (as well as any other relevant persons) should be interviewed on this specific matter by the judge, and the opinion of a forensic doctor should be sought.99

Limitations on right to an interpreter

International human rights law clearly requires that appropriate measures must be adopted to ensure that an accused person fully understands the charges against him or her as well as all legal proceedings arising from those charges. The U.N. Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment (Body of Principles on Detention) states “[a] person who does not adequately understand or speak the language used by the authorities responsible for his arrest…is entitled to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to his arrest.”100 

The language of the ICCPR and the ECHR refers to the right of all accused individuals to “be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him” (Article 14(3)(a) of the ICCPR and Article 6(3)(a) of the ECHR) and to “have the free assistance of an interpreter if he cannot understand or speak the language used in court” (Article 14(3)(f) of the ICCPR and Article 6(3)(e) of the ECHR). Human Rights Watch believes that these articles, though they refer specifically to proceedings at trial, should be read in conjunction with Principle 14 of the Body of Principles on Detention, and interpreted to include the right to an interpreter for any proceeding that forms part, or may form part, of the legal proceedings against an accused.

All of the foreign nationals accused in connection with the 11-M bombings have had the use of an interpreter during the statement before the judge. However, none were allowed to have an interpreter during the official police statement. In the case of defendant V, an interpreter actually came to the room where the police statement would be taken, but the officers present dismissed him saying his services were not required. His lawyer, who did not insist at the time, told Human Rights Watch, “I recognize now that he didn’t understand everything that well and that it would have been better to use an interpreter. But he was exhausted and just wanted to get it over with.”101

[57] U.N. Human Rights Committee, General Comment No. 20, para. 11.

[58] U.N. Commission on Human Rights, Resolution 2003/32, para. 14.

[59] LEC, Article 520 (2) (f).

[60] LEC, Article 510 (4).

[61] Human Rights Watch interview with Cándido Conde-Pumpido, Madrid, July 12, 2004.

[62] Organic Law 15/2003 of 25 November 2003, reforming the Code of Criminal Procedure.

[63] Human Rights Watch interview with Fernando Flores Giménez, Chef de Cabinet of the Secretary of State; Alberto Palomar Almeda, Cabinet of the Secretary of State; and Cesáreo Duro Ventura, advisor to the Secretary of State, Ministry of Justice, Madrid, July 13, 2004.

[64] Notes verbales from Permanent Mission of Spain to the U.N., p.13 (Human Rights Watch translation).

[65] Human Rights Watch interviews with three legal aid attorneys, Madrid, June 24, 2004.

[66] U.N. Committee against Torture, Conclusions and recommendations of the Committee against Torture: Spain. 23/12/2002, CAT/C/CR/29/3, para. 10.

[67] Civil and Political Rights, Including the Question of Torture and Detention. Report of the Special Rapporteur on the question of torture, Theo van Boven. Addendum: Visit to Spain. E/CN.4/2004/56/Add.2, February 6, 2004, paragraph 34.

[68] Notes verbales from Permanent Mission of Spain to the U.N., p.1.

[69] Notes verbales from Permanent Mission of Spain to the U.N., p.64.

[70] Notes verbales from Permanent Mission of Spain to the U.N., p.37.

[71] Spain ratified the European Convention on Human Rights on 4 October 1979.

[72] See for example, de Jong, Baljet and van den Brink v. The Netherlands (8805/79) [1984] ECHR 5 (22 May 1984); Brogan and others v. U.K.(11209/84) [1989] ECHR 9 (30 May 1989). In the first case, the court ruled that The Netherlands had violated the provisions of Article 5(3) with respect to de Jong, Baljet and van den Brink, who were detained for seven, eleven, and six days, respectively, without being brought before a judge or judicial officer. In the case of Brogan and others v. U.K., the Court found that Article 5(3) had been violated in the case of four individuals held in police custody for periods ranging from four days and eleven hours to six days and sixteen and a half hours without being brought before a judge.

[73] Brogan v. U.K., para. 59.

[74] Ibid. paras. 61-62.

[75] LEC, Article 526 (3): “During the detention, the judge may at any time require information and know, personally or through delegation to the examining magistrate…where the detainee is being held, the situation of the same.”

[76] Human Rights Watch interview with Judge Baltasar Garzón, examining magistrate of the Audiencia Nacional, Madrid, October 1, 2004.

[77] Ibid.

[78] See El Mundo’s electronic database on the 11-M arrests at (retrieved October 4, 2004).

[79] Report to the Spanish government on the visit to Spain carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 22 to 26 July 2001. CPT/inf (2003) 22, para. 24.

[80] The Human Rights Committee held that the provision of the UK’s Terrorism Act 2000 allowing suspects to be detained for 48 hours without access to a lawyer was of “suspect compatibility” with Article 9 and 14 of the ICCPR. CCPR/CO/73/UK, para. 13 (2001); the European Court of Human Rights similarly held that Article 6 of the ECHR applies even in the preliminary stages of a police investigation. In the Imbroscia v. Switzerland judgement (13972/88) [1993] ECHR 56 (24 November 1993), the Court stated that “Certainly the primary purpose of Article 6 as far as criminal matters are concerned is to ensure a fair trial by a ‘tribunal’ competent to determine any criminal charge’, but it does not follow that the Article (Art. 6) has no application to pre-trial proceedings” and that the requirements of Article 6 (3), including the right to legal assistance, “may…be relevant before a case is sent to trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them.”  ECHR, Series A, No. 275, para. 36.

[81] Basic Principles on the Role of Lawyers, adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990), Number 8.

[82] Human Rights Watch interview with Cesáreo Duro Ventura, advisor to the Secretary of State of the Ministry of Justice, Madrid, July 13, 2004.

[83] Conde-Pumpido, Cándido. “Modelo español de la lucha antiterrorista.”

[84] Constitutional Court Sentence 196/87, adopted on December 11, 1987 [online], (retrieved September 12, 2004), extract, para. 8.

[85] Association of Free Lawyers (ALA), [check this title] Report of the Commission Defense of the Defense of the Association of Free Lawyers of Madrid (ALA) in relation to the “Response of the Spanish government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment (C.P.T)” on the visit to Spain undertaken 22 to 26 July, 2001, p.6. Human Rights Watch translation.

[86] Human Rights Watch interview with 11-M defendant X, Madrid, July 13, 2004.

[87] Human Rights Watch interviews with 11-M defendants Y and Z, Madrid, June 23, 2004.

[88] Human Rights Watch interview with girlfriend of 11-M defendant, Madrid, June 4, 2004.

[89] Human Rights Watch interview with Ministry of Justice officials, Madrid, July 13, 2004.

[90] CPT report on Spain, para.12.

[91] LEC, Articles 520 and 527.

[92] U.N. Human Rights Committee, General Comment No. 20, paragraph 67.

[93] CPT report on Spain, para. 15.

[94] Human Rights Watch interview with Cándido Conde-Pumpido, Madrid, July 12, 2004.

[95] Human Rights Watch interview with legal aid attorney E, Madrid, June 24, 2004.

[96] Human Rights Watch interview with legal aid attorney F, Madrid, July 13, 2004.

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

[98] Human Rights Watch sought an interview with Judge Del Olmo while carrying out this research. Our request for an interview was refused by an official in the Central Court of Instruction No. 6 on the ground that it would be inappropriate for the judge to comment on any ongoing investigations with which he was involved.

[99] CPT report on Spain, para. 22.

[100] United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment. Adopted by General Assembly resolution 43/173 of December 9, 1988, Principle 14.

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

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