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Limitations on Challenging the Lawfulness of the Detention

International Law and Standards

The right to challenge the lawfulness of one’s arrest is a fundamental right enshrined in Article 9(4) of the ICCPR: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”  Article 5(4) of the ECHR establishes the same rights, as does Principle 32 of the Body of Principles on Detention. The Human Rights Committee has stated that this right is non-derogable even under states of emergency.¹⁰²

According to the jurisprudence of the European Court of Human Rights, the review of the lawfulness of a detention must have bearing on both “the procedural and substantive conditions” of the deprivation of liberty. In other words, a detained person should have “available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements…but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and ensuing detention.”¹⁰³  

Spanish Law

In Spain, as in many countries, this right can be exercised by filing a writ of habeas corpus through a simple, expedited procedure that allows the detainee, his or her lawyer, or a third party to demand that the detainee be brought as quickly as reasonably possible before a judge to determine the lawfulness of the detention. Organic Law 6/1984, Regulation of the Procedure for Habeas Corpus, states in the exposition of motives that the law covers not only illegal detentions, but also “detentions which, having been originally legal, are maintained or prolonged illegally or take place under illegal conditions.”  Article 1 of the law defines illegally detained persons as: 1) those who were detained by an authority, an agent of the same, a public official or a private individual, without a legal basis, or without compliance with the formalities and requisites established by law; 2) those who are illegally interned in any establishment or place; 3) those who were detained for a period longer than that established by law if, upon completion of the same, they were not released or delivered to the closest judge to the place of detention; and 4) those deprived of their liberty whose rights established in the Constitution and Procedural laws have not been respected.

The detainee, his or her spouse or companion, relatives, and, in the case of minors and incapacitated persons, their legal guardians; the Public Prosecutor; the Defensor del Pueblo; and the competent instructing judge on his own initiative may all file a writ of habeas corpus.¹⁰⁴ The examining magistrate of the district where the detainee is being held is competent to review the petition, except in cases of detention of suspected members of armed groups or terrorists, whose writs of habeas corpus must be reviewed by the Central Instructing Judge, in other words, the same examining magistrate of the Audiencia Nacional who may have ordered the detention in the first place.¹⁰⁵ By contrast, appeals against orders remanding a detainee into pre-trial detention issued by Audiencia Nacional magistrates are reviewed in the first instance by the same examining magistrate but in the second instance by a panel of three judges.   

Analysis of Concerns

While the letter of the habeas corpus law in Spain appears to be in conformity with international standards, the interpretation of the law among legal professionals is so narrow as to render it effectively meaningless. In conversations with Human Rights Watch, the attorney general and high-level representatives of the Ministry of Justice argued that habeas corpus was irrelevant in cases of incommunicado detention because this is a situation in which the arrest and period of detention are under judicial supervision and therefore a priori legal. The criminal defense lawyers consulted similarly stated that they did not consider filing a writ of habeas corpus on behalf of their clients because the detention had been ordered and supervised by a competent judge. One of the 11-M legal aid attorneys said, “Habeas corpus is hardly ever used in Spain. It’s absurd…it only serves to place [the detainee] at the disposal of the judge, and in this case it didn’t make sense, all of the time frames were respected.”¹⁰⁶

Human Rights Watch is particularly concerned that the Ombuds Institution (Defensor del Pueblo), though empowered by law to file writs of habeas corpus, does not see it as a useful or even appropriate tool. María Luisa Cava de Llano, First Adjunct of the Defensor del Pueblo, explained that “it is not common because illegal detentions don’t happen. In the last four years, we have not submitted any nor have we been asked to do so.” When asked if they ever ex officio go to places of detention to verify the conditions or situation of an incommunicado detainee, she said, “It is not our job to disrupt the work of the National Police; in principal we have no reason to believe that a person in incommunicado detention will be mistreated. Our national police and civil guard enjoy prestige among the public and their work is good until it is proven otherwise. Our assumption is that there will not be problems.”¹⁰⁷

Even if there were a broader interpretation of the law and a greater willingness to use this legal tool, there are several practical impediments to incommunicado detainees enjoying the right to habeas corpus. First, they are not informed of this right.¹⁰⁸ The right to challenge the lawfulness of the detention through a writ of habeas corpus is not among the rights that police are obligated to read to detainees at the time of arrest and before the official statement is recorded. It is a fair assumption that many detainees are not aware of this right or of the procedure for exercising it, particularly given that lawyers appear not to regard it as an important right.

Second, the fact that incommunicado detainees do not have the right to notify a person of their choice about the arrest or the place of detention clearly undermines the ability of third parties to file a writ of habeas corpus on their behalf. The CPT, while recognizing that it may be necessary in exceptional cases to deny notification of a third party for brief period of time, has stated that “to deny for up to five days the exercise of [this] right…is not justifiable.” The CPT takes the position that “a period of a maximum of 48 hours would strike a better balance between the requirements of investigations and the interests of detained persons.”¹⁰⁹

Finally, as detailed above, in most cases the detainee does not see a lawyer until the legally permissible period of incommunicado detention in police custody is almost over. Given that it is the lawyer who is in the best position to counsel the detainee about his various options, including that of filing a writ of habeas corpus, this delay has a direct impact on the detainee’s ability to exercise this fundamental right. The European Court of Human Rights has held that “where a detained person has to wait for a period to challenge the lawfulness of his custody, there may be a breach of Article 5(4).” The Court considered that a period of seven days “sits ill with the notion of ‘speedily’” under that article.¹¹⁰ The Human Rights Committee concluded that Article 9(4) of the ICCPR had been breached in a case where the applicant had the theoretical right to file a writ of habeas corpus but had been denied access to counsel throughout his detention.¹¹¹