The protection of detainees in Spain in the light of the CPT’s Report on visit carried out from 22 to 26 July 2003

The report on the visit to Spain carried out by the CPT from 22 to 26 July was published on March 2003[1].

         The visit was one which appeared to the Committee “to be required in the circumstances” (art. 7, par. 1, of the Convention). In its decision to carry out the visit, the CPT took into account several factors.

First of all, the Spanish authorities have not implemented the Committee’s recommendations regarding the reinforcement of three rights which should be offered to persons detained by law enforcement officials a from the very outset of custody: the right of access to a lawyer, the right to those concerned to have the fact of their detention notified to a close relative or third party of their choice, and the right to medical examination by a doctor of their choice.

         The other factor concerns the persistence of allegations of ill-treatment by law enforcement officials.

 Access to a lawyer

As regards this aspect, the CPT has found that many detained persons could, and as attested by the persons interviewed by the delegation in the course of the 2001 visit, spend some considerable time in police custody before having to a lawyer.

On this point, the Spanish authorities, in its response to the CPT’s Report have been reiterating that the current regulations are adapted to the constitutional order. “The specific system of partial and temporary suspension of the right of assistance by a lawyer considered reliable by the detainee is covered by article 55.2 of the Spanish Constitution. This specific system is regulated by the Criminal Law Procedure through which the imposition of a lawyer is revealed as one more measure established by the legislator, within his regulatory power, to strengthen the secrecy of the criminal investigations. This leads the Spanish Government to be convinced that the Spanish legislation as regards legal assistance, such as has been ruled by the Constitutional Court, is adapted to the Constitution, not being considered opportune its modification, keeping in mind, also that the referred restrictive measure doesn't suppose lack of defence for the detainee who has his defence assured through the guarantees contained in said system”[2].

Access to a doctor

It has founded that in many cases, access to a doctor remained limited to the examinations carried out by forensic doctors or doctors appointed by the court to perform forensic functions.

Notification of custody

The Committee has noted that pursuant to the legal provisions in force, certain persons detained could be denied the right to notify their detention and the place in which they were being held to a relative or other person of their choice for up to five days.

In the light of the information gathered during the visit, the CPT has disapproved of the stance adopted by the Spanish authorities in respect of the three fundamental safeguards above mentioned, particularly in view of the clear undertaking to take action upon the Committee’s recommendations given three years ago. The Committee has noted that the existing legal framework fails to provide an effective set of safeguards against ill-treatment for persons deprived of their liberty by the law enforcement agencies. In its recommendations, the CPT calls upon the Spanish authorities to take concrete action in order to ensure that:

1.     all person deprived of their liberty to be granted, a fully right of access to a lawyer;

2.     the period of time for which persons detained by the law enforcement agencies may be denied the right to have the fact of their detention and the place in which they are being held made down to a relative or other person of  their choice to be shortened to a maximum of 48 hours[3]

3.     person held incommunicado to be guaranteed the right to be examined by a doctor of their choice, it being understood that such a second examination may take place in the presence of a state-appointed forensic doctor.

In connection with this last recommendation, the Spanish Government reiterates that “the exceptional cases in which the detained incommunicado is deprived of the right to be examined by a doctor of his choice, are perfectly covered by a regulation based on the Constitution itself and that has been repeatedly declared adapted therein by the Constitutional Court. Such a restriction finds its justification on the protection of the mentioned privileges of articles 10.1 and 104.1 of the Constitution: defence of the social order and safety of the citizens, and in attention to it, the Spanish authorities do not consider convenient the modification of the regulations on this regard”.

Ill-treatment of persons by law enforcement officials

In the course of the visit, the CPT’s delegation interviewed a number of persons detained in recent months by National Police and the Civil Guard on suspicion of terrorist-related offences.

Their allegations included blow to various parts of the body. The latter included allegations of asphyxiation by placing a plastic bag over the head, as regards the persons detained by the Civil Guard, electric shock.

The delegation gathered ample evidence, including of a medical nature, of such ill-treatments. 

Having regard to the preventive nature of its mandate, the CPT focused, in its report, on whether the Spanish authorities have established effective safeguards against ill-treatment and accountability mechanisms for cases involving allegations of such treatment.

In the CPT’s opinion, “one of the most effective means of preventing ill-treatment by law enforcement officials lies in the diligent examination by the competent authorities of all complaints of such tretment brought before theme and, where evidence of wrongdoing emerges, the imposition of appropriate disciplinary and or criminal penalties. This will have a very strong deterrent effect. Further, the examination of complaints must be conducted by a body which is independent and impartial. The CPT has noted that the Spanish law provides that every complaint may involve the commission of a criminal offence by law enforcement officials must be examined by a court or a judge”.

Nevertheless, allegations which ultimately lead to criminal charges may initially be investigated through internal accountability channels; this will also involving assessing whether or not the matter needs to be brought to the attention of the competent court. It also lies with the internal accountability mechanisms to re-examine the need for disciplinary action against law enforcement officials in the light of the outcome of criminal proceedings.

From information gathered the CPT, in its report, stresses that the investigation of complaints by internal accountability mechanisms of the National Police and the Civil Guard cannot be said to be independent and impartial. Further, current arrangements are capable of generating conflicts of interest which officers instructed to process complaints may find difficult to resolve.

For this reason and other factors analysed in its report, the Committee conclude the contribution of National Police and Civil guard internal accountability mechanism to the prevention of ill-treatment of persons detained by those agencies is at best limited.

Indeed, the Committee recommended that consideration be given to creating a fully independent investigating agency to process complaints against law enforcement officials; such a body should have the power to instigate disciplinary proceedings against law enforcement officials and to refer cases to the judicial authorities which are competent to consider whether criminal proceedings should be brought.