Responses to the CAT List of Issues for the Fifth Periodic Report from Spain (CAT/C/ESP/5)

Article 2

1.  Please give a detailed explanation of the proposed measures to improve the system of safeguards in place to prevent mistreatment during police custody, and in particular, indicate whether:

a) Measures have been adopted to avoid delays in gaining access to an attorney.

1. The Spanish legal system guarantees a detainee quick and effective access to an attorney (Article 17.3 of the Constitution and Article 520 of the Criminal Procedure Act). As soon as the police officer arrests an individual, he/she is required to request the presence of an attorney either selected by the detainee or by the Bar Association, which will appoint one from its roster. If the police officer fails in this duty, he/she may be subject to criminal and disciplinary sanctions.

2. In addition, before the attorney appears at the police station, the detainee cannot be questioned, nor can any proceedings be conducted during this period, as established by law. In addition, the detainee is informed that he/she has the right to remain silent and the right to a medical examination from the time of his arrest.

3. The recently approved Instruction No. 12/2007 issued by the Secretariat of State for Security concerning Conduct Required of the Members of the State Security Forces to Guarantee the Rights of Persons Detained or in Police Custody, reinforces these rights in the following terms:

4. Special efforts will be made to guarantee that the right to legal counsel is rendered in accordance with the stipulations of the legal system, making use of available means to allow an attorney's presence within the shortest time period possible.

5. To this end, the request for legal counsel will be transmitted immediately to an attorney appointed by the detainee, or failing that, to the Bar Association, reiterating the aforementioned request, if three hours have passed after the first instance of communication and the lawyer has not yet appeared.

6. Phone calls made to the attorney or Bar Association shall always be noted in the telephone records, as well as any incident that may have resulted from the calls (unable to establish connection, no response, etc).

7. Independently of the above, it should be pointed out that the Human Rights Plan approved by the Spanish Government stipulates the following measure:

8. “MEASURE 96.- With regard to the detainee's right to legal counsel. In order to secure the detainee’s rights and to comply with recommendations from international organizations concerning the defense of human rights, especially the European Committee for the Prevention of Torture, the Government proposes to amend Article 520.4 of the Criminal Procedure Act in order to reduce the present maximum duration of eight hours, within which the right to legal counsel must be made effective.”

b) Incommunicado detainees have the right to be examined by a doctor of their choice without a police officer present.

9. With regards to the incommunicado detainee’s right to be examined by a doctor, it should be pointed out that Article 520 of the Criminal Procedure Act stipulates that the detainee has the right to: “be examined by a forensic doctor or their legal substitute or, in the absence of such, by a doctor from the Institution in which they are being held, or by any other state-appointed or Public Administration medical officer.”

10. This provision, applied to all detainees including the incommunicado detainees, aims to guarantee medical care to the detainee at all times and to determine and certify their condition, carried out by a professional who, in addition to his/her role as a medical doctor, also serves as an official authorized to issue opinions and reports that can be given as evidence in legal proceedings.

11. Forensic doctors are medical professionals that provide services to the justice administration system after being selected by competitive examination based on principles of merit and ability, as well as on their technical and legal knowledge. They are officials appointed by the Court through an objective system based, among other aspects, on their professional seniority. Neither the Judge nor governmental authorities can choose which forensic doctor sees a specific detainee; rather, the task is assigned to the doctor previously appointed to that Court.

12. Forensic doctors are fully subject to their medical code of ethics within their professional practices, and therefore cannot receive instructions from a Judge or government authorities, which thus guarantees that the detainee receives the necessary medical care at all times.

13. Independently of the right to be examined by a forensic doctor or their legal substitute, the sixth point of the Instruction No. 12/2007 of the Secretariat of State for Security concerning the Conduct Expected from the Members of the State Security Forces to Guarantee the Rights of Persons Detained or in Police Custody generally stipulates the following for all detainees: “If the detainee presents any type of injury, whether or not attributable to his/her detention, he/she should be transferred immediately to a medical center for observation.”

14. Within the incommunicado detention regime, the restriction to the right provided in Article 523 of the Criminal Procedure Law (the detainee's right to be visited by a religious minister, a doctor, relatives or otherwise interested persons or those that might be able to offer advice) is not intended, under any circumstances, to allow the hiding of the detainee’s potential injuries – as demonstrated by the requirement to transfer him/her to a medical center in such case – but rather responds to the need to avoid the presence, in key moments of the primary investigations, of persons linked to the armed gang that may try to coerce the detainee o control the damage that could he or she could cause to the organization. In some cases, these incommunicado measures are absolutely necessary to ensure the detainee's safety and security.

15. Independently of the above, it should be pointed out that the Human Rights Plan approved by the Spanish Government stipulates the following measure:

16. “MEASURE 97.- With regards to the incommunicado detention regime. In order to ensure the detainee’s rights while subject to this regime, the Government will adopt the following measures (…)

c) Timely measures will be taken in order to guarantee that the detainee, while subject to this incommunicado regime, can be examined by another doctor affiliated with the public health system, freely appointed by the holder of the future National Mechanism for the Prevention of Torture, as well as by a forensic doctor.

d) In an additional effort to increase the detainee’s rights, the forensic doctor will carry out the examination according to instructions set out in a Protocol to be drafted by the Ministry of Justice that will contain the minimum medical checks to be performed on the detainee, as well as the standardized requirements.”

17. With regards to the presence of police officials during the medical examination, it should be pointed out that the police procedures that govern the actions of the members of the State Security Forces in charge of a detainee's custody when he/she receives medical care, are based on absolute respect for his or her dignity, rights and physical integrity, while guaranteeing his or her security:

a) Generally, an effort is made to allow the detainee to receive medical care in a hospital or medical center in compliance with sufficient security precautions, avoiding contact with other patients, which is seen to by hospital security services.

b) In exceptional circumstances, when the previously mentioned situation is not possible and dangerous detainees (those belonging to an armed gang, organized crime groups or who have a criminal record that includes violent crimes) are involved, an attempt is made to maintain control over the detainee at all times, using same-sex personnel to respect his or her privacy, in order to avoid escape, aggression or any other act that could put the detainee‘s, the doctor's or any third party’s physical integrity in danger.

c) Audio-visual recording equipment has been installed in all areas of police stations in which detainees are held.

18. The Spanish Government, in compliance with the stipulations of the Human Rights Plan, is proceeding to equip police facilities with audio-visual recording equipment.

d) There is video surveillance to track the condition and treatment of incommunicado detainees.

19. Currently, Spanish legislation allows the competent Judge to decide whether or not, for each specific case, said surveillance will be beneficial.

20. However, independently of the above, the Human Rights Plan approved by the Spanish Government stipulates the following measure:

“MEASURE 97.- With regards to the incommunicado detention regime. In order to ensure the detainee’s rights while subject to this regime, the Government will adopt the following measures (…)

b) Necessary regulatory and technical measures will be undertaken in order to comply with recommendations from human rights organizations with regards to recording the detainee, using video or other audiovisual equipment, for the whole duration of the incommunicado detention and his or her detainment in the police station.”

e) Statements made by incommunicado detainees can be used during legal proceedings.

21. According to the Spanish legal system, only evidence given in the court oral proceedings, with the presence of the accused and an attorney of his or her choice, may be taken into account for the purpose of deciding a guilty or not-guilty verdict.

22. Likewise, the Spanish legal system establishes that every detainee has the right to not make any self-incriminating statement and to not confess guilt (Article 24.2 of the Constitution and Article 520.2.b of the Criminal Procedure Law), thus prohibiting the Courts from using any evidence obtained using methods of physical or psychological duress that constitutionally threaten the recognized fundamental rights of the individual (Article 15 of the Constitution).

23. In this regard, Article 11.1 of the Organic Law 6/1985, of the Judicial Authority stipulates: “All rules will be respected in good faith in every type of proceeding. Petitions obtained, directly or indirectly, by violating fundamental rights or liberties, shall be of no effect.”

24. The Constitutional Court, in STC (Constitutional Court Judgment) 114/1984, Provisions 2 and 30, states “…although the prohibition against basing judgment upon evidence obtained through the violation of fundamental rights has not been proclaimed in a constitutional rule that explicitly imposes such a prohibition, nor does it arise immediately by virtue of the fundamental right originally affected, it expresses an objective and implicit guarantee in the fundamental system of rights, the legal effect and preferential position of which, in the Rule of Law established by the Constitution, require that any acts that violate such rights lack evidentiary value in the legal proceedings.”

25. Likewise, STC 81/1998, dated 2 April, states that: “attributing procedural value to evidence obtained through violation of fundamental rights implies ignorance with regards to the guarantees inherent in the process (Art. 24.12 of the Spanish Constitution) (STC 114/1984, legal provision 5 and 107/1985, legal provision 2) and by virtue of its contradiction of that fundamental right and, in short, with the notion of due process, it must be considered as prohibited by the Constitution.”

26. This nullity of evidentiary value in the legal proceedings extends to all evidence derived from that which is nullified. The case law of the Supreme Court has upheld the doctrine of indirect effects of the violation of a fundamental right, such that if evidence has been obtained through violation of any fundamental right guaranteed by our Constitution, it will be declared null and will lack evidentiary value in the legal proceedings. In addition, such nullity extends to all evidence that was obtained through a violation of a constitutional guarantee, making all such evidence inadmissible in the legal process (STS 210/1992, 7 February; 2783/1993, 13 December; 311/1994, 19 February and 2054/1994, 26 November).

2. If the system of incommunicado was reformed by Law 13/2003, its mere existence and duration continues to provoke concern considering it can produce circumstances which can faciliatate the commission of acts of torture and maltreatment. Please provide more details on this subjet and inform the Committee on the measure adopted to supervise the treatment and conditions of the detainees in the system of incommunicado.

27. Article 17 of the Spanish Constitution 3 defines the general detention regime in the following terms:

“1. Every person has the right to liberty and security. No one may be deprived of his liberty except in observance of the provisions established in this article and only in the cases and the manners stipulated by law.

2. Preventive detention cannot last longer than that time which is needed to conclude investigations which are necessary to clarify the facts. In every case, the person detained must be either released or placed in custody of the relevant judicial authority within a maximum period of 72 hours.

3. Every person detained must be informed immediately, in a way that is comprehensible to him or her, regarding his or her rights and the reasons for his or her arrest, without being obliged to make any statement. An attorney’s counsel is guaranteed to the detainee during police and judicial proceedings under the terms established by law.

4. The law shall provide for a habeas corpus proceeding so that any person who is illegally detained may be immediately placed in judicial custody. Likewise, the law shall determine the maximum period of provisional imprisonment.”

In accordance with this constitutional mandate, the rights of a person detained in Spain are thoroughly detailed in Article 520 of the Criminal Procedure Act, and include, among others:

• The right to be detained in such a way that causes the least harm to the detainee.

• The right to information regarding the charges made and his or her rights, in particular:

a) To remain silent and make no statements.

b) To make no statement against him or herself and to not confess guilt.

c) To designate a lawyer to attend the proceedings.

d) To notify the person of his/her choosing of his or her detention, as well as where he or she is being held in custody.

e) To have the right to an interpreter, free of charge.