E/CN.4/2004/56/Add.2 page 12 36. According to information received during this meeting, under the normative framework in force prior to the adoption of the Organic Law 13/2003, a judge could decide that the period of pre-trial detention would be incommunicado for a length of time that was not clearly defined and, thus, pre-trial incommunicado detention could be for an undetermined period of time. The authorities argued that the new regime would bring Spanish legislation more into conformity with international human rights standards vis-à-vis incommunicado detention by placing strict and well-defined time limits on the length of time an individual could be held incommunicado in pre-trial detention. It was underlined that prolonging the incommunicado detention in prison for a five-day period following a five-day period of incommunicado in police custody would have to be justified by compelling evidence, the judge would have to take a decision by written order, this order would have to be notified to the prosecutor as well as to the defence, and the decision could be appealed to a superior court. The Special Rapporteur was also informed that in cases of incommunicado detention, the detainee would retain all constitutional rights except in two respects: the lawyer would not be of his/her own choice but assigned, and the detainee would not have the right to a doctor of his/her choice. However, in the then pending bill, which became Organic Law 15/2003, a detainee held incommunicado in prisión provisional would have the right to be examined by a second forensic doctor. It was underlined that, despite the previous legal regime allowing for undetermined periods of pre-trial detention in prison, those legal provisions were very rarely used and thus, they argued, there were no reasons to believe that the revised regime would be used routinely or proactively. Finally, it was stressed repeatedly that the maximum period a person could be held in incommunicado detention was 10 consecutive days (5 in police custody and 5 in prison in pre-trial detention). 37. When asked about guarantees for detainees held in incommunicado detention, the President of the Audiencia Nacional explained that an investigating judge was informed as soon as a person was detained. If the person was detained in another region, the judge might delegate supervision to a local judge or, in some cases, judges would travel to the region to supervise the case. He explained that incommunicado detention was not intended to deprive a detainee of his/her rights, but to prevent any information from leaking out. He emphasized that there were more guarantees for persons detained under terrorist charges in incommunicado detention than in other parts of the system. He said that the system provided the legal framework for the prompt investigation of torture. Forensic doctors regularly visited the detainees and reported any injuries to the investigating judge. He agreed that audio-visual recording would be useful to monitor the treatment of detainees and could be useful in refuting false allegations of torture. The Special Rapporteur was informed that there was a strict regime applied to judges who failed to fulfil their duties. 38. According to the authorities, requests to extend incommunicado detention must be substantiated by the competent judge. However, according to non-governmental sources, such substantiation is usually based simply on a reference to an individual’s suspected links with terrorism - traditionally with ETA. There is reportedly no further presentation of evidence and the request is usually granted automatically. Judges may at all times request information on and ascertain the detainee’s situation personally or by delegating this responsibility to the investigating judge of the district in which the detainee is being held. However, this is left to the judge’s discretion, and according to information received, in practice judges rarely exercise their right to obtain information personally. In this context, the Special Rapporteur shares the concerns expressed by CPT that “persons held incommunicado whose period of detention is extended beyond 72 hours up to a maximum of five days are still not seen by a judge prior to the