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
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