CCPR/C/125/D/2657/2015 6.9 The State party concludes that the alleged events would constitute a violation of article 7, read in conjunction with article 2 (3) of the Covenant. It points out that the events were investigated promptly, thoroughly and impartially (noting that, on that same day, 11 December 2007, the judge immediately ordered that a new forensic report be prepared) and that the author’s description of the events is not at all consistent and is more of a catalogue of all the possible acts of torture to which a person in incommunicado detention might be subjected. The State party is of the opinion that the communication is overly detailed (stereotypical) and contradictory inasmuch as it states that the author was hooded or blindfolded most of the time and yet he provides an exhaustive description of the methods and instruments that he claims were used, which would be impossible if he could not see. The State party adds that the private medical report submitted by the author does not rise to the standard required by the Committee for the refutation of forensic medical reports based on an actual examination of the author. 16 6.10 Taking into account that incommunicado detention is always executed under judicial oversight, that incommunicado detainees are seen by a doctor daily and that the author’s complaint is a habitual practice of the members of the terrorist group ETA, the State party argues that there is no indication of any violation of the Covenant. 6.11 Regarding incommunicado detention, the State party notes that the Criminal Procedure Act provides for persons to be held in police custody until they are brought before a judge. However, it has been proven that the most dangerous organized crime syndicates and terrorist organizations frequently order members who have recently been arrested to take advantage of any direct contact with other people (relatives or other trusted persons, doctors or lawyers of their choice) while in custody to transmit information and receive orders. Thus, it was in response to the abuse of procedural rights that it made provision for incommunicado detention under articles 509, 510, 520 bis and 527 of the Criminal Procedure Act subject to six main requirements. First, its application requires prior judicial authorization. Second, it can be applied only where there is a risk that the evidence of the commission of unlawful acts might be altered or that further unlawful acts might be committed or abetted. Third, it is applied only to persons arrested on suspicion of offences committed by organized crime syndicates or terrorist or insurgent organizations. Fourth, it is subject to a maximum period of 72 hours, which can be extended for up to 48 additional hours (a total of 5 days). Authorization to extend must be requested of a judge within the first 48 hours and, if granted, must be substantiated by a reasoned decision within the next 24 hours. Fifth, since it is an exception to the general rule, incommunicado detention must be proportional to the “ends sought” in each case. Lastly, the procedural safeguards that apply to persons held incommunicado differ from the ordinary detention regime: a lawyer is appointed by the bar association rather than chosen by the detainee; the designated lawyer cannot interview the detainee in private; 17 and the detainee does not have the right to have a relative or person of his or her choice informed of the arrest and place of detention. In this regard, the State party submits that the detention was incommunicado only with regard to the detainee’s relatives or friends, since this type of detention is under constant judicial oversight. 6.12 The State party also notes that there are additional safeguards in place with regard to the medical examination, namely that detainees have the right to be examined by a second forensic doctor, who can, as recognized by the courts, be a doctor they trust, provided that the examination is conducted concurrently with the one performed by the first doctor. 6.13 Lastly, the State party submits that, following this case, the provisions on incommunicado detention were amended by Organic Act No. 13/2015 of 5 October 2015. 18 16 17 18 8 The State party does not substantiate this statement. The State party specifies that, as underlined by the Council of Europe Commissioner for Human Rights, as a measure to ensure the effectiveness of an investigation, this does not infringe the core of the right to legal counsel, since it is not the authorities who appoint the lawyer but, rather, the bar association, and only lawyers specialized in criminal law who have at least 10 years’ professional experience can be named by the bar association as designated lawyers. The Act transposes Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest GE.19-13559