Medium-term Deprivation of Liberty
Now it is appropriate to mention the recent Decision of the Spanish Constitutional
Court (abbreviated as STC in Spanish) 17/2013, of 31 January, in which the high
court considers, in it legal basis no. 14, that “as regards the purpose of the search
itself, it is beyond question that a measure such as the one established in the con
tested precept may constitute, in certain situations, a means necessary for the pro
tection of safety in a detention center, thus ensuring an orderly cohabitation there
in. (...) upon adoption of such measure, it is necessary to weigh, in an adequate and
balanced manner, on the one hand, the seriousness of the interference it entails for
personal privacy, and on the other hand, if such measure is indispensable to ensure
the defense of public interest, expressed in the maintenance of public order and
safety of the center, which it strives to protect. It is naturally well understood that
the respect of this requirement needs substantiation if the measure by the Admin
istration, given that only such substantiation will allow it to be valued by the concerned person, in the first place, taking into account the right of inmates, according
to Art. 62 quáter of the Organic Law on Foreign Nationals, to submit complaints
and claims or to have the assistance of their lawyer [Art. 62 bis.f) of the Organic
Law on Foreign Nationals] and, as the case may be, of the judicial body in charge of
controlling the admission measure decided by such body, so that it may assess the
reason which may justify, in view of the circumstances of the case, the sacrifice of
the fundamental right (Art. 62.6 of the Organic Law on Foreign Nationals)”.
In certain situations, the
51. As regards the means of restraint, either physical personal restraint or the
measure for temporary separation (isolation), referred to in paragraph 49 and which
was the subject of complaint by inmates, the aforementioned Decision of the Span
ish Constitutional Court establishes, in its legal basis no. 15, the following: “Its adop
tion is only justified in specific scenarios, legally defined as regards certain behaviors
of inmates which the Administration must prevent or avoid, since undoubtedly the
safety and correct order of the establishment would be affected in case of there being
an escape, violence towards persons, damages of things or disobedience towards the
staff. (...) the adoption of these measures is both limited by its exclusive purpose,
which is the reestablishment of normalcy at the center, and their limited duration,
since they may only subsist for the time strictly necessary for the elimination of the
circumstance that gave rise to it, which must be ultimately assessed by the judge”.
The use of means of
52. As was already referred to in paragraph 93 of the 2011 Annual Report, the
medical assistance at the different CIEs was outsourced by means of a contract
with the company SERMEDES, up to the 16th of August 2012 and, since that
date, it had been awarded by public tender to the company CLÍNICA MADRID.
The three multidisciplinary visits were conducted when the first of them was pro
viding services therein. Therefore the Ombudsman Institution was able to assess
if the protocols were the same at the three centers and if the shortcomings identi
fied in the first and second visits were being remedied.
The medical assistance
53. At the CIEs visited there was no medical assistance in afternoon or evening
hours. The same could be said of the absence of a University Registered Nurse (ab
breviated as DUE in Spanish) in the evening. As was already referred to in para
graph 93 of the 2011 Annual Report, this absence may compromise the right of
It has been requested that
THE OMBUDSMAN OF SPAIN
search is justified. It must be
evaluated, in an adequate
and balanced manner, on
the one hand, the
seriousness of the
interference it entails for
personal privacy, and on
the other hand, if the
measure is indispensable to
ensure defense of public
interest
restraint is only justified in
specific and legally defined
scenarios
service is outsourced
medical assistance is
provided on a permanent
basis
69
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