European Court of Human Rights Calls on Spain to Strengthen Safeguards against Torture

NEW YORK, October 8—The European Court of Human Rights has called on Spain to introduce safeguards that protect people in police detention or custody from torture and ill-treatment.

In its decision on Etxebarria Caballero v. Spain, delivered on October 7, the court also ruled that Spain violated Article 3 of the European Convention on Human Rights (the prohibition against torture) for its failure to investigate arguable complaints of ill-treatment by the two applicants in the case.

The violation arose due to Spain’s failure to conduct an effective investigation through the use of proper medical examinations, and due to a lack of sufficient judicial scrutiny.

The case was brought by two individuals who had been detained incommunicado on suspicion of involvement in terrorism in support of Basque separatism. The ruling augments the court’s jurisprudence that human rights cannot be skirted in the name of countering terrorism.

The ruling is particularly important for the emphasis placed on the obligations states have to protect suspects in police stations from torture and ill-treatment. While the court has criticized Spain’s incommunicado detention regime in the past, this new ruling recognized that people in the state’s custody are particularly vulnerable to abuse and therefore require precise and stringent safeguards.

Marion Isobel, a legal officer at the Justice Initiative, said, “The ruling begins to fill an important gap in the Court’s jurisprudence on what precisely states need to do ensure people in their custody are safe from torture.”

She added: “The court has long acknowledged that people in the custody of the police are particularly vulnerable and indeed, most acts of torture occur in the first hours or days of police detention. So this is not only a victory for human rights in Spain. The ruling is applicable to all states in Europe, many of whom still deny crucial safeguards to people in police custody.”

In its ruling, the Court said that it agreed with the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the Open Society Justice Initiative’s observations in a third party intervention concerning the safeguards needed in a case such as this one.

In Spain, a person can be held for up to 13 days in incommunicado detention, and during this time they are denied basic procedural defence rights. They are not allowed to have the fact and place of their detention notified to a person of their choice, or to communicate with their families or the outside world. They cannot choose their own lawyer and cannot meet in private or communicate confidentially with their state-appointed lawyer at any time. And they cannot request to be seen by an independent doctor.

The Justice Initiative’s third party intervention stated that certain fundamental defence rights—the right to access effective legal assistance, independent and competent medical assistance, and outside communication—are part of a framework of laws that states are required to implement in order to prevent torture and ill-treatment under Article 3 of the convention.

The court’s endorsement of these views of the CPT is consistent with a 2013 European Union directive (2013/48/EU) which guarantees detainees access to confidential legal assistance in private and without undue delay at the first stages of questioning; and the right of a detainee to have at least one person notified of the detention without undue delay. (European Union countries have until 27 November 2016 to implement the directive.)