Judicial activity suspended but police still making arrests

The current health emergency and subsequent declaration of the state of alarm have led to most judicial activity being suspended. However, with regard to criminal jurisdiction, the Royal Decree 463/2020 of March 14, states that "the suspension and interruption shall not apply in habeas corpus proceedings, proceedings regarding duty services or with detainees," (second section of the 2º Additional Provision).

And, indeed, arrests don't seem to have stopped. National Police arrested 1,540 people between March 14 and April 8 for alleged breaches of confinement measures.

We must not forget that the rights of detained persons, recognized in article 520 of the Criminal Procedure Act (hereinafter "LECrim"), are still in force and cannot be restricted as a result of the state of alarm. Even if the current circumstances clearly entail practical difficulties for police and prosecutors, this exceptional situation cannot imply the easing of procedural requirements. Although certain adaptations can be made, they must always guarantee the rights of people in custody, as well as the protection of their health.

Provided that officers take appropriate precautions and maintain physical distancing, nothing in the present circumstances prevents them from properly informing detainees of their rights and the reasons for their detention clearly and in detail. Similarly, if the detainee requests so, the detention must be communicated to a third party and the detainee must be allowed to make the communication directly, as there is no reason to hinder the exercise of this right. In addition, if the detainee requests the assistance of an interpreter, it must also be guaranteed. In this case, it may be appropriate to provide it by telephone or video conference, provided that the use of alternative technologies to physical presence does not undermine the effectiveness of the interpretation. The same applies to consular assistance, should the detainee request it.

Medical examinations must continue

With regard to the right of all detainees to be examined by a doctor, on March 20 the Medical Forensic Council issued a series of recommendations which state that helping detainees is an essential forensic service that must continue to be provided during the state of alarm. Evidently, the right not to be subjected to torture, inhuman or degrading treatment -which does not admit limitations under any circumstances, regardless of any exceptionality- remains fully in force, and includes the right to be examined by a doctor.

Since the confinement measures were brought in, several videos have circulated showing law enforcement officers from various law enforcement agencies arresting people and applying a disproportionate use of force. It must not be forgotten that slapping detainees is considered degrading treatment and is punishable, as ruled by the Grand Chamber of the European Court of Human Rights in its judgement of the case Bouyid v. Belgium from 2015. In such circumstances, lawyers must be particularly vigilant with regard to the effective exercise of the right to be examined by a doctor.

Lawyers must be allowed to provide legal help

Finally, the right to legal assistance in police stations cannot be restricted or hindered in any way. This is a guarantee of the right to freedom and serves the purpose "of ensuring, with its personal presence, that the constitutional rights of the detainee are respected, that he/she is not subjected to coercion or treatment incompatible with his/her dignity and freedom to declare, and that he/she has access to appropriate advice" (STC 21/1997). This dual function of guaranteeing the respect of all the rights of the detainee and providing legal assistance must be effectively fulfilled, even in the exceptional circumstances resulting from the Covid-19 pandemic.

In order to reduce personal contact between detainees and professionals, several Bar Associations have recommended that, whenever possible, legal assistance is provided by telephone or video conference. This option has also been endorsed by some Regional High Courts of Justice (Note from the Covid-19 Executive Monitoring Commission of the Madrid Supreme Court of Justice). Lawyers, and especially those who are on duty service, must carefully analyze and balance their obligations with protecting their health, that of their client, and that of law enforcement officers, before opting to use remote assistance.

This implies, in the first place, ensuring access to documents and information that are essential for determining the legality of the detention. These should be sent to the on duty lawyer by e-mail or in any other way that allows their correct and complete receipt. In the present circumstances this is particularly important, taking into account that in the case of arrests related to confinement measures, police reports are being processed as alleged crimes of resistance and disobedience (article 556.1 of the Criminal Code). It is essential that lawyers are able to familiarise themselves with the circumstances in which the arrest took place and of all the specific facts, in order to be able to determine whether the arrest is lawful. Otherwise it could constitute a minor offence (art. 556.2 of the Criminal Code) or behaviour that does not constitute a crime but an administrative offence.

Secondly, the confidential interview must be guaranteed. Lawyers must always be able to assess whether the mode of communication offered by the police guarantees the confidentiality of the conversation, whether it is possible to adequately verify the identity of the person with whom they are speaking and whether, in telephone or video conference, they can establish the necessary relationship of trust with their client.

The exceptional nature of the current situation cannot lead to erosion of the requirements of respect and protection of the rights of detainees, neither in police stations nor in the courts. We must also bear in mind that there will presumably still be certain exceptions when the gradual ease of confinement begins. The virus is not going to disappear because a Royal Decree is issued. Neither will the risk of contagion. We will therefore still have to live for a while applying individual protection measures and with the need to find a careful balance between carrying out our obligations in the right way and protecting of our health and that of our clients.

This article was originally published by Abogacía Española