Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) enshrines an essential value of democratic societies: the right not to be subjected to torture or to inhuman or degrading treatment or punishment. International law establishes an absolute prohibition of torture, in other words, it does not admit any exception, not even in situations of emergency or political instability, not even in the fight against terrorism or organized crimes. Any measure adopted in the name of security that represents in practice a threat to human rights runs against the international obligations of the states.

Spain's ECHR violations

The European Court of Human Rights (ECtHR) has found Spain guilty of violating Article 3 of the ECHR in two new cases, Etxebarría Caballero and Ataun Rojo. Both applicants had alleged the lack of an effective investigation by the national courts in relation with their torture and ill-treatment allegations while they were held incommunicado in police custody. In both cases, the ECtHR concluded that the investigations carried out by the Spanish judicial bodies had not been in-depth and effective enough and, thus, did not met the requirements of Article 3 of the ECHR.

The applicants had asked the domestic judges to carry our different inquiries; among other things, that the security camera recordings from the premises in which they had been detained be submitted to the courts, that the police officers who had been involved in their police custody be identified and questioned, and to undergo in-depth physical and psychological examinations. However, the investigating courts ordered the discontinuance of the cases, basing their decision only in the reports prepared by the forensic doctors during their police custody and the statements made by the applicants, and denying to carry out the rest of the inquiries requested.

No communication with the outside world

In the case of Etxebarría Caballero, the investigating judge concluded that there were no evidences of mistreatment and did not justify the reason of the denial of the rest of the inquiries requested by the applicant. In the case of Ataun Rojo, the investigating judge affirmed that, as there was no evidences that a crime had been committed, the identification and questioning of the police officers would have been useless and would only enabled the exposition of the identity of those people involved in the fight against terrorism.

The ECtHR affirms that the applicants were in a situation of isolation, and could not communicate with the outside world, and that in this context judicial authorities must undertake greater efforts. Therefore, if courts had examined the evidences requested, they could have contributed to clarifying the facts alleged.

This is the fifth time that the ECtHR has concluded that Spain has violated the ECHR for not investigating in-depth and effectively alleged tortures. In the cases Martínez Sala (2004), San Argimiro Isasa (2010), Beristain Ukar (2011) and Otamendi Egiguren (2012), all of them cases occurred during an incommunicado detention, the ECtHR concluded that, the mere examination of forensic reports by the Spanish courts, without a proper examination of the rest of the evidences and without carrying out other in-depth, effective and reasonable inquiries in order to obtain evidences, was not enough to meet the requirement of Article 3 of the ECHR.

Spain ignores CPT

In all these judgments, the ECtHR has insisted in the importance of adopting the measures recommended by the European Committee for the Prevention of Torture (CPT) to prevent people held in incommunicado detention from possible abuses, as the situation of vulnerability of incommunicado detainees calls for an appropriate application of judicial control measures.

One of the key recommendations of the CPT is that the individuals held in incommunicado detention are systematically brought before the judge prior to the decision to extend the detention. The CPT has noted several times that this is not respected in practice in Spain. As established by CPT, judicial scrutiny cannot be substituted by anything, and this is why it has recommended repeatedly the judges to adopt a more proactive attitude with regards to the oversight powers attributed by the Criminal Procedural Code.

• However, in these last two judgments, the ECtHR has taken a step further, undermining the legality of the incommunicado detention regime itself. In paragraph 48 of the Etxebarría judgment and 38 of the Ataun judgment, it affirms: “The Court agrees with the CPT recommendations, reproduced by the Commissioner for Human Rights of the Council of Europe, in his report of October 9, 2013 (…), regarding both the safeguards that must be ensured in such a situation and the mere possibility of holding an individual incommunicado” (unofficial translation). The first of these above-mentioned recommendations by the CPT is the abolition of the regime of incommunicado detention, given that, by its very nature, this regime results in a risk of abuses and human rights violations (see paragraph 102 of the Commissioner Report, mentioned in paragraphs 32 of the Etxebarria judgment and 27 of the Ataun judgment). The rest of the recommendations issued by the CPT and the Commissioner are related to the indispensable guarantees of the incommunicado detention regime, in order to, precisely, minimize the risk of human rights violations of the detainees: the effective and rapid access to a lawyer of their choice, and the possibility of being assisted by a doctor of their choice.

Our organization, Rights International Spain, shares the concerns of the international human rights mechanisms with regards to the existence of the incommunicado detention regime, given the lack of effective safeguards against torture in our legal system. The only path to the protection of security is the unconditional defense of everybody’s human rights.

Article written by Lydia Vicente and Patricia Goicoechea, executive director and deputy director, respectively, of Rights International Spain. It was originally published in the Blog “Al Revés y Al Derecho."