This file is a mirror of EUSKAL HERRIA JOURNAL by Basque Red Net.

Freedom is a right inherent in the individual recognized by the Spanish Constitution of 1978, Article 17 of which establishes that citizens may be deprived of their freedom only in the cases, and according to the methods, prescribed under law. Preventive detention may not last longer than is strictly necessary for the inquiries establishing the facts of the case to be carried out, and may under no circumstances last more than 72 hours. At the end of this period, the person arrested must either be freed or formally charged. The same article guarantees the detainee the presence of a lawyer while police and legal formalities and inquiries are gone through, and also provides for a Habeas Corpus procedure.

The constitutional law regualting the Habeas Corpus procedure is conceived as a way of bringing any illegally arrested person before a magistrate immediately. Illegal detention occurs, among other reasons, when the rights of the persons arrested, guaranteed under the constitution and the law, are not respected. In the case of persons arrested for offenses under Article 384 of the Criminal Prosecution Act, legal proceedings must be overseen by the corresponding central examining magistrate. It seems paradoxical for the same magistrate who authorizes solitary confinement for the person arrested, thus depriving said individual of certain rights that are important for guaranteeing his or her physical or psychic safety, should also be the one to agree to the Habeas Corpus proceeding. No central examining magistrate has yet authorized a proceeding of this kind.

The rights included in the Constitution are developed, as far as procedure is concerned, in the Criminal Prosecution Act (CPA) which, while being an ordinary act, includes certain instructions that constitute genuinely special legislation. Previously, the articles to which we refer where included in the Ley Organica (Constitutional Law) 9/184, of December 26, against the acts of armed bands and terrorists and developing Art. 55.2 of the Constitution, commonly known as the "Antiterrorist Act." The Act implies the existence of special legislation that makes possible the suspension of basic rights, such as those under Art. 17 of the Constitution concerning the length of dentention or Art. 18 of the Constitution concerning the inviolability of the home.

On November 16, 1987, in reply to an appeal against the unconstitutional nature of the act, the Constitutional Court issued Sentence 1999/87 which partly acknowledged the unconstitutional nature of this act.

After the Sentence, the Government was forced to repeal the special act but as it still required legislation of this kind, it was introduced in the ordinary enactment with the necessary reforms to the Penal Code and CPA. As a result, on May 25, 1988 two Constitutional Laws were passed: LO 3/88 reforming the Penal Code and LO 4/88 reforming the CPA.

Today, there is no formal antiterrorist legislation as such, since there is no law or legal regulation in force dedicated exclusively to the matter. However, from the practical point of view, it is clear that there are legal provisions in the ordinary act which, owing to the legislative technique used ("bis" articles or additions in the style of "in cases where...") are applied exclusively to "antiterrorist" matters. It is worth noting that some of the articles incorporated into the ordinary act are literally the same as those included in the "Antiterrorist Act". For instance:

Art. 520 bis of the CPA regulates the duration of a detention. The article talks of 72 hours which can be extended by a further 48 hours maximum, with a magistrate's authorization. All together the time that a person may be detained without being brought before a magistrate is 5 days. We feel that this is too long, and in many cases originates abuses, since it clearly contradicts the right, under Art. 17.3 of the Constitution, of all citizens not to declare. What sense is there in keeping a person in custody? The only reason can be that a change of attitude on the part of the detainee is expected. All in all, what we have is a period of time over which in practice there is scarcely any direct legal control.

Art 520.2 of the CPA describes the rights of any person detained or made prisoner. Everyone in this situation must be immediately and clearly informed of:

• the acts of which the individual is accused and the reasons why he or she has been arrested. In practice, this right is reduced to a brief general summary of the reasons for the detention with no reference to the specific acts of which the detainee is accuseed. In this way, the individual is placed in a highly vulnerable situation, making self-defence very difficult. This leads to inquisitorial-style interrogation.

• of his/hers rights. All the police do is give the person arrested forms with his or her rights printed in exactly the same language as the law itself. No mention is made of Habeas Corpus. Included among these rights are:

a) Right to remain silent or to choose to declare only to the magistrate.

b) Right not to declare against oneself and to not declare oneself guilty.

c) Right to choose own lawyer.

d) Right to inform the family, or any other individual the detainee wishes, of the detention and the place where he or she is held, including when transferred from one place to another.

e) Right to use, free of charge, the services of an interpreter when the detainee does not speak Spanish.

f) Right to be examined by the forensic doctor or a legal substitute.

a) The lawyer will be appointed by the court and may not have a private interview with the detainee. In these cases, the Lawyer is an unknown person, and the individual under arrest does not know for certain if he or she is a professional or a policeman. In any case, the lawyer is of little use as her or she is barred from having a private interview with the person under arrest.

b) The right to inform the family of the arrest and place of custody is withdrawn. This measure leaves relatives, friends and colleagues powerless and also creates uncertainty and fear about what might be happening. The person under arrest is further affected, losing all contact with his or her external affective world, which creates a great deal of anxiety. At the same time, all the information the individual arrested receives during the period of solitary confinement comes from the policemen who have carried out the arrest and are in charge of the interrogation.

We welcome an endorse the concern shown by Amnesty International in its report of April 1993 with regard to Spain when it says: "arrest in solitary confinement for prolonged periods facilitates torture and abuse, which occurs most frequently just after arrest. Consequently Amnesty International considers that Spain must revise the practice of arrest in solitary confinement to reconcile it with the obligation it contracted by virtue of Article II of the Convention against Torture."

Harassment of relatives of the arrested individual by the police

If we analyze the typical arrest we see that from the beginning this is carried out in such a way as to create tension, insecurity and the breakdown of personal defence mechanisms. The arrest is usually made very early in the morning, with a large, very noisy police deployment, with shouts and insults included. This procedure has a tremendous psychological effect on all the members of the family. There have been cases where the arrested person has been hit in the presence of his/her family and the neighbors, and others in which the violence has affected the members of the family, who have then officially reported that they have been subjected to kicks, puches, and psychological abuse such as humiliation, threats and so on.

In those cases where a house-search is also carried out, the CPA has a set of articles beginning with Art. 545 which, once the basic rights of the inviolability of the home has been withdrawn, guarantee the rest of the basic rights of the person (privacy, physical safety, not to suffer more incovenience than is strictly necessary). According to testimonies received, house-searhes in the Basque Country are extraordinarily violent, and are regularly reported to the police by residents and neighbours. The state in which homes searched have been left forces us to give absolute credibility to witnesses' reports, police forces have even dynamited the front doors of suspects who were subsequently freed with no charges made.

Methods used in interrogation by police forces

While the detainee is transferred to the place of dentention, the tension mounts; the individual fears increasingly for his or her life, and worries about what is going to happen, the humiliations and physical torture.

All individuals arrested under the accusation of collaborating with or belonging to an armed band are placed in solitary confinement, for a period of up to five days. Confinement means complete isolation for the detainee, leading to:

• Complete loss of the habitual points of reference of the individual's day-to-day identity.

• Sensation of insecurity, powerlessness and vulnerability.

• Sensation of being controlled day and night.

The following are the torture techniques most commonly used by any police force in interrogation:

• Suffocation in the bathtub, or by covering the head with a plastic bag or blanket.

• Electric shocks in sensitive parts of the body.

• Restriction or suppression of the basic necessities: eating, drinking, sleeping, etc.

• Manipulation of the senses: hood, use of drugs, hearing other people being tortured...

• Forced to remain naked.

• Forced to live in appalling conditions: filthy cells, no personal hygiene facilites.

• Physical exhaustion: forced to remain standing or in uncomfortable postures for long periods, physical exercises, sit-ups, etc.

• Subjected to long interrogations where the interrogators take opposite roles (the good one and the bad one), with threats, insults, humiliations and so on, until the detainee is physically and psychologically exhausted.

• Blows with the hand, fists or objects.

In the conclusion and recommendations with which he closed his latest report, Mr. Kooijmans, the Special Reporter on torture, says: "Staff responsible for applying the law, medical staff, policemen and any other people involved in the custody or treatment of any individual subjected to any form of detention or prison must receive proper training and instruction. Regarding the conditions of detention, the Committee recommends that the necessary provisions be adopted for prisoners in detention centres to be officially recognised, and for their names and places of detention to be entered in registers available to all interested persons, including relatives and friends. Regarding detention centres, the Committee recommends that hour and time of all interrogations should be registered together with the names of those present, and that this register should also be available for legal or administrative purposes. The Committee emphasizes the need to allow lawyers, doctors and, under supervision when the investigation requires it, close relatives rapid and regular access to detainees. Solitary confinement following arrest should, therefore, be prohibited."

In public session on April 23, 1993, during the analysis of a report by Spain, the UN's Committee against Torture spoke in similar terms in its final conclusions when it insisted on the advisability of introducing procedural regualtions on solitary confinement and the choice of a trusted lawyer.

Source: Torturaren Aurkako Taldea.