Case Watch: European Court Strengthens Anti-Torture Safeguards

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

Criminal defense rights have never been a popular issue. When I tell strangers that I work on criminal defense issues for a human rights organization, their response is often perplexed: “The rights of criminals?” they ask. “How can you sleep at night?” And this knee-jerk reaction is reflected in our national and international politics too. There is little political capital in being seen to care about the rights of people who have been arrested, even before a court decides on whether they are guilty or innocent.

But in recent years, things have been changing throughout Europe. And they are changing at every level of policy-making, from national governments and courts, to regional EU legislators, to the United Nations. Europe is getting serious about defense rights and the momentum is undeniable.

A judgment on October 7 from the European Court of Human Rights adds to this forwards movement. In Etxebarria v Spain, the Court concluded that Spain should implement safeguards to protect people in police detention from torture by the police, under Article 3 of the European Convention on Human Rights. This is, to my knowledge, the first time the court has endorsed a view that certain rights that are guaranteed to people arrested on criminal charges, which we normally only see protected under Article 6 of the convention, are also a part of the state’s positive obligations under the anti-torture provisions of Article 3.

The applicants in this case complained of being tortured by the police after being arrested for terrorism-related offences. They were held under a particularly severe regime of what is known as incommunicado detention in Spain. They were denied three of the most basic defense rights: they could not communicate with the outside world, they could not access a lawyer of their choice, and they could not get independent medical assistance, even after they complained of being beaten and abused by the police. 

The Justice Initiative’s intervention in this case argued that any regime that limits these fundamental defense rights breaches Article 3 of the convention because it fails to provide safeguards to protect people who are at risk of torture. Without a lawyer, doctor or the ability to communicate with the outside world, you are entirely at the mercy of your captors. Most acts of torture happen in the first hours or days after a person’s arrest. We argued that because the right to a lawyer, an independent doctor, and the right to communicate with the outside world are crucial safeguards against torture happening, they should be recognized and enforced as such under Article 3 of the convention.

The European Court endorsed this view. The court emphasised that the applicants were in a position of vulnerability and subscribed to the recommendations made by the European Committee for the Prevention of Torture [PDF] in a report on Spain published in 2003 and reproduced by the Council of Europe Commissioner for Human Rights in his report of 9 October 2013 concerning the safeguards that must be put in place to protect people in incommunicado detention. These include the right to be examined by an independent doctor of their choice, the ability to consult in private with a lawyer, and the right to notify their family of their detention.

Spain has been the subject of increasing scrutiny and criticism over its incommunicado detention regime. Today’s judgment places further pressure on the government to reform a system that restricts safeguards to the extent that it has the effect of facilitating torture. Any progress towards this goal means we could all sleep better at night.

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