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Limitations on the Right to an Effective Defense

International Law and Standards

The right to an effective defense is a cornerstone of the right to a fair trial. The ICCPR (Article 14) and the ECHR (Article 6) stipulate the minimum guarantees necessary to ensure the right to a fair trial to all persons accused of a criminal offense. These include timely and confidential access to counsel, and adequate time and facilities to prepare the defense. Another key element is respect for the principle of “equality of arms” which requires that the prosecution and the defense have equal opportunity to prepare and present their cases, including the obligation on the prosecution to disclose all material information. The European Court of Human Rights has held that “[e]quality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention.”¹¹²

Spanish Law and Practice

Two aspects of Spanish criminal law applicable to terrorism cases undermine the right to an effective defense. First, access to counsel during the incommunicado period is significantly restricted. As discussed extensively in the section entitled The Use of Incommunicado Detention, incommunicado detainees do not have the right to freely choose counsel but are rather assigned a legal aid attorney until such time as their incommunicado status is lifted. Almost five days may pass before a suspect in incommunicado detention first sees a lawyer. Incommunicado detainees do not have the right to confer in private with the legal aid attorney assigned to them, either before or after critical steps in the criminal process such as the official police statement and the hearing before the examining magistrate. In practice, legal aid attorneys have little or no information about the case against their client before they are called upon to assist in these proceedings.

Second, Spanish law permits the use of secret legal proceedings, or secreto de sumario, a measure that severely restricts access by defense attorneys to the details of an ongoing criminal investigation under the supervision of the examining magistrate. Article 302 of the LEC allows the examining magistrate to seal all or part of the judicial and police undertakings during the investigative phase. The article states that the measure must be lifted at least ten days before the closing of the investigative phase. Subject to that limitation, the Constitutional Court and Supreme Court case law has established that secrecy may be renewed indefinitely. Under secreto de sumario, defense attorneys do not have access to detailed information regarding the charges against their clients. They are not entitled to see any of the evidence or receive any information about the ongoing investigation. In contrast, the prosecutor is entitled to all of this information and to participate in all judicial or police investigations and proceedings. While secreto de sumario may be applied in any criminal case, all of the defense attorneys consulted during this research stated that its use in terrorism cases is virtually guaranteed.

Analysis of Concerns

Impact of limitations on the right to counsel during incommunicado detention

The government of Spain has maintained that the prohibition of a private conference between the incommunicado detainee and the legal aid attorney does not imply a significant limitation on the detainee’s right to defense. In an official communication to the CPT, the government of Spain stated that the Committee’s concerns on this point were irrelevant because “in any event he may request to be taken openly in the presence of the detainee in order to check if his physical and psychic condition [sic] are the proper one or if there are traces or signs of ill treatment.”¹¹³ This statement reflects the view, frequently repeated to Human Rights Watch in interviews with government officials, that the legal aid attorney during the period of incommunicado detention is an observer or guarantor that fundamental rights – such as the right to not be tortured and the right to be informed of all his or her rights – are not violated. As a high-ranking advisor in the Ministry of Justice explained:

These are very serious crimes [and] very exceptional situations…a private interview only makes sense from the perspective of a strategy of defense whereas [court-appointed lawyers in these cases] are lawyers of guarantee, not defense lawyers. And there is no appreciable prejudice to the guarantees [of the detainee] because all of the defense comes after the arrest, in the beginning it’s only necessary that the detainee know his rights.¹¹⁴

Furthermore, Attorney General Conde-Pumpido argued that the inability to speak privately with a lawyer before giving a formal statement to the police did not adversely affect the detainee’s right to defense because the statement does not have stand alone evidentiary value in court.¹¹⁵ This safeguard is designed to prevent convictions based on confessions made under potentially coercive conditions. However, while the contents of the police statement may not be used to incriminate the suspect, inconsistencies between the statement and later statements may be used to undermine the suspect’s credibility and therefore his defense. An additional concern is that the police statement can be used to collect further evidence against the detainee that would be directly admissible. A private conversation with counsel beforehand would allow the lawyer to advise the detainee against offering self-incriminating evidence. Judge Garzón said the prosecution may not use the police statement against a defendant, but may endeavor to demonstrate that the statement was false.¹¹⁶ Finally, it must be noted that the statement before the judge, which incommunicado detainees also must make without the benefit of prior confidential consultation with a lawyer, does have evidentiary value.¹¹⁷ 

A 2003 report commissioned by the president of the General Council of Lawyers (Consejo General de Abogacia - a nongovernmental association that represents and coordinates all of Spain’s local bar associations), Carlos Carnicer Diez, took the view that Article 520(2)(c), which lays out the right of all detainees in police custody to designate a lawyer and request his or her presence at all proceedings, should be interpreted broadly to include the right to a private interview, as this is “the most effective mechanism for the defense of [the detainee’s] personal integrity and the correct exercise of his right to legal assistance.”¹¹⁸ The document notes that while the draft bill to reform the LEC would have allowed for a private interview before the police statement, this modification was dropped in the final reform bill adopted in April 2003. The document clarifies that this right to a private interview should be applicable to all detainees including incommunicado detainees.

In a written communication, Carnicer stated the personal view that “persons under police custody should have the right to contact their lawyer and receive his visit in conditions that guarantee confidentiality” and “this right should be effective from the moment of detention and be realized through private interviews.”¹¹⁹

Both the CPT and the Human Rights Committee take the view that the right to counsel must include the right to speak privately with one’s lawyer.¹²⁰ In its 1991 report on Spain, the CPT stated:

[T]he fact that the detainee may not consult in private with the lawyer appointed on his behalf either before or after the making of his statement is most unusual. Under such circumstances it is difficult to speak of an effective right of access to legal assistance; the officially appointed lawyer can best be described as an observer. In the CPT's view, the requirement that the detainee's lawyer be officially appointed should make it possible to remove any risk of the legitimate needs of the investigation being prejudiced by an interview in private between the detainee and the lawyer.¹²¹

The existence of this limitation on the right to defense has also perhaps led to the widespread belief among lawyers and the police that the legal aid attorney may not directly address the detainee, or intervene in any way or at any time during the statement to the police. All of the legal aid attorneys for 11-M suspects with whom Human Rights Watch spoke held this belief. When asked specifically whether he could intervene to prevent his client from incriminating himself, one lawyer said, “Well, I could stomp on his foot, but no, I couldn’t say anything to stop him.”¹²² Two lawyers told Human Rights Watch that when they did in fact attempt to object to a question during the statement proceedings, the attending police officer told them to be quiet.¹²³

The government of Spain stated in a report to the CPT that:

The lawyer is legally authorised for the effective exercise of his function from the same instant in which he accepts the appointment and although Article 520(2)(c) of the Criminal Law Procedure assigns him the function of attending interrogatory proceedings and acting in the verification of identity, this requirement in no way establishes a closed list of the lawyer’s faculties, and in no way prevents the lawyer to exercise other functions of juridical and personal assistance.¹²⁴

There is a lack of consensus among legal experts as to the limits of the legal aid attorney’s role during the police statement. Marisol Cuevas, the head of the Madrid Bar Association’s Legal Aid Department, assured Human Rights Watch that the legal aid attorney may intervene in the proceeding “without any limitation,” though she did acknowledge that the value of talking directly with the client is limited because others are present.¹²⁵ Andrés Jiménez Rodríguez, head of the division on Defense and Interior, of the Defensor del Pueblo, said that it is not possible to interpret the law in a way that would prohibit the lawyer from participating fully in the proceeding, adding that it would be “illegal” for the police to prevent a lawyer from exercising the defense of his client.¹²⁶  However, Judge Garzón said that while the lawyer may intervene to object to a question or to require that a point be clarified, “theoretically [he or she] may not ask the detainee anything, though in practice this is allowed 100 percent of the time.”¹²⁷

The ability of the legal aid attorney to intervene effectively on behalf of the detainee in the statement to the police is unquestionably undermined by the lack of information provided to counsel. In practice, the lawyer is not informed of the specific charges or evidence against their client, often going into the police statement proceedings armed only with the client’s name and the general charge of membership or collaboration with a terrorist group. Many of the 11-M legal aid attorneys with whom Human Rights Watch spoke were not even aware, before arriving at the police station, that their client was a suspect in the 11-M bombings. In its report to the CPT, the ALA concluded, “it is absolutely untrue what the Spanish government says…about the total effectiveness of this legal assistance.”¹²⁸ The concerns expressed by the CPT in 1991 remain equally valid today.

Impact of secret legal proceedings

Spanish authorities argue that secreto de sumario is a necessary measure to protect the integrity of the judicial investigation that has a limited and temporary impact on the right to an effective defense. The Constitutional Court has ruled that secreto de sumario does not violate the constitutional right to defense. In Sentence 176/1988, the Court stated “secrecy of the investigation has the purpose of preventing…interference or manipulation designed to obstruct the investigation…and constitutes a limitation on the right to defense, which does not imply defenselessness, as it does not prevent the party from fully exercising [this right] as soon as secrecy is lifted having satisfied its purpose.”¹²⁹ Judge Garzón told Human Rights Watch that secreto de sumario merely delays full exercise of the right to an effective defense, which is then fully guaranteed throughout the legal process. He added that defense lawyers are entitled to require that all aspects of the investigation undertaken under secreto de sumario be repeated after it has been lifted.¹³⁰

Interviews with defense lawyers and a review of court documents demonstrate, however, that secreto de sumario often has a devastating impact on the ability of counsel to secure the release of their clients. All of the lawyers Human Rights Watch met with in the course of this research expressed tremendous frustration over the liberal application of secrecy measures. “Secreto de sumario is a disgrace,” according to Eduardo García Peña, a criminal defense lawyer.¹³¹ A large portion of the committal proceeding documents in the 11-S case was sealed for two years during the investigative phase of the judicial process. The investigation into the 11-M bombings is almost completely sealed and defense lawyers expect it to remain so for quite some time. As one legal aid attorney for an 11-M suspect told Human Rights Watch, “this is the only documentation I have on my client’s case,” as she pointed to a file of newspaper clippings.¹³² Another legal aid attorney in the 11-M case recounted, with evident exasperation, a meeting with Audiencia Nacional judge Juan del Olmo: “There he was, surrounded by stacks of paper, police reports, all documents I didn’t have and couldn’t see because of the secreto de sumario.”¹³³

Where the accused is held in pre-trial detention, the imposition of secrecy has a direct and immediate impact. Article 506 (2) of the LEC was reformed in October 2003 to allow the examining magistrate to omit critical details in the order mandating pre-trial detention for an accused in cases where the proceedings have been declared secret.¹³⁴  The order need only include a “succinct description of the alleged act” and which of the goals of pre-trial detention the judge wishes to achieve.¹³⁵ This means, as one 11-M criminal defense lawyer told Human Rights Watch, that “you can keep someone in prison for secret motives – that’s the worst.”¹³⁶ In other words, the state is not compelled to divulge, even to the detainee or the detainee’s counsel, the grounds that warrant pre-trial detention.

Under Spanish law, pre-trial detention is justified, among other reasons, when there exists sufficient evidence to believe the individual is criminally responsible for the acts of which he or she is accused.¹³⁷ In an ordinary case, all of this evidence must be included in the judicial order mandating pre-trial detention. Where this information is omitted due to secrecy of the proceedings, the criminal defense lawyer may appeal the prison order, but has little concrete information and therefore cannot contest specific details of the order. Criminal defense lawyer García Peña explained that under secreto de sumario, “whether your client is in jail or not depends solely on the judge and the prosecutor, not on the work of the [defense] lawyer.”¹³⁸ Indeed, one of the 11-M legal aid attorneys whose client has been released told Human Rights Watch, “The judge put [my client] in jail saying there was enough evidence, and three months later he says the opposite. So what happened in that period? I don’t know because of the secreto de sumario.”¹³⁹

Criminal defense lawyers for the 11-M accused have on at least two occasions appealed the imposition of secret legal proceedings. Human Rights Watch obtained through a third party a copy of an appeal petition filed by the legal aid attorney for Abderrahim Zbakh, on May 12, 2004, as well as Judge Del Olmo’s denial of the appeal.¹⁴⁰ The principal argument advanced by the Zbakh’s lawyer is that secrecy of the investigation fundamentally undermines the right to defense where there is a simultaneous application of pre-trial detention.

The appeal petition argues that the prerogative of the examining magistrate to omit information from the prison order, as established in the reformed Article 506 (2) of the LEC in October 2003, gives rise to a clear violation of the right to defense:

The right to defense with respect to the personal situation of the accused is not limited but rather emptied and materially excluded…it is evident that if the defense does not have access to the committal proceedings because it has been declared secret, and the prison order does not indicate the motives that make the examining magistrate believe that the accused may be criminally responsible…then it is materially impossible to defend against this cautionary measure.¹⁴¹ 

The fact that the LEC stipulates that the complete text of the prison order must be made available immediately to the defense as soon as secrecy measures are lifted is cold comfort to defendants sitting in jail. The appeal petition rightly argues that the omission of details from the prison order “prevents the party from fully exercising the right to defense at the time when it is relevant – now...”¹⁴² 

Such a view is consistent with the jurisprudence of the European Court of Human Rights. In the case of Lamy v. Belgium, the applicant was remanded into custody by a judge three days after his initial arrest. The applicant’s counsel did not have access to the investigation file in the remand proceedings. The Court noted that “[t]he appraisal of the need for a remand in custody and the subsequent assessment of guilt are too closely linked for access to documents to be refused in the former case when the law requires it in the latter case.”¹⁴³ The Court ruled that there had been a breach of Article 5(4) of the Convention.