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Prolonged Pre-Trial Detention

International Law and Standards

International human rights law does not specify a maximum allowable period of detention before trial. The ICCPR requires that “anyone arrested or detained on a criminal charge…shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subjected to guarantees to appear for trial.”¹⁴⁴ The ECHR states that “everyone arrested or detained…shall be entitled to trial within a reasonable time or to release pending trial.”¹⁴⁵

The European Court of Human Rights has established in its case law that whether a period of pre-trial detention is unreasonable must be assessed on a case by case basis. In making this assessment, the Court has considered factors such as the seriousness of the offense, the applicable penalties, flight risk, and whether delays are due to the accused or the prosecution. The question of length of pre-trial detention is necessarily linked to the right to a trial within a reasonable period of time. Here again, assessments are made on a case by case basis. The complexity of the case is an important factor, and cases with an international aspect have been accepted as being more difficult and complex, and as such longer delays have been considered reasonable.

The European Court of Human Rights has placed particular emphasis on the obligation of authorities to show “special diligence” when the accused is in pre-trial detention.¹⁴⁶ In Assenov v. Bulgaria, in which the applicant had been charged with at least sixteen burglaries and the authorities justified his continued pre-trial detention on the fear that he would re-offend if released, the Court stated:

The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention but, after a certain lapse of time, it no longer suffices: the Court must then establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were ‘relevant’ and ‘sufficient’, the Court must also ascertain whether the competent national authorities displayed ‘special diligence’ in the conduct of the proceedings.¹⁴⁷

The European Court of Human Rights found that Assenov’s right to a trial within a reasonable amount of time had been violated because his case took two years to come to trial, during which time “virtually no action was taken in connection with the investigation; no new evidence was collected and Mr. Assenov was questioned only once.”¹⁴⁸

Spanish Law

Under Spanish law, pre-trial detention is considered a measure to be applied only when it is “objectively necessary and…when there are no other less onerous measures to the right to liberty through which the same goals may be reached… ”¹⁴⁹ The LEC establishes the conditions under which pre-trial detention may be decreed: the alleged acts must be punishable by a maximum prison sentence of two or more years, or a shorter sentence in the event the accused has a criminal record; and there must be “enough motives” to believe the accused is criminally responsible.¹⁵⁰ When both conditions are met, pre-trial detention may be imposed to “avoid the risk that the accused will commit other criminal acts.”¹⁵¹ Pre-trial detention may also be decreed when it is deemed that the accused presents a flight risk, in order to avoid the “hiding, alteration or destruction of evidence,” and to avoid the accused “taking action against the interests of the victim.”¹⁵²

Persons accused of serious crimes — those which carry a prison sentence of more than three years — may be held in pre-trial detention for up to four years. Article 504 (2) of the LEC stipulates a maximum of two years pre-trial detention in such cases. However, this period may be extended by another two years where the circumstances indicate that it is unlikely that the case can be brought to trial within that period. Fernando Flores Giménez, a high-ranking official in the Ministry of Justice, explained that while in theory two years should be enough to bring a case to trial; complex cases with many accused make the extension necessary.¹⁵³ Detainees must be released at the end of the permissible four-year period. In its 1996 concluding observations on Spain’s compliance with the ICCPR, the Human Rights Committee expressed concern that “the duration of pre-trial detention can continue for several years, and that the maximum duration of such detention is determined according to the applicable penalty.”¹⁵⁴

Spanish Practice

While prolonged pre-trial detention should be exceptional and imposed only when strictly necessary, in practice it occurs regularly in terrorism cases in Spain. A defense attorney for several 11-S defendants alleged that the two year extension is “practically automatic” in terrorism cases.¹⁵⁵ Another 11-S defense attorney told Human Rights Watch that “the right to no undue delays is not applied in complicated cases; there are too few judges and too many cases.”¹⁵⁶

At least twenty-three of the forty-one men indicted in Committal Proceeding 35/2001, the case against alleged members of an al-Qaeda cell in Spain, are in pre-trial detention in Spain. Of these, seven have been held in pre-trial detention since November 18, 2001, (having spent the five preceding days in incommunicado police custody).¹⁵⁷ Another seven have been in prison for periods ranging from two-and-a-half years (beginning in January 22, 2002) to six months (beginning in February 2004).¹⁵⁸ Nine men who had been on provisional release were sent back into pre-trial detention on November 19, 2004.

Judge Garzón, the examining magistrate, concluded the investigative phase of the legal process on June 15, 2004. No date has yet been set for the commencement of the oral trial, though an undisclosed source close to the case told a journalist for the daily newspaper El País that it would probably begin in early to mid- 2005.¹⁵⁹ 

The complexity, breadth, and international dimensions of the legal proceedings against the alleged members of an Al-Qaeda cell in Spain are undeniable. According to the Audiencia Nacional order officially closing the investigative phase of the case, the process is composed of 133 volumes containing the principal accusations and evidence as well as twelve separate documents on a variety of subjects. The September 17, 2003, indictment alone contains hundreds of pages of telephone transcripts reproduced to establish the existence of relationships among the accused and to demonstrate their purported activities in connection with Al-Qaeda.

At the time of the closing of the investigative phase, a significant number of issues were still pending, including reports from the Central Unit for External Information (Unidad Central de Información Exterior – UCIE), the police intelligence unit, and numerous defense appeals. Since the opening of the case, Judge Garzón has issued seventeen international inquiries; the Court had yet to receive the responses from Indonesia, Greece, Belgium, Yemen, Syria, Jordan, and Saudi Arabia. The Court had not yet translated the responses from the United Kingdom and Norway. If and when the Court receives reports from those countries that have not yet responded, these will need to be translated and submitted to the UCIE for study.¹⁶⁰ In between mid-June and early October, the Court received only partial responses from Belgium and Germany, while the remaining international inquiries remained outstanding.

The defense appeals still pending included appeals against the September 17, 200,3 and April 19, 2004, indictments, as well as appeals against pre-trial detention filed on behalf of eight defendants between January 2004 and June 2004. A panel of three judges in an Audiencia Nacional trial chamber is charged with hearing these appeals.¹⁶¹ By the end of 2004, all of these appeals had been denied. 

Analysis of Concerns

Several criminal defense lawyers expressed concern about the use of pre-trial detention as anticipatory sentencing or preventive detention. The defense attorney for Mohamed Needl Acaid, who was arrested on November 12, 2001, and was remanded to prison on November 18, 2001, says her client is serving an “anticipatory sentence.” “He has been in prison for three years accused of three things: a trip to Bosnia, sending money to people in Jordan and Yemen, and using stolen credit cards. But these are all police suppositions, because to date they haven’t obtained any proof of criminal activity,” the lawyer said. No additional information on Needl Acaid has been gathered since 1998, when the examining magistrate and the public prosecutor both held that there was insufficient evidence to warrant an arrest, according to the lawyer. She added out that none of those released on provisional liberty have absconded, saying “it makes you think these guys [her client and the other thirteen in pre-trial detention] are being prejudged.”  The lawyer has filed for Needl Acaid’s provisional release on at least five occasions; she says she has received the exact same denial of the appeal, with only the date changed, stating simply that “nothing has changed since his detention.”¹⁶² The European Court of Human Rights has specifically stated that the reasons given for continued deprivation of liberty must be fully substantiated and domestic courts may not merely confirm the detention in “an identical, not to say stereotyped, form of words.”¹⁶³

Sebastian Sallelas, the criminal defense lawyer for several defendants in the case, said he was convinced his clients were being held in preventive detention. Preventive detention refers to the imprisonment of people suspected of posing a threat to national security or public order where the goal is to avoid the alleged danger rather than the prosecution of any criminal act. “Social alarm is the concept that justifies preventive detention; there are no criminal arguments, but rather political ones…If you are not brought to trial within a reasonable period of time, it is undue delay because there is no proof,” Sallelas explained.¹⁶⁴ Another 11-S defense attorney said “the only motive is to prevent future acts, there aren’t any others.”¹⁶⁵ With respect to the detentions in connection with the March 11 bombings, one lawyer told Human Rights Watch that “what should be an exceptional measure has in this case been applied as the rule…they have used preventive detention, and that is barbaric. It looks like they just went around arresting everyone in the same circle; they’re letting them go now either because there really isn’t any evidence or in order to fish for more information.”¹⁶⁶

Prolonged detention before trial may have a deleterious impact on the mental health of the detainees. Several 11-S detainees are under psychological treatment and/or taking psychiatric medication, such as tranquillizers. In addition to the considerable length of time these detainees have spent in pre-trial detention, the conditions of confinement under harsh security measures contribute to the deterioration of these detainees’ mental health. These conditions are discussed in the following section.