The European Court of Human Rights (ECHR) condemned the Spanish State for having interrogated a member of the Basque terrorist organization ETA without the presence of his lawyer, during his incommunicado detention.
The appellant was under the precautionary measure of preventive detention incommunicado in a Spanish prison. During this period he was subjected to interrogation, without the assistance of his defense attorney. He is currently serving a 17-year prison sentence for belonging to the Basque terrorist and separatist organization ETA and for being discovered carrying explosives.
The European Court was aware that the incommunicado detention order against the appellant was provided for by the anti-terrorist criminal law. However, the character of this rule lacked precision, since the criminal type that was charged to the actor was too general.
On the other hand, the Court considered that from the point of view of the fairness of the procedure as a whole, and the fundamental and procedural guarantees that must be respected, guaranteed and promoted throughout the criminal process for the benefit of all the accused persons, the the fact that the authorities of the penitentiary in which the appellant was serving the precautionary measure of preventive detention prevented his defense attorney from having direct contact with his client during an interrogation and, subsequently, prevented him from being assisted by another attorney of his election had the consequence of vitiating the impartiality of the subsequent criminal trial that was brought against him.
The Court specified that the Spanish Code of Criminal Procedure was modified in 2015, as a consequence of which, it now imposes an individual evaluation of the particular situation of incommunicado persons. However, said modification was not applied with respect to the appellant at the pertinent moment.
In short, the European Court considered that the Spanish State incurred in a violation of the procedural guarantees enshrined in article 6 of the European Convention on Human Rights, regarding the right to a fair trial and the right to legal assistance of the defendant’s choice and ordered Spain to pay the appellant the sum of twelve thousand euros for non-pecuniary damage and eight thousand euros for costs and expenses incurred by the plaintiff.
See text of the sentence.
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