On 22 January 2020, Spain’s human rights situation will be scrutinized by the UN in Geneva within the framework of the Universal Periodic Review mechanism (UPR). In its report on the stakeholders’ contributions, the High Commissioner for Human Rights echoes the issues raised by different NGOs, associations, coalitions and individuals regarding the abuse of pretrial imprisonment in Spain such as: excessive duration, the system of secrecy of the pretrial investigation (secreto de sumario), the arbitrary inclusion of prisoners in remand in the Fichero de Internos de Especial Seguimiento (FIES) regime and incommunicado detention – writes Willy Fautré, director of Human Rights Without Frontiers.

Spain’s deafness and blindness

During the first UPR cycle in 2010, the UK, Slovenia, Germany and the Netherlands had already asked Spain in advance about these issues.

On 22 February 2010, the UN Human Rights Committee then indicated that “Spain should provide, within one year, relevant information on the implementation of its recommendations in paragraphs 13 (national mechanism for the prevention of torture), 15 (length of pretrial detention) and 16 (matters of detention and expulsion of foreigners). No response has been received.” (Source: A/HRC/WG.6/8/ESP/2).

Over the last ten years, Spain has turned a deaf ear to pressing concerns voiced by the Human Rights Committee of the Council of Europe and the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (CPT), which problematized the FIES prison regime, also known as the Registry of Specially Monitored Prisoners.

Now, a decade later, a group of Spanish lawyers (CAPS) stressed in their joint submission to the UN (JS5, paragraph 4) that “There is also no record of Spain responding to the concerns expressed concerning the regime of secrecy during the pretrial investigation.”

Even more worrisome is the lack of adequate implementation of recommendations accepted by Spain during its previous UPR cycle in 2015, as denounced by Fair Trials and noted by the High Commissioner in its report (paragraph 28).

Now the UN once again draws the attention of all the delegations at Geneva to the numerous voices from civil society calling for Spain to: establish clear and exceptional legal criteria for applying pretrial detention; to provide for alternative measures and to ensure their use in practice; to cease using the FIES classification for non-dangerous cases; to abolish “secreto de sumario” in the context of pretrial detention; to investigate all cases of torture and ill-treatment in conformity with international standards; and to ensure that the presumption of innocence is maintained for pretrial detainees (paragraph 31).

The submissions by the various stakeholders demonstrate that these issues not only arise in the much-publicized case of the pretrial detention of several Catalonian politicians (that were recently tried and convicted to lengthy prison sentences), but also in the prosecution of ordinary economic or financial crimes. The CAPS submission describes four cases in which the Spanish judiciary abused charges of "money laundering" to mandate unjust lengthy pretrial imprisonment, so as to “soak” (in the jargon of the Spanish judicial police) people under investigation and obtain confessions.

Here is an excerpt from one of those cases:

On 23 May 2017, Sandro Rosell was arrested for allegedly creating a criminal organisation and laundering about 20 million EUR from illegal commissions through a financial transaction between two football clubs. Rosell remained in pretrial detention without bail for 21 months. He appealed for release on bail more than twenty times, once offering all of his assets (35 million EUR) as a guarantee that he would appear at the hearing. His requests were all rejected. The prosecution called for a six-year prison sentence. On 24 April 2019, the National Court ruled that he was not guilty and acquitted him of all charges. However, the National Court denied that Rosell’s pretrial imprisonment had been abusive or unjustified, and so he was not entitled to financial compensation. The judgment was confirmed by the Appeal Division of the National Court on 3 July 2019.

Along the same lines, CAPS also presented the pending Kokorev case in its submission:

“On 7 and 8 September 2015, three members of the same family, Vladimir Kokorev, his wife Yulia and son Igor, were detained for money laundering under an international arrest warrant issued by a Criminal Investigation Court in Las Palmas de Gran Canaria.”

“In Panama, they voluntarily accepted extradition and were released on bail. In Spain, the judge sent them to prison without the possibility of bail, where they remained for more than two years, for most of this time with the pretrial investigation conducted in absolute secrecy. They were included in the FIES-V registry reserved for terrorist suspects, even though they had no criminal record. They began to be released without bail as the appeal court considered that their continued imprisonment could represent an anticipated punishment.”

The Kokorev case – with which HRWF is very familiar – epitomizes the tendency of the Spanish authorities to turn a blind eye to apparent judicial abuse.

The investigations started in 2004, reached the courts in 2009, and have so far been extended to February 2020. No trial is expected before 2024 – more than two decades after investigations began.

The defense counsels have repeatedly denounced the lack of judicial supervision of the investigators, which has resulted in rubber-stamping of dubious police work. This includes the use of fabricated evidence against the Kokorevs to justify their pretrial detention. The Spanish judges have, in turn, flatly refused to examine the evidence against the police and to review their work until the Kokorevs’ trial is underway.

Conclusion

Spain has its back against the wall concerning the systematic abuse of pretrial imprisonment, combining lengthy detentions with special regimes, such as the secreto de sumario or FIES. It cannot pretend to be a Rule of Law democracy as long as it continues turning a blind eye to reports published by international human rights organizations and institutions. Too many cases of the denial of justice have accumulated in the last decade. The time has come for Madrid to act.