Spain

National context

In Spain there are two Prison Administrations: The Central Government Prison Administration, under the jurisdiction of the Ministry of Home Affairs, which supervises prisons located throughout the entire Spanish territory, except Catalonia; and the Catalan Prison Administration, under the jurisdiction of the Department of Justice of the Government of Catalonia, which supervises prisons located in that territory. These two administrations are independent in the sense that each has its own personnel, with its own budget.

The prison system of the Central State Administration consists of 68 prisons, 91 centres of varied security regimes and only 2 psychiatric prisons.[1] As regards Catalonia, there are 9 prisons, 5 prisons for open regime and 1 module serving as prison hospital.[2]

According to the Council of Europe Penal Statistics, as of January 1st 2015 the total prison population in Spain (including both prisoners on remand and convicted prisoners) amounted to 65,017 inmates. 55,723 inmates were serving their prison sentence in prisons run by the Central Administration and 9,294 prisoners were held in Catalonian prisons. The total capacity of the Central Government prison system was 65,980; whereas the total capacity of the Catalonian prison system was 11,229. The prison density (per 100 places) was 84.5 as regards the Central Administration and 82.8 as regards Catalonia.[3]

This represents an improvement as compared to the situation observed in 2011[4] and, especially to the situation observed in 2009 when the total prison population reached its peak (76,079 inmates for the whole of Spain) and the prison system was afflicted by significant overcrowding. Ever since that year, the total prison population has decreased and this decreasing trend continues to be discernible this current year. Indeed, from January to October 2015 the total prison population has decreased by 2092 inmates[5] (during 2014 the total prison population decreased by 1245 inmates)[6]

Despite the decrease of the prison population in the last few years, a number of concerns remain. Prison population is not evenly distributed throughout the different prisons or even within the units of a given prison and thus the problem of co-habitation of cells persists in many centres, in clear breach of the legal requirement of single-occupancy cell placement. Indeed, still in numerous prisons, notably in the so-called macro-prisons, cells as a general rule have a double capacity[7] and in some cases cells are shared between three or more prisoners.[8]

Spain continues to have a large incarceration rate per 100,000 inhabitants, despite having relatively low crime rates[9]. As of October 2015, Spain’s incarceration rate was 137.8 and Catalonia’s was 117.3[10]These figures are slightly below the European average but higher than the rates of neighboring countries, like for example Italy (102.9) or France (118.3), and very distant from northern European countries with a judicial system more targeted to the restitution of damage, as the Netherlands (60.8) or Norway (69.9).[11]

The measures adopted both by the Central Prison Administration and the Catalan Prison Administration to decrease the prison population rates have included “back door strategies”, such as encouraging the application of alternatives to prison sentences (like fines), bringing forward conditional releases and, above all, replacing of the prison term with expulsion for convicted foreign national prisoners. Such measures are regrettably guided more by economic criteria than by the principles of rehabilitation and reintegration.[12] Yet, despite these “back door strategies”, Spanish authorities have mainly tried to tackle the phenomenon of large prison population and overcrowding, through the construction of new prisons, notably “macro-prisons”.[13]

The creation of more prison places has not been followed by a corresponding allocation of resources and an increase in investments. As of January 2013 in Spain, the cost of prisoner per day was 53.34 €, far from the European average cost of 97 €. Yet the overall budget devoted to the prison system was 1,412,558.4 € well over the European average, which stood at 577,926.3 €.[14]

As regards the length of sentences imposed, in Spain the most common length of sentence is 5 to 10 years (27.7%).[15] As of October 2015, the number of prisoners subject to a first-degree classification or closed regime stood at 1040. This is a slight decrease on previous year (1103).[16] Finally, it is worth mentioning the continuing detention in prisons of persons with severe mental health problems, for whom care cannot be appropriately provided in the prison environment.

Impact of the ECtHR case law

§I As of December 2015 the ECtHR has ruled 13 judgments in relation to Spain on lawsuits filed by persons deprived of their liberty, be it either detainees in police stations or in remand custody or sentenced prisoners. From this pool of 13, the majority of the ECtHR judgments condemning Spain as regards deprivation of liberty refer to incommunicado police custody. That is, complaints from detainees in police stations (in dungeons) on whom it had not yet been rendered a Court order of imprisonment and always in the field of terrorism (since incommunicado detention under Spanish regulations is mainly, but not solely, contemplated for terrorism related offences). In all of these judgments, the applicants claimed to have suffered inhuman and/or degrading treatment during the period when they were under incommunicado detention, and in all of them, the ECtHR condemned Spain for violating Article 3 not in its substantive aspect but in its procedural aspect. Indeed, according to the ECtHR rulings, Spain systematically incurred in a lack of thorough and effective examination into the allegations of inhuman and/or degrading treatment carried out by the State Security Forces during the incommunicado detention.

§II Therefore, as regards prison matters related to remand prisoners or convicted prisoners, the ECtHR has not yet ruled on claims related to prison issues strictly speaking (i.e.: to those aroused in connection with life in prison following the enforcement of a prison sentence). We can therefore conclude that no decisions of the ECtHR have had a direct impact for Spain as regards actual obligations in penitentiary issues (although the recommendations made in connection to the effectiveness and thoroughness of the investigations into the claims of alleged ill-treatment during incommunicado detention could be extrapolated and applied to the investigations which domestic authorities carry out in prisons when either remanded or sentenced prisoners report acts of ill-treatment).

§III Article 46 was applied in the case of del Rio Prada v Spain but the ECtHR limited itself to request Spain to ensure that the applicant was released at the earliest possible date. Spain released the applicant two days after the decision had been rendered. Even though the Court did not expressly request the release of other inmates who were in the same situation as the applicant, other prisoners affected by the Parot doctrine have also been released by the Spanish authorities. There is however, a kind of informative opaqueness as regards the exact number of released inmates and no official data is available

§IV According to the Council of Europe Penal Statistics, as of January 1st 2015 the prison density (per 100 places) was 84.5 as regards the Central Administration and 82.8 as regards Catalonia.[17] This represents an improvement as compared to the situation observed in 2011[18] and, especially to the situation observed in 2009 when the total prison population reached its peak (76,079 inmates for the whole of Spain) and the prison system was afflicted by significant overcrowding. Ever since that year, the total prison population has decreased and this decreasing trend continues to be discernible this current year. Therefore, at this moment overcrowding is no longer a pressing issue. However, and despite the decrease of the prison population in the last few years, a number of concerns remain. Prison population is not evenly distributed throughout the different prisons or even within the modules of a given prison and thus the problem of co-habitation of cells persists in many centres, in clear breach of the legal mandate of single-occupancy cell placement. Indeed, still in numerous prisons, notably in the so-called macro-prisons, cells as a general rule have a double capacity[19] and in some cases cells are even shared between three or more prisoners.[20]

In addition, Spain continues to have a large prison population rate per 100,000 inhabitants, despite having relatively low criminal rates[21]. As of October 2015 Spain’s prison population rate was 137.8 and Catalonia’s was 117.3[22] These figures are slightly below the European average but higher than the rates of neighbouring countries, like for example Italy (102.9) or France (118.3) and very distant from northern European countries with a judicial system more targeted to the restitution of damage, as the Netherlands (60.8) or Norway (69.9).[23]

Bodies in charge of prisoners’ complaints

1. Remedies

§1 The most frequently used and trusted authority for the protection of prisoners’ rights in Spain is the Judge for Prison Supervision (Juez de vigilancia penitenciaria). In Spain there are 50 Courts for Prison Supervision and 1 Central Court for Prison Supervision.

§2 Although it is not ruled clearly in any piece of legislation, a procedure has been de facto developed which involves filing first a complaint or a request to the Prison Director before moving to the judiciary. This lack of concrete procedural rules concerning the transition between the filing of complaints and requests inside the prison and the judiciary is a source of uncertainty and arbitrariness (This normative gap is particularly worrying when it comes to ill-treatment related issues, since in these cases, inmates would prefer to go directly to the judge because they fear retaliation or covered sanctions like the transfer to another unit, another prison, delays with their mail, the prohibition of some communications, visits, etc. The problem is that, due to the lack of clear regulation on this possibility, some judges consider that those prisoners need in any case to previously file a complaint within prison before going to the judiciary, whereas some other judges accept direct complaints, without the need for previously going through the prison’s complaints procedure)[24].

§3 When the prisoner’s complaint or request filed before the Prison Administration is denied or in the absence of an answer, the inmate can then lodge a complaint before the Judge for Prison Supervision. One of the main problems is precisely that due to the absence of specific rules, there is no clear limit of time for the prison administration to give an answer to the prisoner. Notwithstanding the above, a procedure has been de facto developed (mirroring the rules used within the General Administration), according to which: if within three months from the date of the receipt of the request/complaint the Prison Administration has not taken any action, the prisoner may file an “action of complaint” (“recurso de queja”) to the Judge for Prison Supervision in charge of supervising the facility where the inmate serves his sentence against the implied rejection of the request or complaint (“recurso de queja por silencio administrativo”). The prisoner may also file an action of complaint before the Judge for Prison Supervision if the Prison Director explicitly refuses the request or dismisses the complaint. In both cases, implicit or explicit rejection of the request/complaint by the Prison Director, the inmate has one month (30 calendar days) for lodging the action of complaint before the Judge for Prison Supervision.

§4 When inmates first reach the Judge for Prison Supervision, they lodge complaints on their own behalf (without the need for a lawyer’s signature) and submit them “on open” to the prison postal service so that they arrive sooner. There is no sample-form to be used as a template, but rather all kinds of writings are accepted. A lawyer is only mandatory when appealing a Judge for Prison Supervision’s decision (sometimes it is too late in order to have a proper defence and in particular appropriate means of proof). However, it is to be noted that in many Bar Associations (Pamplona, Seville, Orense, Madrid, Barcelona, etc.) operate the so-called: Service for Legal Advice in Prison (Servicio de Orientación Jurídica Penitenciaria). This service is free of charge for prisoners and consists on the provision of legal advice from lawyers experts in Prison Law. These lawyers hold interviews with inmates in prison every week and answer their questions and doubts. They also help prisoners fill in their requests for a duty-lawyer. However, they do not formally file applications before judicial authorities; they solely clarify doubts (which, for example, inmates may have when filing complaints and requests before the prison administration or the Judge for prison supervision). It is a highly-requested service which, regrettably, is not available in every province in Spain.

§5 When the Judge for Prison Supervision receives an action of complaint raised by the prisoner against the implicit or explicit rejection of his/her request or complaint by the Prison Administration, the judge opens a file and initiates proceedings. The Judge asks the Prison for reports and forwards all to the Public Prosecutor. As regards the procedure before the judiciary, there are no precise time limits for judges and prosecutors (the expression used by legal texts is “expeditiously and within the shortest possible delay”[25]). This flexibility, however, does not extend to lawyers and prisoners, who have closed deadlines. The judge either rejects or upholds the action of complaint and must justify the decision. If rejected, the prisoner has 3 options:

  1. §6 Within three days, the prisoner may bring an action for reform “recurso de reforma” before the same Judge for Prison Supervision. Once this appeal is received in court, the same procedure as with the action of complaint is followed: the documents are forwarded to the Public Prosecutor so that he/she may take into consideration the prisoner’s allegations. The prosecutor issues a report and must hand it in within the time-limit established ad hoc by the Judge for Prison Supervision, which is usually five days. However, as a standardised practice Prosecutors request the postponement of this deadline due to work overload. Once the Prosecutor refers back to the Judge for Prisons’ Supervision, he / she must settle on the issue by an indictment, again within the shortest possible delay. If the Judge dismisses the application once again, the prisoner (represented by his lawyer at this stage) has five days to file an appeal (“recursos de apelación”) before the Province Court.
  2. §7 Within five days the prisoner may lodge a direct appeal “recurso directo de apelación” straight before the Province Court. This direct appeal must be formalized by a lawyer. If the prisoner has not fulfilled this requirement, the court itself asks the bar association to appoint a duty-lawyer to formalize the appeal. The Province Court shall settle on the issue within the shortest possible delay.
  3. §8 Within three days the prisoner may bring an action for reform and subsidiary appeal “recurso de reforma y subsidiario de apelación”. The action for reform needs not be signed by a lawyer and usually prisoners submit this document on their own handwriting. However, prisoners must at this point already indicate whether they would like to be assigned a duty-lawyer in case the action for reform is dismissed and the subsidiary appeal is then lodged. The way of proceeding is always the same: the judge receives the action for reform, requests reports to prison, and refers the case to the Public Prosecutor who in turn issues a report (usually within five days). Based mainly on the Prosecutor’s report, the Judge by indictment either rejects or upholds the action for reform in the shortest possible delay. If rejected, an appeal “recurso de apelación” signed by a lawyer is brought within five days before the Province Court, which shall settle on the issue within the shortest possible delay.

§9 Once all the lawyer’s allegations are handed to the Province Court, the date for the final deliberation and rendering of decision is specified. Against the decision issued by the Province Court, no appeal may be lodged further. The procedure is free of charge since the costs of prosecution are waived officially (and a barrister “procurador” is not needed) and the majority of prisoners are often granted free legal aid (though they may also opt for a private attorney).

§10 There is no urgent procedure. Usually, the procedure that follows since the first inmate’s request until the Provincial Court renders its final decision and notifies it to the Prison may last, on average, from 6 to 8 months.

§11 Judicial decisions handed down by the Judge for Prison Supervision are always notified to inmates through a court officer who comes to Prison. Inmates must sign a receipt once they receive the judgment.

bodies in charge of the prisoners Spain

2. Other proceedings

Non jurisdictional mechanisms of control

a. Prison Administration

§12 In Spain there are two Prison Administrations: The Central Government Prison Administration, under the jurisdiction of the Ministry of Home Affairs, which supervises prisons located throughout the entire Spanish territory, except Catalonia; and the Catalan Prison Administration, under the jurisdiction of the Department of Justice of the Government of Catalonia, which supervises prisons located in that territory. These two administrations are independent in the sense that each has its own personnel, with its own budget.

§13 The administrative authorities within Spanish prisons are civil servants. The Prison Director and the Deputy Directors are appointed directly by the General Secretariat for Prisons, but from the available pool of civil servants. This in itself offers a certain guarantee of independence in so far as they may only be dismissed, suspended, transferred or retired on the grounds, and subject to the guarantees provided by law. It is worth noting, however, that the Centre of Direction (Centro Directivo), a political body related to the General Secretariat for Prisons, has an absolute control over the decisions taken by Prisons’ Directors as regards the Files for the Special Monitoring of Inmates (FIES, Ficheros de Internos de Especial Seguimiento). Certain group of inmates who are believed to be potentially destabilising of the Prison system are included within one of these files and all decisions affecting them are monitored by the Centre of Direction which has the last say (overrunning the Prison Directors criteria, if need be). They were introduced by an off the record decree on 6th March 1991 and, although in 2009 the Supreme Court declared part of it null and void, in 2011 a new regulation was passed. There are five different files:

  • FIES 1 for Direct Control
  • FIES 2 for Organised Crime
  • FIES 3 for armed groups
  • FIES 4 for members of Security Forces
  • FIES 5 for inmates with special characteristics

§14 As regards the complaint procedure available for prisoners within prisons, it is to be firstly noted that no piece of legislation establishes specific procedural rules for lodging a complaint or request before the Prison Administration; instead, rules used within the General Administration are the ones used in prisons too.

§15 Within prisons inmates file their requests and complaints in written. Requests and complaints are filed through a specific application form (“instancia”) which has attached to it three tracing papers (different in colour) so that three copies of the written text remain. The white copy goes to the addressee of the complaint / request (i.e. the Prison Director). The prisoner retains the pink copy and the yellow copy goes to the internal Prison register for complaints and requests. Inmates fill in this form of their own handwriting and hand it in to the Head of Module or to the Educator, who submits it to the Director. It is an affordable and easy process. The prospect of success depends on the content of the complaint, yet it is “successful” in the sense that complaints and requests are nearly always forwarded due to the use of tracing paper and the existence of receipts. Indeed, these receipts are very useful to prove the existence of the complaint / request when accessing the judiciary. Inmates are always handed the “resolution” adopted by the Prison Director as regards their request / complaint. This resolution is usually four-lines long and outlines the reasons behind the denial.

§16 The above procedure refers to prisoners under the jurisdiction of the Central Administration (who always receive a receipt of their requests and complaints filed inside the prison), whereas within prisons in Catalonia there is no adequate acknowledgment of receipt as regards requests (since orally requests are accepted too) neither is there a specific internal complaints system in place and requests and complaints are mixed together.

b. Ombudsman

§17 As a result of the amendment of the Organic Law 3/1981, of 6 April, regulating the Ombudsman, by the Organic Law 1/2009, of 3 November and the entrance into force of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Spanish Ombudsman acts as the so-called National Mechanism for the Prevention of Torture (hereafter NMPT).

§18 The Ombudsman is elected by the Congress of Deputies and the Senate by a three-fifths majority. Its mandate lasts five years and does not seek or receive orders from any authority. It discharges its functions with neutrality, independence and impartiality; and enjoys full immunity and inviolability in the performance of its duties. In order for the Ombudsman’s work of investigating and supervising public administrations to be effective, the law indicates the obligation of all public authorities to give preferential, priority treatment to assisting him. The Ombudsman, his Deputies, or any other person authorised by him may enter any offices or installations of the public administrations to verify any data needed to carry out any research related either to a complaint or an ex officio initiative. The Ombudsman may also ask public officials for any documents that he considers necessary for carrying out his work, even those legally classified as secret. The persistence of a hostile or obstructive attitude towards the Ombudsman’s investigations may be the subject of a special report, as well as being highlighted in the annual report to Parliament. In addition, Spain’s Penal Code (article 502) determines the penalties for those who obstruct the work of the Ombudsman, by refusing to provide or unduly delaying the reports that they may request, or obstructing their access to records or administrative documents necessary for their investigations.

§19 Nevertheless, the Ombudsman’s activities may be characterised generally as that of non-jurisdictional, and therefore, non-binding supervision. Indeed, the Ombudsman is not empowered to overrule the public administration’s acts and decisions, and limits itself to suggest modifications in the guidelines used to apply them. It does so, through the provisions of reports on the results of his investigations. These reports include a series of resolutions and are sent to the public authorities and the civil servants involved in the case as well as to the interested party

§20 In addition to ex officio interventions, the Ombudsman can also act at the request of any citizen, including prisoners, who can file their complaints before him in cases of ill-treatment. The filing of these complaints is free of charge. Prisoners address him by letter of their own handwriting and on their own behalf. Complaints must be signed by the party concerned, providing a name and address in a document stating the grounds for the complaint, and within a maximum of one year from the time of the underlying events. Once the complaint is presented to the Ombudsman’s Office, it is registered and the signatory is sent notice of its reception. If the issue at stake falls within the scope of the Ombudsman’s competencies, and there is evidence of such infringement or administrative irregularity, then an investigation is launched. If not, the complaint’s signatory is informed in writing of the reasons for this rejection, and if possible, of the most appropriate channels for vindicating his or her right.

The reality, however, is that due to the fact that the complaints are sent by prisoners directly from the prisons where they are serving sentences and that the complaint cannot be anonymous, many inmates are discouraged when it comes to filing complaints regarding ill-treatment.

c. Office of the Prosecutor

§21 According to the Organic Statutes of the Public Prosecution Services (Act 50/1981 of 30th December) and to the 5th additional provision of the Organic Law of the Judiciary there is a specialized Prosecutor for Prison Supervision.

§22 Inmates can submit complaints to the Prosecutor. However, given that there is no specific Procedural Penitentiary Act the procedure for complaining before the Prosecutor is not legislated. Moreover, and given that the Prosecutor during the criminal proceedings within the ordinary jurisdiction is the one in charge of requesting the enforcement of prison penalties, they have a very damaged image in the eyes of sentenced people already before their first contact with the Prison system. In addition, Prosecutors rarely report positively on inmates’ situations before the Judge for Prison Supervision as regards request for parole or leaves and usually follow the prison’s report. This further damages their image. It is thus, no surprise that inmates hardly ever use this possibility.

3. Articulation between remedies and control mechanisms

§23 Although it is not ruled clearly in any piece of legislation, a procedure has been de facto developed which involves filing first a complaint or a request to the Prison Director before moving to the judiciary. This lack of concrete procedural rules concerning the transition between the filing of complaints and requests inside the prison and the judiciary is a source of uncertainty and arbitrariness. This normative gap is particularly worrying when it comes to ill-treatment related issues, since in these cases, inmates usually prefer to go directly to the judge because they fear retaliation or covered sanctions like the transfer to another unit, another prison, delays with their mail, the prohibition of some communications, visits, etc. The problem is that, due to the lack of clear regulation on this possibility, some judges consider that those prisoners need in any case to previously file a complaint within prison before going to the judiciary, whereas some other judges accept direct complaints, without the need for previously going through the prison’s complaints procedure.

§24 The filing of complaints and requests must be initiated by the inmate itself, both before the Prison Administration and before the Judge for Prison Supervision. However, the Prison Administration has the duty to transmit to the judiciary some of its acts and decisions for judicial monitoring (judgment of the Spanish Constitutional Court nº 175/1997). In particular, the judge controls:

  1. Detainees’ transfer to a closed regime pursuant to Art. 76.2 LOGP (i.e. because they have been ranked as first category prisoners)
  2. Detainees’ limitations on their regime pursuant to Art. 75 RP (Inmates that request to be held within an isolated regime because their life is at risk)
  3. Use of coercive means pursuant to Art. 45.2 LOGP
  4. Communications interception pursuant to Art. 51.5 LOGP
  5. Application of the following measures or sanctions: pursuant to art. 20.3 RP (staying more than 5 days in the arrivals units), pursuant to art. 34 (transfer), pursuant to art. 44 RP (suspension of oral communications), pursuant to art. 95.3 RP (transfer to a closed regime).

§25 There is no piece of legislation formally preventing prisoners from filing requests and complaints before the Judge for Prison’s Supervision, the Prosecutor and the Ombudsman at the same time and as regards the same complaint. However, the Ombudsman may not investigate complaints regarding matters that are before the courts pending a judicial decision, although this does not impede him/her from investigating general problems related to such matters. In this case, the Ombudsman’s investigations must be carried out with the utmost discretion, both insofar as individuals and public institutions are concerned, regardless of the considerations that the Ombudsman deems appropriate for inclusion in his reports to Parliament

Remedies

– Accessibility of remedies

– simplicity of the procedure

§26 The complaint procedure is simple in the sense that it lacks formalism. Indeed, there is no sample-form to be used as a template, but rather all kinds of writings are accepted. It suffices if prisoners identify themselves and state their willingness for appealing; there are no further formal and or substantive requirements (however, the appeals that need to be lodged by a lawyer, that is, those appealing a Judge for Prison Supervision’s decision, must meet a series of formalities. The lack of formalism is only applicable to direct communications between inmates and the Judge).

This lack of formalism removes many social hindrances related to education and training (an important aspect given that numerous inmates have low education levels and can be categorised as “functional illiterates”). There is a book which facilitates to this kind of inmates (and to other inmates with higher education levels too) the lodging of complaints, requests, etc. before domestic courts (and Prison Administration). This book is called “Handbook of Prison Execution: How to defend oneself from Prison” (“Manual de Ejecución Penitenciaria: Defenderse de la cárcel”) which is printed and distributed for free for prisoners by Caritas Spain and for professionals by Colex. The first 600 pages answer all the questions that a prisoner may have and the other 300 pages are sample application forms for filing complaints, requests, appeals, etc. Prisoners just need to find from the available pool of samples the one that matches their particular need and hand copy the form, entering their names in the blanks fields. It is widely used by prisoners who find it extremely useful given that the first appeal before the Judge for Prison Supervision must be filed by prisoners in their personal capacity (that is, neither inmates nor legal persons, like for example NGOs, can litigate on behalf of other inmates). Apart from simple, the complaint procedure is also direct since prisoners firstly contact the Judge for Prison Supervision without the need for intermediaries, only if pleaded further a lawyer becomes mandatory. Finally, filing a complaint before the Judge for Prison Supervision is free of charge when it is “filed on open” from the postal services within prisons; in this sense, financial hindrances are no insurmountable setback for inmates when accessing the Judge for Prison Supervision.

– legal aid

§27 There are differences in the access to legal aid during the procedures before the Judiciary and the Prison Administration.

§28 As regards the procedure before the Prison Administration, as a general rule, prisoners are not assisted by lawyers in the sense that inmates are the ones who draft their own submissions and pleadings. The system is designed (i.e. it is simple enough) for inmates to act on their own behalf. Obviously, the norms regulating the different proceedings provide for the possibility of being assisted by a lawyer (for example, legal assistance is envisaged in the disciplinary procedure during the prisoner’s oral pleading before the Disciplinary Committee). The problem, however, is that this assistance is to be provided by lawyers of their own choice given that the allocation of a duty-lawyer is not foreseen at this stage (that is, as regards the procedure before the prison Administration). This is clearly a grievance between inmates who can afford a lawyer of their own choice and those who cannot (the great majority). In this context, the Service for Legal Advice in Prison (Servicio de Orientación Jurídica Penitenciaria, SOJP) plays a crucial role. Indeed, prisoners are not officially legally assisted by duty-lawyers, but receive however advice and counsel from the lawyers of the Service for Legal Advice in Prison, which operates in many Bar Associations in Spain. This service is free of charge for prisoners (since it is either subsidised by the Bar Association or is offered voluntarily by lawyers) and consists on the provision of legal advice from lawyers experts in Prison Law. These lawyers hold interviews with inmates in prison every week and answer their questions and doubts. They also help prisoners fill in their requests for a duty-lawyer. However, they do not formally file applications before judicial authorities or the Prison Administration; they solely clarify doubts and provide advice. It is a highly-requested service which, regrettably, is not available in every province in Spain and this is precisely its weakness.

§29 As regards the procedure before the Judiciary, the assistance of duty-lawyers is not foreseen when the inmate first reaches the Judge for Prison Supervision. Assistance by duty-lawyers becomes mandatory only when prisoners lodge appeals before the Courts for Prison Supervision (against a first decision rendered by the Judge for Prison Supervision), Province Courts, Central Courts for Prison Supervision, Criminal Division of the Supreme Court, or Criminal Chamber of the Audiencia Nacional. Once a duty-lawyer is assigned the defence of a particular prisoner, he/she will assume the legal defence in each and every complaint filed whenever the intervention of a lawyer is mandatory. The in-court legal assistance offered by the duty-lawyer lasts for a period of two years since the date of the appointment, and it may be renewed for equal periods if so agreed by the lawyer and the prisoner.

§30 Almost all prisoners (95% according to the Subcomission on prison law of Spain’s General Council of Lawyers) are granted free-legal aid since they earn hardly any money, either because they do not have a job or, if they do, they earn very little. If a prisoner is granted free legal aid they are exempted from paying their duty-lawyers’ fees (as for the costs of the proceedings all prisoners are always exempted from their payment, including that 5% of prisoners who are not granted free-legal aid). The decision for granting free legal aid depends on the legal aid committee present in each Autonomous Community. To apply for legal aid the prisoner must fill in an application form for legal aid authorizing the Autonomous Community to consult their tax data. They usually reply within two months, either granting or denying the requested free legal aid.

The fees for duty-lawyers are set and paid by the legal aid committee of each Autonomous Community (there are 17 Autonomous Communities in Spain). The fees are paid through the Bar Associations. In Madrid the amount paid is 150 Euros for each appeal, minus 15% subject to mandatory tax withholding (though the duty-roaster is VAT free). An extra 20 Euros are assigned for travel expenses to prison.

§31 Prisoners may also pay a lawyer of their own choice, rather than being assigned a duty-lawyer, and the legal costs will then depend on the fees freely fixed by the lawyer. In Spain there are guidelines as regards lawyers’ fees, but they are not binding. Each lawyer can charge what he / she deems appropriate.

§32 Finally, it is to be noted that as far as leaves and conditional release are concerned, there is a lawyer within the technical staff of every Prison who should advice inmates on these issues. Indeed, according to Arts. 281 of the Prison Regulations lawyers working within the Prisons’ legal departments are responsible for handling the criminal and penitentiary situation of every prisoner. They are also responsible for undertaking the legal assessment necessary for ranking inmates as first, second or third degree; which in turn will determine the treatment programme that each prisoner will follow. In addition, lawyers draft and provide the legal justification for the agreements adopted by the Treatment Board. However, besides these assignments, prison lawyers also work as the legal advisers of Prisons, studying all the complaints and appeals in order to defend the Prison before the Judge for Prison’s Supervision. Therefore, the reality is that despite the text of the Law, no inmate seeks for Prison lawyer’s advice as regards their legal situation, since he/she is de facto devoted to the Prison’s legal affairs. In fact, many of the errors present in the spreadsheets for calculating and clearing prison sentences are spotted by the prisoner’s own lawyer or the inmates themselves

Characteristics of the procedure

– speed

§33 Spain’s Courts are generally clogged up, and the Courts for prison supervision are no exception; this negatively impacts the speediness of the proceedings. The procedure that follows since the first inmate’s request until the last appeal Court renders its final decision and notifies it to the Prison may last, on average, from 6 to 8 months.

§34 Given the slowness of justice some of the measures lose their purpose when the judicial decision is finally rendered (for example, it sometimes happens that when finally the Judge for prison supervision authorises a visit the prisoner has already been released). More human means and financial resources are needed to help lighten the work load that Courts in Spain face. Specifically as regards the Courts for prison supervision, it has been suggested that it would be helpful to filter complaints on fundamental and serious issues from those on superficial matters.

– contradictory

  1. §35 As regards the procedure before the Prison Administration:

    Inmates do not physically appear before the Prison Director, they just submit their written request / complaint. There is an exception as regards the disciplinary procedure, which offers inmates the possibility to appear and plead orally what they deem appropriate for their defence before the Disciplinary Committee. In practice, however, prisoners do not usually make use of this possibility and prefer to submit a written Statement.

  2. §36 As regards the procedure before the Judiciary:

    Inmates appear exceptionally before the Judge for Prison Supervision upon the Judge’s request. It is not the general rule, but the exception and it is done mainly through videoconference

– Establishment of the facts

§37 The burden of proof may turn up to be excessive for inmates who claim to have been subjected to acts of ill-treatment, particularly as regards the access to evidence when they report mistreatment by Prison Officers. Indeed, the delivery to inmates who request the injury report drawn up by the prison medical staff continues to be an issue of concern for the Spanish Ombudsman, as well as the lack of receptiveness by the Prison Administration as regards the photographic documentation of injuries sustained in prison. Further, the Ombudsman believed it necessary to remind that it is not up to the Prison Administration to decide in which cases allegations of mistreatment must or must not be notified to the judicial authorities. Rather, the criterion is that in all cases in which an injury report is drawn up in prison, the Judge for Prison Supervision must be informed within the shortest delay possible so that, if deemed necessary, the appropriate proceedings may be pursued. Indeed, as established by Article 262 of the Criminal Procedure Act whenever medical services treat an inmate who discloses injuries (whether injuries are due to the application of coercive means or internal fights or self-harm, or whether they were already present at the time of his imprisonment or transfer from another prison), the medical staff must systematically draw up a report and submit it to the competent judicial authority. In addition, the report of the testimony received should be more detailed and reasoned (i.e. more in line with the so-called Istanbul Protocol). Lastly, it would also be desirable that once a prisoner files a complaint for acts of ill-treatment, the Prison is monitored to see whether it adopts measures of retaliation against the prisoner (such as limitation of the number of outside walks in the yard, changes of prison cells, visit restrictions, etc.)

§38 In the disciplinary procedure the burden of proof cannot be transferred to the inmate in any case. Two Constitutional Court’s Judgments (SSTC 86/1995, 175/2000) have recognized the right to the presumption of innocence among the guarantees applicable ex art. 24. 2 CE to the disciplinary procedure in prisons. This implies on the one hand that the burden of proof falls on the Prison Administration, and on the other, that it is absolutely prohibited the use of evidence obtained through the violation of a fundamental right. Notwithstanding these guarantees, the truth is that the level of rigurosity as regards the evidentiary activity in the disciplinary procedure is not the same as in criminal proceedings. In disciplinary procedures within prisons is common to find evaluations of elements that have not been minimally examined (for example, if an inmate is found with a pill that is said toxic, and therefore prohibited, no chemical analysis is carried out, not even a medical report stating the effects is enclosed)

Powers of the judge

§39 Judicial authorities impose those measures which the judge considers appropriate depending on the circumstances of the case: transfer to another prison, authorisation of communications and leaves, but also ordering that a cataract surgical operation takes place, etc.

§40 As a general rule judgments are respected and enforced since public administrations (including the Prison administration) are obliged to implement the Courts judgments. Only exceptionally, appeals must be filed complaining of the Prison’s failure to obey a court order.

The measures imposed by the Judges for Prison Supervision cannot address structural problems they can only address the particular situation of the prisoner-claimant

– preventive remedies

§41 There are few “purely” preventive measures and can be summarised as follows:

  1. Request a transfer of cell, or module or even prison for fear of conflicts with other inmates.
  2. Request to be put in isolation as a self-protection measure pursuant to Art. 75.2 RP if the inmate fears for his / her life given that under this regime prisoners don’t share cells, nor lunch time and they go out to the courtyard for a walk with just one other inmate
  3. Activation of the Suicide Prevention Protocol. It is not the inmate who requests it, but rather depends upon the criteria of the medical team and the Treatment Board, if they consider that an inmate is inclined to inflict self-harm or attempt suicide.
  4. Request participation in the mediation programmes available for prisoner. It is not, however, available in every prison in Spain, rather it is up to Prison Directors to allow the implementation of such programme within the facilities under their supervision
  5. Prevent the immediate implementation of a disciplinary sanction. Generally, sanctions imposed by the Disciplinary Committee shall be implemented immediately once the five-day period for filing complaints before the Judge for Prison Supervision has elapsed without the inmate having filed a complaint (art. 44.3 LOGP). However, if the inmate files a complaint before the Judge for Prison Supervision, the sanction will not be implemented until the judge renders a decision. Still, however, even some sanctions against which a complaint has been filed before the Judge for Prison Supervision may be implemented immediately without having to wait for the Jugde’s decision on the appeal. This is the case of serious acts of indiscipline which need inmediate correction.

§42 One of the main structural problems of Spanish prisons is cell sharing, mainly between two inmates. Indeed, the so-called macro-prisons are already planned and built with bunk beds in each cell so as to host more than one prisoner per cell. If problems of co-habitation occur the Judge for prison supervision can tackle them individually through the application of the remedies afore mentioned or even through the “concession of third degrees” (which corresponds to an open regime or home detention) if the prisoner at issue fulfils the requirements. However, the Judge for prison supervision cannot prevent the construction of macro-prisons, neither alter the design of their cells. In this sense, the powers of the Judge for Prison Supervision can tackle the individual problems that a specific prisoner-claimant may bring to his/her notice, but cannot deal with the underlying structural problems of the Spanish prison system.

– Compensatory remedies

§43 In Spain there is no specific compensatory remedy for prisoners. There is, however, the possibility to claim the State’s pecuniary responsibility for the (bad) functioning of the Judicial Administration (“reclamación de responsabilidad patrimonial por el funcionamiento de la Administración de Justicia”). This is a general (i.e. not just exclusively for prisoners) remedy consecrated in Article 121 of the Spanish Constitution. It is an administrative procedure initiated by the applicant through the filing of a written request directly before the Ministry of Justice. The procedural steps are regulated by the general rules governing the liability of the State (Articles 139 et seq of the Law on the Legal Regime of Public Administrations and Common Administrative Procedure, and the Royal Decree 429/93 of 26th March). The decision adopted by the Ministry of Justice brings to an end the administrative stage of the proceedings, yet against such decision an appeal (“recurso de reposición”) can be lodge or proceedings can be directly initiated before the litigious-administrative court (recurso contencioso-administrativo)

§44 The Organic Law on the Judiciary (Articles 292-296) establishes three legal grounds for claiming compensation: (NOTE: In all these three scenarios, there ought to be a causal -direct, immediate and exclusive- relationship between the actions of the judiciary and the damage claimed. The right to claim compensation shall lapse one year)

  1. The existence of a judicial error owing to the adoption of judicial decisions not consistent with the law, either for the misapplication of the legal rule, for the wrong assessment of the facts, or the omission of essential evidence. Prior to the filing of a request claiming compensation before the Ministry of Justice, it is necessary to obtain a court decision expressly acknowledging the existence of a judicial error.
  2. Irregularities in the administration of justice: for example, undue delays in judicial proceedings, loss or damage of assets under the custody of judicial bodies, etc.
  3. Undue remand custody: a person who has been unduly remanded in custody is entitled to compensation for the harm caused to him due to his unnecessary stay in prison if he meets the requirements set out in Article 294 of the Organic Law on the Judiciary. Under this provision, the State is liable for the harms caused by detention on remand if detainees have been acquitted on the grounds that the alleged offence did not exist. This provision was interpreted by the Spanish Supreme Court as meaning that the State was liable if detainees managed to prove either that the alleged crime did not exist or that they had not committed it. The State was not deemed liable, by contrast, when detainees had been acquitted by virtue of the principle of the presumption of innocence but there was actually no certainty about their innocence (See, for example, judgments of the Spanish Supreme Court of 28 September 1999 (rec. 4712/1995) and 27 January 2003 (rec. 7928/1998). These requirements limit the right to compensation and do not seem to be in line with the ECtHR jurisprudence, which already condemned Spain for these reasons in Tendam v. Spain

    The amount of compensation depends on the time remanded in custody and on the personal and family consequences this deprivation of liberty entailed.

Procedures regarding disciplinary issues

§45 The disciplinary regime refers to the prohibited conducts in prison and the penalties provided for. It applies to both convicted and remand prisoners except those who are admitted to psychiatric facilities (art. 188 Prison Regulations, RP hereinafter).

§46 Disciplinary measures are directed exclusively to the restoration of order (art. 41 LOGP); they must be strictly proportional to the intended purpose, as reminded by the Constitutional Court in its judgment STC 62/1982; and their implementation will last the time strictly necessary.

§47 Offences are classified as very serious, serious and minor. The very serious offences are listed in art. 108 RP; serious offences are listed in art. 109 RP; and minor offences are listed in art. 110 RP

§48 As for the applicable penalties, they are set out expressly in art. 233 RP:

  1. Solitary confinement not exceeding 14 days. When several serious offences have taken place at the same time, solitary confinement can be imposed for 21 days (art. 235.1 RP) up to a maximum of 42 days (art. 236.2 rp). Yet, the approval of the Judge for Prison Supervision is required whenever the Prison Administration proposes solitary confinement for a period greater than 14 days. The judge must also state whether the sanctions should be applied consecutively or at reasonable intervals. If this sanction is imposed, prisoners are locked in a cell twenty-two hours a day and may only enjoy two hours walk in the yard on their own. The United Nations Committee against Torture has urged Spain to place a total ban on solitary confinement of more than 15 days (See CAT/C/ESP/CO/6 p. 5 § 17)

    The disciplinary sanction of solitary confinement cannot be applied to pregnant or nursing women up to six months after termination of pregnancy, or those accompanied by children (art. 2532RP). Neither can this disciplinary sanction be applied to prisoners convalescent from serious illness (art. 254.2 RP)

  2. Solitary confinement for up to 7 weekends, starting on a Saturday at 16:00 until Monday at 8:00

  3. Withdrawal of exit permits (leaves) for a period which may not exceed two months (Spain, unlike other neighbouring countries, continues to envisage the withdrawal of exit permits as a disciplinary sanction; even though its legitimacy is disputed given that exit permits are an important aspect of the prisoner’s re-socialising process)[26]

  4. Limitation of oral communications to the regulatory minimum time for a maximum period of one month

  5. Deprivation of collective walks and recreational activities, as long as it is compatible with the prisoner’s physical and mental health, for a maximum period of one month.

  6. Warnings

§49 The imposition of disciplinary sanctions different in nature to those listed in art 233 RP is strictly prohibited in application of the principle of legality.

The determination of the disciplinary sanction and its duration shall take into account the nature of the offence, the seriousness of the damages caused, the state of execution, the degree of participation and guilt, and other concurrent circumstances.

Disciplinary authorities

§50 The main disciplinary authority within Prison is the Disciplinary Committee (“Comisión Disciplinaria” regulated in arts. 276 y 277 RP). This committee meets at least 4 times a month and consists of the Prison Director, the Deputy Director on regime, the Deputy Director for security, the prison lawyer, a Head of Services, and an officer.

§51 The Treatment Board has also a say since it can ask through a motivated resolution filed before the Disciplinary Committee for the suspension or reduction of a disciplinary sanction if the Board believes that compliance with the sanction at issue would be a setback in the rehabilitation and social reintegration of the inmate. Nevertheless, if in the imposition of the sanction the Judge for Prison Supervision has intervened, either directly or by way of appeal, the reduction or suspension may not be made without its authorization (art. 256.3 RP)

§52 As for the Prison Director, it is the authority in charge of initiating the disciplinary procedure. In addition, the Prison Director also decides the imposition of sanctions as regards minor offences through the shortened procedure. Indeed, there exists a shortened procedure regulated in art 251 RP and especially providing for the sanctioning of minor offences. According to it all proceedings, including the gathering of evidence, must take place within a period of not more than one month. In this case, it is not the Disciplinary Committee, but the Prison Director the one in charge of deciding the imposition of the sanction.

§53 As regards the Judge for Prison Supervision, all sanctions imposed may be appealed by the sanctioned inmate before this judicial authority within five working days. The control exercised by the Judge for Prison Supervision is both substantive and formal in the sense that the Judge controls not only whether the procedural guarantees have been observed, but also the adequacy between the sanction imposed and the sanctioned conduct.

Remedies

The disciplinary procedure within Prison

§54 It is the Prison Director who initiates the disciplinary procedure through a reasoned decision whenever he/she considers there exists enough evidence that an offence entailing a disciplinary sanction has been committed. The commission of an offence may be brought to the notice of the Prison Director via one of the following means (art. 241 RP):

  1. Through a briefing given by a prison officer. These briefings must include a heading (identifying the officer who subscribes the report, the department or location where the incident occurred and the date and time), a brief account of the facts and circumstances, as objectively as possible without personal assessments, the name or names of the people involved in the incident, and finally it should describe the measures which have been adopted, if any (i.e.: coercive means, medical assistance, removal of objects and personal belongings…).
  2. Through a reasoned request made by any other member of the working staff who is not a prison officer (i.e. police in charge of transferring inmates to and from the courthouse or other prisons, etc.)
  3. Through a written report filed by any person (for example another inmate) who must identify him/herself, include a statement of the facts, the date on which the offence is alleged to have happened and any details that will help to identify the perpetrators
  4. Through an order issued by a high-ranking administrative body, like for example Deputy Directors.

§55 Prior to the initiation of the disciplinary sanction procedure, preliminary proceedings may be instigated for the purpose of ascertaining whether the consistency of the facts justify its initiation. A prison officer appointed by the Prison Director will carry out these preliminary proceedings and shall submit a written account of his/her findings. These preliminary proceedings will always take place when it is another inmate who reports the commission of offences (art. 245.2). This mechanism is an effective means of avoiding the initiation of a disciplinary sanction procedure that lacks basis or substantiation.

§56 Once the preliminary proceedings come to an end, the Prison Director appoints a prison officer as the instructor of the disciplinary inquiry. This prison officer must be a different person to the one who carried the preliminary proceedings, must not have been involved in the incidents leading to the opening of the procedure and must not be part of the Disciplinary Committee. The instructor, in the light of the evidence found, makes a Statement of Objections (“pliego de cargos”) which is then sent to the inmate whose conduct is alleged to constitute a disciplinary offence. This Statement of Objections shall include the following:

  1. Identification of the inmate

  2. Identification number and the workplace of the instructor

  3. Competent authority for the settlement of the procedure

  4. Detailed account of the facts. This information enables the inmate to defend him/herself. However, more than often, the facts are described with simple phrases such as “he insulted an officer”, “possession of prohibited items”.

  5. Legal classification of the relevant facts, indicating the exact article where they may be subsumed, as well as the sanction that may be imposed, when appropriate, and the applicable legal provision.

  6. Indication that the inmate has three working days (Sundays and public holidays are not counted) from the day of the receipt to submit either in writing a preliminary Statatement of Disclaimers (“pliego de descargos”) or to express his/her intention to plead verbally before the instructor. The inmate can allege all that he/she deems appropriate and can suggest the type of evidence he/she deems necessary for his/her defence.

    If the inmate does not request the practice of exculpatory evidence, the evidence of guilt proposed by the instructor is simply accepted as long as he/she ratifies his Statement of Objections. Hence, the instructors’ Statement enjoys a presumption of validity. If any of the evidence requested by the inmate is not admitted, either because it was considered inappropriate or unnecessary, the refusal must be motivated in writing.

    In the disciplinary procedure the burden of proof cannot be transferred to the inmate in any case. Two Constitutional Court’s Judgments (SSTC 86/1995, 175/2000) have recognized the right to the presumption of innocence among the guarantees applicable ex art. 24. 2 CE to the disciplinary procedure in prisons. This implies on the one hand that the burden of proof falls on the Prison Administration, and on the other, that it is absolutely prohibited the use of evidence obtained through the violation of a fundamental right.

    Notwithstanding these guarantees, the truth is that the level of rigurosity as regards the evidentiary activity in the disciplinary procedure is not the same as in criminal proceedings. In disciplinary procedures within prisons is common to find evaluations of elements that have not been minimally examined (for example, if an inmate is found with a pill that is said toxic, and therefore prohibited, no chemical analysis is carried out, not even a medical report stating the effects is enclosed)

  7. Indication of the possibility of seeking legal advice, but also advice from a prison officer or from any other person the inmate appoints for the handling of the procedure, including the drafting of his/her Statement of Disclaimers.

    In this regard, the Judges for Prison Supervision recommend the presence of lawyers before the Disciplinary Committee for the defence of inmates’ rights (Criterion 70, JVP’s meeting January 2003). However, the Constitutional Court has had the occasion to point out (STC 74/1985 and STC 92/2003) that “legal advice should be allowed in the form and degree proportionate to the offence, sanction and procedure”. Therefore, the right to legal advice is not envisaged at this point as a “full right” in the sense that it does not necessarily encompass free-legal aid. Following this reasoning neither is it to reproach unconstitutionality if the Prison Administration turns down the appointment of a duty-lawyer (obviously, communications with a lawyer of his/her choice cannot be barred). This interpretation advanced by the Constitutional Court means in practical terms that only those inmates with enough economic means end up taking advantage of legal advice. However, it is at this point where the Service for Legal Advice in Prison (“Servicio de Orientación Jurídico Penitenciaria”) plays a very important role given that this service provides, free of charge for prisoners, legal advice from lawyers experts in Prison Law (they, however, do not file appeals before the Judge for Prison Supervision, they just provide advice). Regrettably, this Service is not available in every province in Spain. Prison lawyers, according to the text of the law, could also advice inmates. In practice, however, they are rarely consulted since they advice the Prison Administration during the disciplinary procedure.

  8. If the inmate concerned is a foreigner who does not master the Spanish language, he/she has the possibility of being assisted by a prison officer or by another inmate who can act as a a translator

§57 10 days after the evidence deemed relevant has been practiced, the inmate must submit his/her final Statement of Disclaimers. Once submitted, the instructor will close the disciplinary inquiry and will draft a motion for resolution, which will be filed (along with all the other documents produced so far) both to the Disciplinary Committee and the inmate (with indication of his/her right to plead orally before the Disciplinary Committee, art. 245 RP).

§58 The Disciplinary Committee during its first ordinary meeting or a special meeting held for that purpose, will hear the oral arguments, if any, made by the inmate. Subsequently a decision shall be adopted, either to discontinue the proceedings or to impose the corresponding sanction. The Disciplinary Committee must issue this resolution within a maximum period of three months from the initiation of the disciplinary procedure. Elapse of this three-month period shall result in the expiry of the procedure if within thirty days no resolution is adopted and notified (246.2 RP). In this case, the proceedings shall be filed with no further action.

§59 If a sanction is agreed, its imposition must be motivated. Indeed, as noted by the Constitutional Court, the total lack of motivation of the sanctioning agreement adopted by the Disciplinary Committee violates the inmate’s fundamental right to defence established in Article 24 of the Spanish Constitution.

§60 The notification to the inmate of the agreed sanction shall be done on the same day or on the next day following its adoption by the Disciplinary Committee. Together with the submission of a copy of the full text of the sanctioning agreement, the Prison Administration shall also indicate to the inmate the possibility he/she has of lodging a complaint before the Judge for Prison Supervision within five working days (art. 248 RP). Irrespective of whether the inmate files or not a complaint before the Judge for Prison Supervision, the Prison Administration must submit to this judiciary authority a copy of the sanctioning agreement adopted by the Disciplinary Committee along with all the documents produced on this respect by the Prison Administration and the sanctioned inmate. It is important to note that in these cases the Judge for Prison Supervision does not approve or reject the imposition of a sanction; the Judge is merely notified. Yet, there is an exception to this mere notification when it comes to the implementation of solitary confinement exceeding 14 days. In this case, the approval of the Judge for Prison Supervision is a prerequisite for its imposition and subsequent implementation (that is, until the Judge’s approval the sanction at issue does not exist from a legal point of view).

§61 The sanction imposed by the Disciplinary Committee shall be implemented immediately once the five-day period for filing complaints before the Judge for Prison Supervision has elapsed without the inmate having filed a complaint (art. 44.3 LOGP). If, however, the inmate has filed a complaint before the Judge for Prison Supervision, the sanction will not be implemented until the judge renders a decision. Nevertheless, even some sanctions against which a complaint has been filed before the Judge for Prison Supervision may be implemented immediately without having to wait for the Judge’s decision on the appeal. This is the case of serious acts of indiscipline which need immediate correction.

§62 Notwithstanding this possibility, the Judges for Prison Supervision strongly recommend the implementation of the appealed sanctions only in very exceptional circumstances (performance criteria 104, JVP Summit 2008) as a means of ensuring the effectiveness of the appeal’s outcome. To this end, they recommend appeals to be lodged “on open” (i.e. in an open envelope send from prison) and with an indication that it is the appeal against the disciplinary sanction.

§63 This is as far as the text of the law goes. As for the effectiveness of all these guarantees, the European Committee for the Prevention of Torture has positively reported that “the prisoners are able to benefit, in practice, from the formal safeguards surrounding the disciplinary procedure (notably, the requirement that proceedings be served on prisoners in writing; the possibility to be assisted by a third party, including a lawyer; the possibility to present evidence and the requirement that a decision declaring evidence inadmissible be motivated; the possibility to appeal)”[27]

The disciplinary procedure before the Judge for Prison Supervision

§64 The procedure for appealing before the Judge for Prison Supervision the imposition of sanctions by the Disciplinary Committee is very similar to the procedure for complaints and requests already detailed in previous sections. The main difference is the five day period (instead of 30 calendar days) within which inmates must lodge their appeal before the Judge for Prison Supervision.

procedures regarding disciplinary issues - Spain

§65 Prisoners may appeal within five days the imposition of a sanction by the Disciplinary Committee through an action of complaint (“recurso de queja”) before the Judge for Prison Supervision on their own behalf, without the assistance of a lawyer. When the Judge for Prison Supervision receives the action of complaint raised by the prisoner, he asks the Prison for reports and forwards all to the Public Prosecutor. The judge through an indictment either rejects or upholds the action of complaint and must reason the decision. If rejected, the prisoner has 3 options:

  1. Within three days, the prisoner may bring an action for reform “recurso de reforma” within three days before the Judge for Prison Supervision. Once this appeal is received in court, the same procedure as with the action of complaint is followed: the documents are forwarded to the Public Prosecutor so that he / she may take into consideration the prisoner’s allegations. The prosecutor issues a report and refers back to the Judge for Prisons’ Supervision, who settles on the issue by an indictment. If the Judge dismisses the application once again, the prisoner has 5 days to file an appeal “recurso de apelación” before the Judge for Prison Supervision, who transfers the appeal to the Province Court. At this point, prisoners send a written request for a lawyer (since a lawyer’s signature formalizing appeals “recurso de apelación” is mandatory).
  2. Within 5 days, the prisoner may lodge a direct appeal “recurso directo de apelación” straight before the Province Court. This direct appeal must be formalized by a lawyer (a barrister “procurador” is however not needed). If the prisoner has not fulfilled this requirement, the court itself asks the bar association to appoint a duty-lawyer, who will then have five days to formalize the appeal.
  3. Within 3 days, the prisoner may bring an action for reform and subsidiary appeal “recurso de reforma y subsidiario de apelación”. The action for reform needs not be signed by a lawyer and usually prisoners submit this document on their own handwriting. However, prisoners must at this point already indicate whether they would like to be assigned a duty-lawyer in case the action for reform is dismissed and the subsidiary appeal is then lodged. The way of proceeding is always the same: the judge receives the action for reform, requests reports to prison, and refers the case to the Public Prosecutor who in turn issues a report. The Judge by indictment either rejects or upholds the action for reform. If rejected, an appeal “recurso de apelación” signed by a lawyer is brought before the Province Court within three days.

§66 Once all the lawyer’s allegations are handed to the Province Court, the date for the final deliberation and rendering of decision is specified. The duration of the judicial complaint procedure that follows since the first inmate’s request until the Province Court renders its final decision and notifies it to the Prison may last, on average, from 4 and a half months to 6 months. It is free of charge since the costs of prosecution are waived officially and the majority of prisoners are often granted free legal aid (though they may also opt for a private attorney).

Prisoners’ rights protection and early release / alternative measures’ procedures

Conditional release/parole:

§67 Parole or conditional release (“libertad condicional”)[28] is the final stage in the execution of a sentence. It allows prisoners to be released before the end of their prison sentence upon the condition not to re-offend and upon the condition to comply with the rules of conduct imposed by the Judge for Prison Supervision. During this time the person is under the supervision of the Prison’s Social Service (external), under the General Directorate of Territorial Coordination and Open Environment (“Dirección General de Coordinación territorial y medio abierto”). For an individual to enjoy parole he/she must be classified as a third category prisoner, must have at least served three-quarters of the sentence, and must have a record of good conduct and an individually established favourable prospect of social reintegration. The abovementioned circumstances shall not be deemed fulfilled if the offender has not satisfied civil liability.

Procedure for granting parole:

§68 When the conditions legally required are met, the Treatment Board shall initiate ex officio the procedure for granting parole with time enough for assuring that its concession will not suffer delays (art. 194 RP); in practical terms this means that it is usually initiated 3 or 4 months before ¾ of the prison sentence are served.

§69 The dossier which the Treatment Board must come up with must contain the following documents (art. 195 RP):

  1. Testimony of the judgments handed down and the actual amount in days which the inmate has to serve in prison (known as “hoja de liquidación de condena”)
  2. Certificate providing evidence of any prison benefits
  3. Social Integration Forecast Report (“Informe Pronóstico de Integración Social”) in accordance with the provision of art. 67 LOGP
  4. Summary of the inmate’s criminal and prison conditions, stating the dates of the inmate’s continued detention, the fact that he/she has already served three-quarters of the sentence and the release date. The Summary must also state any temporary leaves enjoyed.
  5. An Individualised Programme for Probation (“Programa individual de libertad condicional”) and a monitoring plan for it.
  6. An act of commitment for hosting the inmate issued by the family, a closed friend or a social institution
  7. Inmate’s declaration stating in which town he/she plans to establish his/her residence and the acceptance of custody and control by a worker of the Social Services
  8. Inmate’s declaration stating his/her work or source of livelihood outside prison or, in the event of not having one, report drafted by the Social Services on the inmate’s working possibilities.
  9. Literal Transcription of the Treatment Board agreement to initiate the parole procedure

§70 Once the dossier is completed, the Prison Administration must submit it to the Judge for Prison Supervision before the inmate serves three quarters of his/her prison sentence. Usually these deadlines are met when the offender is already in a “third degree” regime. If, however, the progression to this regime is delayed, the proceedings for probation are also delayed. In this case (and if all the other requirements for probation are met) the inmate may file an action of complaint before the Judge for Prison Supervision, who will ask the Prison Administration to justify the reasons for the delay and then decide as appropriate (art. 66.2 LOGP)

§71 When the deadlines are met and once the Judge for Prison Supervision has the completed dossier, the judicial authority refers it to the Public Prosecutor and after receiving his/her observations, decides on it. The Judge’s resolution shall be in the form of an indictment. If the Judge for Prison Supervision agrees to parole, the inmate will be released on the approved date. If the Judge denies parole, the inmate will continue to serve his/her penalty in prison until the date for his/her definitive release. However, the Treatment Board may revisit the inmate’s situation and propose him/her for parole again before the Judge for Prison when deemed appropriate.

§72 Appeals against the Judge for Prison Supervision’s decision on parole are lodged before the las trial court (not the Province Court). When appealing, defence lawyers frequently plead the lack of a sufficiently reasoned decision, the abuse of Standard Forms, the errors identified in Prison reports, and often provide many documents to attest good behaviour (for example: diplomas, record of praiseworthy acts, participation in workshops, certificate attesting the prisoner’s participation in a programme to support inmates with an increased risk of suicide, certificate proving that their family are enrolled in the municipal register, guarantees and endorsement from either institutions or family members that host them during previous Prison’s leave, employment contract if any, letters of recommendation, etc.).

§73 Besides the afore detailed procedure, Judges for Prison Supervision can also directly authorize parole without the need for an administrative dossier when the inmate’s personal file (a copy of which is available at the judicial institution) appears to meet the requirements for parole. This way of proceeding is a criterion (criterion Nº. 57 RJVP) agreed by the Judges for Prison Supervision during one of their annual meetings. It is however, an exceptional measure which is has been so far applied only by some Judges for Prison Supervision.

§74 It is to be noted that at the stage of sentence implementation, two judicial authorities are involved: the Judge for Prison Supervision (as regards conditional release) and the criminal execution judge (as regards the suspension of the prison sentence). The criminal execution judge is the authority to whom the suspension of the enforcement of the prison sentence is requested if the sum of all the penalties imposed by the judgment does not exceed two years in prison, there is no criminal record and the civil liability derived from the offence has been satisfied (Art. 80 et seq. of the Criminal Code). The suspension of the prison sentence can also be requested in case of drug addiction or incurable diseases. In addition, before this judge, it can also be requested the replacement of prison sentence with a fine or community service. The criminal execution judge is also responsible for calculating the actual amount in days of the prison sentence (“hoja de liquidación de condena”) once the time spent on remand is deduced, for example.

§75 Another judicial authority ends up also being involved, in an indirect way: the last trial court. Indeed, the appeals against the decisions of the Judge for Prison Supervision on the denial or granting of conditional release are filed before the last trial court.

§76 No problems of partiality have been detected based on the Judge for Prison Supervision being the same authority competent for the protection of prisoner’s rights and for monitoring the lawfulness of the concession or rejection of parole. And if that was the case at some point, the decision adopted by this authority may still be appealed against a superior organ

Concrete state of the protection of prisoners’ rights

General remarks:

§77 Spain’s prison system is a system of guarantees in the sense that there is a lot of judicial control. Indeed, the Judge for Prison Supervision is the most frequently used and trusted remedy. The Judge for Prison Supervision receives around 18 new complaints every day[29] and doesn’t have enough means to work on them properly. They receive complaints on fundamental issues as well as complaints on superficial questions. They need however to study all of them and usually don’t have time enough to do in-depth analysis and to give good motivations. It has been suggested that in order to avoid the clogging up of the judiciary it would be useful to have a sort of filter enabling the discrimination of complaints regarding human rights violations and further serious issues from those regarding other domestic or minor matters.

§78 Human rights violations related to abuses or ill-treatment inside the prison are not generalised, but they are an exception. Complaints about ill-treatment in prison are almost non-existent today. The main reasons for this are the greater control that exists inside prisons through the use of cameras and the prison system itself, which is considered to offer many guarantees. On the other hand, however, it could also happen that the absence of complaints reporting ill-treatment be due to prisoners fearing the consequences of reporting ill-treatment or prisoners not trusting the system. Given that security officials and the prison physician enjoy a presumption of truthfulness, it could happen that prisoners would not expect judges to conduct a thorough research about their complaints. It is thus very difficult to ascertain the underlying reasons for complaints on ill-treatment being scarce.

§79 There is no empirical evidence to proof that prisoners who have reported human rights violations or ill-treatment have suffered physical and/or psychological pressures by prison officers. However, Prison Law lawyers do recognize that inmates who file many complaints are placed in disadvantage by the Prison and/or the officers. For example, some prisoners who frequently denounce are ranked first grade on the grounds that they do not fit the ordinary regime of prison life and hinder the normal functioning of prison. Therefore, prisoners who dare to speak out the most are those prisoners serving long sentences; that is, those who installed in the sociological term “learned helplessness” (“indefensión aprendida”) consider that their prison situation cannot deteriorate and are thus indifferent to the consequences that may arise from their constant complaints.

§80 One of the problems spotted in the interview with the NMPT mechanism of the Spanish Ombudsman was the fact that the complaint that reaches such institution cannot be anonymous. This restrains many prisoners from filing a complaint on ill-treatment before that organism.

§81 Finally, other issues of concern, include: i.) the living conditions in a “closed regime” (regimen cerrado) of those ranked as “first grade prisoners” (primer grado), like for example: daily body searches (at times including strip searches) and daily cell’s inspection or the limitation to three hours’ walk in the yard with just one more inmate; ii.) the situation of mentally ill inmates in normal prisons, not in special health centres, and the scarcity of psychiatrics; iii.) the lack of specific treatment in prison in connection with the crime for which the person has been convicted, which it negatively impacts rehabilitation; iv.) the transfer of prisoners handcuffed and without seat belts in vehicles known as kangaroos; v.) the possibility of applying solitary confinement for more than 15 days, disregarding the recommendation urged by the United Nations Committee against Torture (See CAT/C/ESP/CO/6 p. 5 § 17); vi.) the standardised practice of cell sharing and the problems of cohabitation it entails; vii) and the situation of disadvantage of foreigners in Spanish prisons.

Procedural guarantees:

§82 Given that in Spain there is no Prison Procedure Law (there was a project but it was finally not adopted) in practice Judges for Prison Supervision have currently a very important role and establish ad hoc criteria. For example, as far as time-limits are concerned, a mixture between the administrative and the criminal procedure is being used. The main problem is that these criteria are not mandatory and their real enforcement depends on each individual judge. In practice, it has been noticed that there are big differences from one judge to another and inmates are actually aware of it and are also aware that their requests and complaints will have a different result depending on the Judge for Prison Supervision in charge of their case. In view of this lack of uniformity and predictability it can be said that, to a certain degree, the Spanish penitentiary procedural system suffers from legal uncertainty.

§83 The absence of a clear direct access to the Judge for Prison Supervision is of a particular concern as regards complaints on ill-treatment (it is to be noted that this kind of complaints are then forwarded to criminal judges). Although some Judges for Prison Supervision have accepted direct complaints from inmates (that is without them having previously filed their complaints within prison), most of them consider it is mandatory, in application of general administrative law provisions, to previously file any petition within prison and thus consider it as a necessary pre-requisite to be satisfied before appealing to the judiciary. It could thus be said that the external system of legal remedies for prisoners as regards ill-treatment lacks to a certain extent clearness and confidentiality and it is not direct

§84 The lack of specific compensatory remedies for prisoners needs to be pointed out. In addition to the claim for compensation for damaged caused by judicial error or to compensation for the irregularities in the administration of justice a person who has been subject to pre-trial detention is entitled to compensation for the harm caused to him due to his unnecessary stay in prison if he meets the requirements set out in Article 294 (1) of the Organic Law on the Judiciary. Under this provision, the State is liable for the harms caused by detention on remand if detainees have been acquitted on the grounds that the alleged offence did not exist. This provision was interpreted by the Spanish Supreme Court as meaning that the State was liable if detainees managed to prove either that the alleged crime did not exist or that they had not committed it. The State was not deemed liable, by contrast, when detainees had been acquitted by virtue of the principle of the presumption of innocence but there was actually no certainty about their innocence (see, for example, judgments of the Spanish Supreme Court of 28 September 1999 (rec. 4712/1995) and 27 January 2003 (rec. 7928/1998)). These requirements limit the right to compensation and do not seem to be in line with the ECtHR jurisprudence, which already condemned Spain in Tendam v. Spain for these reasons.

§85 Finally, the access to legal aid during the procedure before the Prison Administration could and should be enhanced. In this sense, it would be desirable that the Service for Legal Advice in Prison is accessible in each and every prison in Spain (for the time being there are provinces where this service is not available).


[1] Secretaría General de Instituciones Penitenciarias http://www.institucionpenitenciaria.es/web/portal/centrosPenitenciarios/localizacion.html?ep=&ept=pen&epp=

[2] Direcció General de Serveis Penitenciaris de Catalunya

http://justicia.gencat.cat/ca/ambits/reinsercio_i_serveis_penitenciaris/serveis_penitenciaris/els_centres_penitenciaris/

[3] Data provided by SPACE I Project http://wp.unil.ch/space/space-i/prison-stock-2014-2015/

[4] In 2011 the number of persons imprisoned in centres under the jurisdiction of the Central Administration stood at 62,300, for an official capacity of 55,421, which meant an occupancy level of 112 percent. As regards Catalonian prisons, the total population stood at 10,857 for an official capacity of 9,656 See CPT/Inf (2013) 6, pp. 29 and 58

[5] As of November 2015 the total prison population in Spain (including both prisoners on remand and convicted prisoners) amounts to 62,925 inmates (53,986 inmates are serving their prison sentence in prisons run by the General Administration and 8,939 prisoners are held in Catalonian prisons)

Secretaría General de Instituciones Penitenciarias http://www.institucionpenitenciaria.es/web/portal/administracionPenitenciaria/estadisticas.html

[6] Secretaría General de Instituciones Penitenciarias http://www.institucionpenitenciaria.es/web/portal/administracionPenitenciaria/estadisticas.html

[7] The so-called macro-prisons have a minimum of 1008 cells (ranging from 10 to 13 m2). However, already at the time of their design and construction, they are equipped with bunk-beds and the reality is that they hardly ever host just one inmate. Therefore, macro-prisons, as a matter of truth, double their operational residential capacity and host around 2000 inmates.

Council of Europe Annual Penal Statistics-SPACE I Prison Populations, Survey 2013, Final Report, p. 58

[8] See: Defensor del Pueblo. Informe Anual para las Cortes Generales 2013, pp. 132 et seq.

https://www.defensordelpueblo.es/es/Documentacion/Publicaciones/anual/Documentos/Informe_2013.pdf

Inmates serving their prison sentence in the so called first category regime or subject to the isolation sanction or the programme for auto protection–art. 75 GPOA- are the exception and are always placed in individual cells)

[9] http://ec.europa.eu/eurostat/statistics-explained/index.php/Crime_statistics#Total_recorded_crime

[10] http://www.gencat.cat/justicia/estadistiques_serveis_penitenciaris/1_pob.html

[11] SPACE I Project http://wp.unil.ch/space/space-i/prison-stock-2014-2015/

[12] According to Article 25.2 of the Spanish Constitution rehabilitation and reintegration are the driving principles of the Spanish criminal system

For a more detailed discussion on the measures adopted See Alejandro Forero Cuéllar, Observatori del Sistema Penal i els Drets Humans http://www.ub.edu/ospdh/

[13] See CPT/Inf (2013) 6, p. 29

Large prisons involve a significant investment in buying about 30- 35 hectares of land (located far from population centres) and in designing, building and equipping the prison. This is done by an agency (Sociedad Estatal de Infraestructuras y Equipamientos Penitenciarios, SIEP) under the General Secretariat for Prisons, which was created in 1992.

[14] Council of Europe Annual Penal Statistics SPACE I – Prison populations, Survey 2013, Final Report p.148

[15] In neighbouring countries, like France, sentences within this year range drop down to 9.6%. Ibídem, p. 111

[16] Secretaría General de Instituciones Penitenciarias

http://www.institucionpenitenciaria.es/web/portal/documentos/estadisticas.html?r=m&adm=TES&am=2014&mm=12&tm=GRAD&tm2=GENE

[17] Data provided by SPACE I Project http://wp.unil.ch/space/space-i/prison-stock-2014-2015/

[18] In 2011 the number of persons imprisoned in centres under the jurisdiction of the Central Administration stood at 62,300, for an official capacity of 55,421, which meant an occupancy level of 112 percent. As regards Catalonian prisons, the total population stood at 10,857 for an official capacity of 9,656 See CPT/Inf (2013) 6, pp. 29 and 58

[19] The so-called macro-prisons have a minimum of 1008 cells (ranging from 10 to 13 m2). However, already at the time of their design and construction, they are equipped with bunk-beds and the reality is that they hardly ever host just one inmate. Therefore, macro-prisons, as a matter of truth, double their operational residential capacity and host around 2000 inmates.

Council of Europe Annual Penal Statistics-SPACE I Prison Populations, Survey 2013, Final Report, p. 58

[20] See: Defensor del Pueblo. Informe Anual para las Cortes Generales 2013, pp. 132 et seq.

https://www.defensordelpueblo.es/es/Documentacion/Publicaciones/anual/Documentos/Informe_2013.pdf

Inmates serving their prison sentence in the so called first category regime or subject to the isolation sanction or the programme for auto protection–art. 75 GPOA- are the exception and are always placed in individual cells)

[21] http://ec.europa.eu/eurostat/statistics-explained/index.php/Crime_statistics#Total_recorded_crime

[22] http://www.gencat.cat/justicia/estadistiques_serveis_penitenciaris/1_pob.html

[23] SPACE I Project http://wp.unil.ch/space/space-i/prison-stock-2014-2015/

[24] It must be noted that claims on ill-treatment filed by prisoners before the Judges for Prison Supervision are then forwarded to criminal judges, responsible for investigating the facts which may constitute criminal offences. However, Judges for Prison Supervision may adopt those measures necessary to prevent the commission of further acts of ill-treatment against the prisoner-claimant inside prison.

[25] In Spain there are no enforceable deadlines for judges to render a judgment, a decision or an indictment. Theoretically the Procedural Criminal Act establishes a five-day time limit, yet it is hardly ever met mainly due to work overload

[26] See Renart, F., Los permisos de salida en el derecho comparado. SGIIPP, Premio Nacional Victoria Kent, 2009

[27] CPT/Inf (2013) 6, p. 40.

[28] Since the entry into force of the latest reform of the Criminal Code in July 1st 2015 there has been a change in terminology and “libertad condicional” is now termed: “pena suspendida”

[29] The list of items in descending order are: 35% of the court orders issued concern permissions, 30% of court orders issued concern prison classification, 25% of the court orders issued have to do with conditional release and finally, 10% of the court orders issued concern complaints and requests. See www.cgpj.es/datosactividadjudicial