Article 527 Spanish Criminal Procedure Act: Rights Restricted Under the Incommunicado Regime

Article 527 of the Criminal Procedure Act lists the rights of which a detainee may be deprived where article 509 applies: the choice of his own lawyer, communication with the persons he would otherwise be entitled to contact, the private consultation with counsel, and access by him or his lawyer to the file. One limit survives in every case: access to the material essential to challenge the lawfulness of the detention. The article also requires effective judicial supervision and at least two medical examinations every twenty-four hours.

Wording of Article 527 of the Spanish Criminal Procedure Act

Requirements and procedure

1. A case falling within article 509, since these restrictions cannot be ordered outside it.
2. A reasoned decision addressing each restriction individually. A single global decision covering all four rights without distinguishing them does not satisfy the article.
3. The twenty-four hour limit on restrictions applied at the request of the police or the prosecutor before judicial confirmation.
4. Preservation, in every case, of access to the elements essential to challenge the lawfulness of the detention, and of communication with the court, the prosecutor and the forensic physician.

Defence strategy

Individual reasons for each restriction. The article requires the reasons justifying each exception to be stated. In practice a single decision is issued covering all of them. The defence identifies which restriction lacks its own justification, because the consequence is not the nullity of the detention as a whole but the invalidity of what was obtained under the restriction that was not reasoned, typically the statement taken without the lawyer of the detainee’s choosing.

The twenty-four hour window. Where the police or the prosecutor requested the restrictions, they operate for twenty-four hours only. If the court did not rule within that period, everything done afterwards under the restriction is unlawful. The defence establishes the hour of the request and the hour of the judicial decision from the docket, which frequently shows a gap.

Access to the essential material. Letter d) preserves access to the material essential to challenge the detention even under the incommunicado regime. This is the single most important right during the period, because it is what permits an effective challenge at the custody hearing. Its denial is raised in writing at once and, where maintained, founds an application for habeas corpus.

The medical record as objective evidence. Two examinations every twenty-four hours produce a contemporaneous record of the detainee’s physical and mental condition. The defence obtains every report, since they evidence both the treatment received and the capacity of the detainee at the moment of any statement, and their absence is itself a breach that the supervising judge is obliged to address.

• Article 509: incommunicado detention
• Article 520: rights in police custody
• Arrest and police custody rights
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.