Assistance for detainees
The aim of this section is to inform families and friends of Spaniards who have been arrested or sentenced to imprisonment in foreign countries of the services that may be provided by the Spanish Government, through the Ministry of Foreign Affairs and Cooperation and its Embassies and Consulates, as well as to indicate those actions that are not permitted under Spanish law, which therefore cannot be offered.
Protection and assistance
Problems of a very varied and serious nature may affect those detained or imprisoned in a foreign country (such as problems with telephone and postal services, cultural differences and different lifestyles plus, in the majority of cases, a different language). In these cases, the Ministry of Foreign Affairs and Cooperation may provide assistance and help.
On this issue, it should be highlighted that those people travelling to another country are subject to the local laws of that country, such that if a Spanish national breaks the law of another country, they will be subject to legal proceedings according to the law of that country without the possibility existing of being exempt from appearing from the local judiciary or, as the case may be, from a custodial sentence. Ignorance of the local law and the status of foreigner do not exempt foreigners from compliance with and observance of the laws of the country they are in, and hence, no-one, not even the Consulate or Embassy, can exempt the offender from the application of the foreign law.
As soon as you become aware of the arrest of a family member or friend in a foreign country you should get in contact with:
MINISTERIO DE ASUNTOS EXTERIORES Y DE COOPERACIÓN [THE MINISTRY OF FOREIGN AFFAIRS AND COOPERATION]
Dirección General de Españoles en el Exterior y de Asuntos Consulares y Migratorios
C/ Ruiz de Alarcón nº5
Telephone: (+34) 91 3791612 – 91 3791613 – 91 3791833
Fax: 91 394 86 68
Prior to taking any action, such as sending money, medication or even travelling to the other country, it is advisable to consult the Directorate-General of Spaniards Overseas and of Consular and Migratory Affairs or the corresponding Consulate regarding the suitability of undertaking these actions and of the best way to proceed.
The criterion that guides the State’s action on this matter is to ensure its nationals of suitable treatment on the part of the penitentiary authorities, as well as respect for the intimacy of the detainee. In regard to this latter aspect, the provisions of Constitutional Law [Data Protection Act] 15/1999, of 13 December, on the protection of data of a personal nature apply.
The Spanish State will provide the maximum assistance and attention to those detained and imprisoned in those countries in which conditions are objectively more deficient.
Hiring a foreign lawyer
The legal representation of a Spanish citizen abroad and the choice of lawyer are fundamentally important tasks and should be carried out with great care. It is fairly common for foreign lawyers to ask for large sums of money in advance in exchange for vague promises which are not then kept.
The Spanish Consular Sections are in a position to provide a list of lawyers specialised in certain types of case, but it should be understood that they cannot recommend any lawyer in particular. The decision to hire a legal professional is the responsibility of the detainee or of their legal representatives. Spanish representations overseas cannot, under any circumstances, be party to this professional relationship.
It should be remembered that in practically every country in the world the concept of duty solicitor exists, that is, free legal aid to those who can show that they lack the means to hire private legal assistance.
Assistance for detainees
Spanish Consular Sections, pursuant to the laws and regulations of the country where the Spanish citizen is detained or imprisoned, may:
- Notify family and friends of their arrest and, as the case may be, of the custodial sentence provided that the prisoner authorises this.
- Periodically visit. The frequency of visits will depend on local regulations, the special circumstances affecting the prisoner, the location of the prison, the number of Spaniards in prison, the number of Spaniards detained in penitentiary centres within the consular district and the availability of personnel at the competent Consular Section.
- Deliver and receive messages and correspondence.
- Request the local authorities, following a request in writing, for information on the case.
- At those penitentiary centres that do not cover the basic needs of detainees (food, medication, clothing, etc.), the Consular Sections will try to help obtain these, to the extent possible.
- Gather information on personal objects that are missing or not available.
- Provide reading material.
- Provide assistance in the event that the prisoner should request a transfer to Spain within the framework of Agreements on the Transfer of Sentenced Persons deprived of their liberty in those countries with which Spain has signed an agreement of this nature or which are parties, as in the case of Spain, to the Strasbourg Convention.
In contrast, they may not:
- Pay out fines imposed on Spanish nationals by the authorities of another country from public funds, nor settle compensation or civil redress imposed by foreign authorities, whether judicial or otherwise.
- Provide legal opinions or interpretations of local laws and regulations.
- Attend legal hearings except in exceptional circumstances, in which there are well-founded suspicions that the Spanish citizen may be deprived or their fundamental rights.
- Recommend a specific lawyer – although a list of lawyers may be provided – in the event that the national detainee rejects free legal aid offered which is generally provided in all countries.
- Become involved in substantive issues between the detainee and their lawyer.
- Introduce into prison – or send therefrom – anything that is not authorised by the corresponding prison regulations.
- Organise accommodation for family or friends of the detainee who wish to visit the latter.
- Exercise consular protection of Spanish detainees that also hold the nationality of the country in which they are detained, since the latter country, while the interested party is in that country, does not recognise their Spanish nationality and vice versa. The only exception to this point is in the event of a violation of their human rights.
- Undertake any task that may be considered to go against the principle of the independence of the judiciary.
Contact with local authorities
Spanish Consular Sections abroad will ask the local authorities for immediate contact with and access to a Spanish detainee as from the time they become aware of the arrest and until such time as they are released. Furthermore, they will endeavour to ensure that the treatment received by the Spanish national is at least the same as that received by the nationals of the country in question in the reverse situation. They will work to obtain such authorisations as the detainee may require from all local authorities to contact their family and friends as well as the corresponding Consular Section.
They will obtain information on the status of the detainee and will seek to ensure that the local authorities do not prolong their situation without clear justification.
They will undertake the necessary monitoring of the state of health of detainees and will ensure that the authorities of the custodial institution provide Spanish prisoners with suitable food and medical services.
Finally, in those countries in which an agreement on the Transfer of Sentenced Persons exists or which are a party to the Strasbourg Convention, they will undertake to ensure that the transfer procedure is carried through as swiftly as possible. The transfer may only take place if the three parties so agree (prisoner, sentencing State and State where sentence is to be carried out).
When a friend or family member decides to visit a Spaniard detained in a foreign prison, it should be taken into account that in some countries the traveller may fall into the hands of ill-intentioned individuals who wish to take advantage of the situation by offering false hope in exchange for large sums of money, and furthermore, that in many countries prison conditions are far worse than is the norm in Spain.
If you should wish to proceed with your plans to visit, it is advisable to inform the corresponding Consular Section or, as the case may be, the Directorate-General of Spaniards Overseas and of Consular and Migratory Affairs. We recommend that any information you wish to have is requested in advance particularly in regard to the visiting days and times in specific prison establishments and the requirements to enter and stay in the corresponding country.
Assistance in situations of need
Spanish residents overseas that find themselves in a situation of need can visit the Consular Section or the Employment and Social Security Department, where they will be informed of the aid programmes that exist and how to proceed with the applications, if appropriate.
Those Spaniards that are temporarily abroad and find themselves in a situation of unexpected need as a result of an accident, or if they have fallen victim to theft, or suffer a sudden serious illness or any other unforeseen situation, and are unable to leave the country on their own means, can resort to the nearest Spanish Consulate General, where they will be offered assistance. The Consulate will help them get in contact with their family or friends in Spain in order to resolve their problem and, in exceptional circumstances, will inform them of consular economic assistance, of a reimbursable nature, that they can apply for.