The Modest ECtHR Supervision of Spain´s Prison System
| Published date | 01 December 2021 |
| Author | CLARA REY SÁNCHEZ,ESTER PASCUAL RODRÍGUEZ |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1111/hojo.12431 |
The Howard Journal Vol60 No 4. December 2021 DOI: 10.1111/hojo.12431
ISSN 2059-1098, pp. 564–579
The Modest ECtHR Supervision of
Spain´s Prison System
CLARA REY SÁNCHEZ and ESTER PASCUAL
RODRÍGUEZ
Clara Rey Sánchez is Research Associate, University Jaume I, Castellón,
Spain; Ester Pascual Rodríguez is Professor of Law, University Francisco de
Vitoria, Madrid, Spain
Abstract: The European Court of Human Rights (ECtHR) has not yet ruled against
Spain for breaching Article 3 of the European Convention on Human Rights (ECHR)
on account of the material conditions in Spanish prisons. Most of the ECtHR´s case
law regarding Spanish prisons and detention conditions refers to the incommunicado
detention regime, for which the ECtHR has condemned Spain for breaching the proce-
dural limb of Article 3 of the ECHR and, in its most recent decision on the topic: Portu
Juanenea and Sarasola Yarzabal v. Spain of 13 October 2018, also for breaching
the material limb of that same provision. Besides the case law regarding the incom-
municado detention regime, the ECtHR has ruled on issues related to arrangements
for granting adjustments of sentence, which have traditionally been understood to fall
outside the scope of the ECHR. In this sense, Del Río Prada v. Spain of 21 October
2013 and Arrozpide Sarasola and Others v. Spain of 23 October 2018 constitute
important attempts of re-examining the concept of penalty for the purpose of extending
the guarantees of the Convention. Still, however, altogether considered, the case law of
the ECtHR on Spain’s prison system and policies is relatively modest if compared with the
significant case law issued against other European countries regarding this same topic.
The reasons behind the limited ECtHR oversight of Spain’s prison system are varied and
not straightforward and the present article aims at shedding light on this question, while
highlighting the many potential areas where an alignment with some of the criteria set
forth by the ECtHR is needed.
Keywords: European Court of Human Rights (ECtHR); incomunicado deten-
tion; inhuman or degrading treatment or punishment; prison monitoring;
torture
This article analyses the European Court of Human Rights (ECtHR) ju-
risprudence regarding Spain’s prison system and policies and the domestic
authorities’ reaction to the obligations imposed by the Strasbourg Court,
while providing an overview of the main problems affecting the Spanish
564
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2021 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol60 No 4. December 2021
ISSN 2059-1098, pp. 564–579
prison system, with the support of data and statistics. The aim is to shed
some light on why, despite the many deficiencies that affect the Spanish
prison system, the ECtHR case law is scarce. The article is divided into
three sections. The first section procures data and statistics for a better
and more objective understanding of the system’s capacity and current
situation. The second section analyses the substantial case law regarding
Spain´s incommunicado detention regime, as well as the two decisions on
arrangements for granting adjustments of sentences. The second section
also elaborates on the actual compliance with these court rulings by Spain,1
notably through an examination of the action plans submitted to the Coun-
cil of Europe Committee of Ministers in response to the ECtHR findings.
Finally, the third section, offers some insight as to why so little claims on
prison issues reach the Strasbourg Court.
Overview of the Spanish Prison System
Since 1984 there are two prison administrations in Spain:2the Central
Government Prison Administration, under the jurisdiction of the Ministry
of Home Affairs, which supervises prisons located throughout the entire
Spanish territory, except the Autonomous Community of Catalonia; and
the Catalan Prison Administration,3under the jurisdiction of the Depart-
ment of Justice of the Regional Government of Catalonia, which supervises
prisons located in that territory.
According to the latest data available, the total prison population in
Spain on 1 January 2019 was 58,983 inmates, including both convicted
and pretrial prisoners.4Given that the total capacity of all the prison fa-
cilities in Spain on that same date amounted to 82,251, the prison den-
sity (per 100 places) was 71.7 (69.6 as regards the Central Administration
and 87.8 as regards Catalonia) (Aebi and Tiago 2020, p.72). This repre-
sents an improvement as compared with the situation observed in pre-
vious years, when the Spanish prison system was afflicted by significant
overcrowding.5
Despite the decrease of the prison population in the last few years, a
number of concerns remain. In practice, the general rule tends not to be
single-occupancy cell placement, rather cells are usually shared between
two prisoners6and, in some cases, between more prisoners.7Prison popu-
lation is, therefore, not evenly distributed throughout the different prisons
or even within the modules of a given prison, and in specific situations oc-
cupancy rates may be exceeded (Rodríguez Yagüe 2018, p.192).
Spain continues to have a large prison population rate per 100,000
inhabitants, despite having relatively low criminal rates.8As of 1 Jan-
uary 2019, Spain’s prison population rate was 120.3. This figure is higher
than the rates of neighbouring countries, like, for example, Italy (99.6) or
France (103.4) and very distant from northern European countries (Aebi
and Tiago 2020, p.30). In addition, the average length of imprisonment
in Spain (20.6 months in 2018) is also higher than that of neighbouring
countries (like France, 11.2 months or Italy, 14.9 months) (Aebi and Tiago
565
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2021 The Howard League and John Wiley & Sons Ltd
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