Legal Aspects of Physical Integrity and Deprivation of Liberty
Item 35: Physical and Moral Integrity
It is recognized in Article 15 of the EC, together with the right to life. It is a regional law that protects the inviolability of the person not only against attacks aimed at damaging their body or spirit, but also against all kinds of intervention in such property that lacks the owner’s consent.
Requirements for Intervention Without Consent
- Physical inspection of records: These do not affect physical integrity.
- Body interventions: Removing an internal or external element of the body. Minor interventions do not present a danger or distress to the person. Serious interventions present a danger or distress to the person.
Requirements for Body Interventions
- The purpose sought must be constitutionally legitimate.
- Principle of legality: The practice must be provided for by law.
Examples:
- Gynaecological examination for the crime of abortion
- Bioassays for paternity investigation in civil proceedings
- Compulsory medical assistance to prisoners on hunger strike
- Principle of jurisdictionality: Decision must be taken by a judge, with some exceptions. A security guard may take action if provided for by law, necessary, and urgent, and if the police conduct a proportionality assessment (damage is not greater than the good pursued).
- The decision must be substantiated.
- It is not enough to simply motivate the decision; the trial judge must conduct a proportionality assessment: suitability, necessity, and proportionality in the strict sense.
Other Specific Requirements for Physical Intervention
- The procedure is not practiced if there is a serious risk to health or significant harm.
- Must be performed by medical personnel, and by specialized medical staff in serious cases.
- The practice cannot be inhuman or cruel.
Item 36: Preventive Detention and Provisional Prison
A person can only be deprived of liberty in cases provided for by law, according to the EC.
- Custody
- Remand
- Interim prison (before final criminal conviction)
Only judges can order the latter two types of deprivation of liberty. Detention of any citizen is possible in cases provided for by law.
Causes for Deprivation of Liberty
- Commission of a crime
- Suspicion that a crime is being committed
- Escape from prison
- During legal proceedings
- Conviction in absentia
There are other cases of deprivation of liberty, provided they are prescribed by law and subject to a proportionality assessment.
Another case referred to in the law is the precautionary measure of house arrest.
Taking a person to the police for a breathalyzer test or identification.
Internment abroad.
Internment in a psychiatric facility. The Supreme Court (TS) requires several conditions to prevent unlawful deprivation of personal freedom: A mental illness confirmed by a doctor based on an expert medical report, and that the mental illness poses a social danger.
The internment order shall cease when the mental illness or danger disappears.
Limits of Temporary Custody
Article 17.2 includes two limits:
- Absolute limit: Maximum term of 72 hours from arrest. An exception in Article 55.2 allows extending the 72 hours by 48 hours in cases of suspected terrorists or belonging to an armed group.
- Relative limit: Detention will last as long as necessary to carry out investigations aimed at establishing the facts.