Both the internet and the blogosphere have been buzzing like a hornet's nest in regards of the Alberto Gonzales/torture case.
My position about framing the practice of torture within the law?
EZ.
That is euskara for "no".
Never.
Why?
Well, simple, it is just like death penalty, there will never be a 100% certainty that the person to be executed is actually guilty. So we as a society could very well be taking the life of an innocent person.
Don't tell me that it has not happened, the law and the application of the law is left to humans, and we humans tend to make mistakes, its human nature.
So, if anyone decides to allow torture in "certain specific cases", there will be those who will be tempted to use it against an innocent person.
Mr. Gonzales with an "s" (sure, it looks less Hispanic that way) is not alone when it comes to excusing the practice of torture on certain grounds, the USA is about to play host to another infamous torture advocate, Spanish Judge Baltasar Garzon.
Oh wait, Baltasar will tell you that he opposes torture, he could even swear that on a Bible. And he will count on you not knowing what the incommunicado practice is.
Incommunicado is a legal tool in Spain, and it is quite simple, after being arrested the Spanish police can keep you from contacting your lawyer or your family for whole five days. Sounds democratic huh?
On top of it, Spanish law prohibits the use of video cameras at detention places, and only a court appointed doctor or physician can evaluate the arrestee after the five days of incommunicado.
Perfect conditions for torture to be practiced regularly in Spain.
But wait, it gets better.
When a person is being held incommunicado, there is always two police officers in the room, just in case you confess to something during the time you're "questioned" (that is the eufemism used by Spanish police officers) . So then if brought to trial, the second police officer will be the witness for the accusing part, this being the Spanish Government.
And many times a preventive prison sentence has been handed down on the sole testimony of that second police officer.
And that is just the first step, then you can be held in preventive prison for up to five years without being brought to trial before a judge.
What happens usually right before the five years are over is that the charges are dropped for lack of evidence, but since you confesed to the crime you still have to post bail to walk free.
Such legal niceties are the ones that Judge Baltasar Garzón stands for.
Just one more thing, in Spain a judge like this Garzón can conduct and investigation on you as if he was the prosecutor, and then himself act as the judge in your case. Separation of powers is not exactly common practice in Spain.
That is why I say NO to torture, nowhere, never.
My position about framing the practice of torture within the law?
EZ.
That is euskara for "no".
Never.
Why?
Well, simple, it is just like death penalty, there will never be a 100% certainty that the person to be executed is actually guilty. So we as a society could very well be taking the life of an innocent person.
Don't tell me that it has not happened, the law and the application of the law is left to humans, and we humans tend to make mistakes, its human nature.
So, if anyone decides to allow torture in "certain specific cases", there will be those who will be tempted to use it against an innocent person.
Mr. Gonzales with an "s" (sure, it looks less Hispanic that way) is not alone when it comes to excusing the practice of torture on certain grounds, the USA is about to play host to another infamous torture advocate, Spanish Judge Baltasar Garzon.
Oh wait, Baltasar will tell you that he opposes torture, he could even swear that on a Bible. And he will count on you not knowing what the incommunicado practice is.
Incommunicado is a legal tool in Spain, and it is quite simple, after being arrested the Spanish police can keep you from contacting your lawyer or your family for whole five days. Sounds democratic huh?
On top of it, Spanish law prohibits the use of video cameras at detention places, and only a court appointed doctor or physician can evaluate the arrestee after the five days of incommunicado.
Perfect conditions for torture to be practiced regularly in Spain.
But wait, it gets better.
When a person is being held incommunicado, there is always two police officers in the room, just in case you confess to something during the time you're "questioned" (that is the eufemism used by Spanish police officers) . So then if brought to trial, the second police officer will be the witness for the accusing part, this being the Spanish Government.
And many times a preventive prison sentence has been handed down on the sole testimony of that second police officer.
And that is just the first step, then you can be held in preventive prison for up to five years without being brought to trial before a judge.
What happens usually right before the five years are over is that the charges are dropped for lack of evidence, but since you confesed to the crime you still have to post bail to walk free.
Such legal niceties are the ones that Judge Baltasar Garzón stands for.
Just one more thing, in Spain a judge like this Garzón can conduct and investigation on you as if he was the prosecutor, and then himself act as the judge in your case. Separation of powers is not exactly common practice in Spain.
That is why I say NO to torture, nowhere, never.
.... ... .
Preventive prison is a tool widely used by several countries, it is the only way the judge can avoid a suspect to runaway while he is waiting for his judgement. As always it sometimes isn't used as well as it should and we sometimes hear cases of suspects that must be put free because they exceeded the maximum preventive prison time (when this happens the judgement cannot take place and the suspect goes out free of charges) and things like that. By the way, the time someone stays in preventive prison is taken from the prison time the he's sentenced to in the judgement and, in case he's found not guilty or the preventive prison time exeeds the final prison time he will receive an economic compensation as it's considered a fail in the process.
ReplyDeleteA year ago 'fast judgements' (they are oral views that take place between 1 and 5 days since detention) were developed in Spain for the suspects that want to be judged this way and have not been involved in crimes that can take a five years condemn.
Here you have a bit more info on preventive prison in Spain:
"2.5. Prisión preventiva. Si el Juez de Instrucción opina que el sospechoso, en vista de la acusación, debe ser retenido durante más tiempo, puede dictar prisión preventiva en un centro de detención. Para decretar la prisión preventiva el Juez valora, entre otros factores
a) Si existe un hecho con apariencia de delito.
b) La cuantía de la pena (más de seis meses de privación de libertad).
c) Tendrá en cuenta los antecedentes del detenido.
d) Si está efectivamente o no a disposición del Juzgado con domicilio conocido. Generalmente, para el caso de extranjeros consideran que tienen un riesgo de fuga muy elevado.
Lo normal es que el periodo previo al juicio se cumpla en un centro penitenciario próximo a donde se celebrará el juicio. Las peticiones de traslado no suelen prosperar en este estadio del proceso. Apenas se puede influir en la decisión de decretar la prisión preventiva por parte del detenido o la familia.
2.6. Límite de prisión preventiva. En España el tiempo máximo que una persona puede estar en prisión a la espera de juicio es:
-3 meses cuando se trate de una causa por delito con pena de 1 mes y 1 día a 6 meses de privación de libertad.
-1 año si lleva aparejada una pena de entre 6 meses y 1 día a 6 años de privación de libertad
-2 años cuando el delito lleva aparejada una pena mayor .
Ante circunstancias que hagan prever que la causa no podrá ser juzgada en dicho plazo se puede ampliar el plazo de 2 a 4 años respectivamente.
Preparar un caso para llevarlo a juicio suele ser lento por parte de la Fiscalía mientras acaba de completar la acusación y, depende de la complejidad del caso y del número de implicados.
El detenido tendrá que comparecer en el juzgado cada cierto tiempo, fijado por el juez, y ahí se decidirá la próxima vista.
Durante la estancia en un Centro Penitenciario en calidad de preso preventivo, la responsabilidad sobre la integridad física y la salud en general, serán de las autoridades penitenciarias, quienes tendrán que dar cumplimiento a las ordenes y prevenciones que pudiera darle el Juez a cuya disposición se encuentre en detenido (p. e. Asistencia médica, incomunicación)."
I'm sorry but I consider that there's no justification for torture in any case. The police and information services must do the best to avoid criminal actions like the one you used as an example but using the legal tools they have.
ReplyDeleteLet me put an example here:
On March 11th there was a terrorist attack in Madrid, the police found one of the unexploded bombs with a gprs telephone attached to it. Their first suspects were three Indian brothers that owned a tiny telephone shop and where they had unlocked the phone. They were all innocent and it wasn't until a couple of days after when the police had a trace of the real suspects.
Now imagine the hell these guys would have faced if torture were legal in Spain. Policemen torturing them willing to get information and they either saying nothing (remember they didn't know a thing about the attack but what they watched on TV) or pleading themselves guilty of everything from the assasination od Kennedy to Madrid's bombing just to avoid the pain.
I'm sorry but I prefer living free than safe.
Bruno, if a police force needs to torture someone to find out the location of a bomb, that means they dropped the ball way before.
ReplyDeleteThere is sophisticated torture techniques out there that still require a good amount of time to extract information from someone being tortured.
Would you sit and wait or would you have the police doing their job, which is to conduct a thorough investigation?
Come on, lets be real, torture is practiced, and will be practiced, be it legal or not, my problem is with people willing to condone it, to legalize it or to provide a legal frame for it.
Because that is one more step to a police-state, we would be giving up our freedoms, one by one.
No, I wouldn't authorize the torture and I would take actions against the policemen that used the torture as a mean to obtain a confession. I'm sorry, but I believe that these methods bring us worst things than the good they provide.
ReplyDeleteOk. Lets imagine that the bomb exploded because the police was unable to take worth info about the attack from the terrorist they have in custody. Then the magistrates and police forces should do their best to arrest and judge the rest of the terrorists involved in the bombing.
ReplyDeleteYou ask me how would I feel after the bombing. I'm sure I would feel just as bad as I feel after every unexpected bombing we have suffered in my country.
I cannot control the votes of my fellow citizens so I cannot assure that something like this could make some party lose some election but I doubt so. In fact I find it easier for a party to lose the election in case they approved tortures (remember that PSOE lost the national election in 1996 in Spain mainly because a newspaper filtered the relation between PSOE and the GAL, an antiterrorist organization). Anyways I think an elected magistrate must do his job the best he can without thinking in future re-elections.
I said it very clear Bruno, not even the most advance torture techniques promise a quick breakthrough, so no, not even in the case you describe I would authorize the use of torture.
ReplyDeleteTwo wrongs do not make a right.
And I would be a peace with myself if I run for public office and people know that I oppose torture.