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EH NEWS: SPANISH INQUISITION
Spanish Court orders arrests of 46 defendants on 18/98
The sentence on this case is not going to be announced until December, but judges have already considered their verdict and that is why they ordered the arrests of the defendants.
34 people have been arrested so far accused of being related to 18/98 case, judicial officials reported. Spanish National Court ordered on Friday the arrests of 46 defendants on this this macro-trial.
This trial was the largest ever made in terms of the number of defendants. The judges heard testimonies of more than 300 people. Those on trial included alleged members of Basque social political gropus, media and other organizations. Spanish National Court banned their activities citing they were supporters of Basque armed group ETA.
Spanish Court ordered all the arrests, investigation officials reported. According to these sources, the sentence on this case is not going to be read until December. But, the court has ordered police to put them under detention before the convictions are announced, a court official said.
List of arrested people
Txema Matanzas, Jesus Mari Zalakain, Elena Beloki, Alberto Frias, Javier Balanzategi, Javier Salustregi, Joxe Mari Olarra, Mikel Korta, Iñaki O'Shea, Juan Mari Mendizabal, Mario Zubiaga, Iker Casanova, Manuel Intxauspe, Jose Garcia Mijangos, Natale Landa and Olatz Egiguren.
The International commission "Euskal Herria Watch" on case 18/98
The "Euskal Herria Watch" international commission, made up of lawyers from various countries, had the opportunity to participate in the sessions celebrated between the 21 st of November 2005 and the 14 th of March of 2007 in the 18/98 proceeding. The parties on trial are private businesses, the newspaper Egin and the radio station Egin Irratia, the Basque political organisation Ekin, the foundation for the promotion of the social movements Joxemi Zumalabe and the European association Xaki for international activity.
This report contains a summary of our main concerns, based on the monitoring work carried out, as well as a series of conclusions regarding this particular trial.
The public prosecution and the private prosecution carried by the Association of Victims of Terrorism charged 51 people who have participated in the mentioned businesses and associations with a crime of "belonging to a terrorist organisation". On this bases, the prosecution asked for 10 to 50 years of prison for the defendants, as well as other accessory penalties. Afterwards, the prosecutor reduced the petition for 4 to 19 years depending on the consideration of "collaboration" with or "membership" of an armed group. Among the defendants the persons prosecuted for their relationship with the Egin newspaper's board of directors faced the higher petitions. In total, where before the prosecution asked for 927 years of imprisonment, now they ask for 484.
The charges brought by the Investigating judge and taken on by the public prosecution and the private prosecution are not rooted in any concrete facts or particular evidence. The charges are based on the idea that these people participated in the aforementioned organisations to infer afterwards that these organisations belong to ETA. Even if the first part of that logic is granted because of the public and notorious activity of these social and political activists, the second part lacks any reason or evidence to be assessed, but is no more than a speculative interpretation built on suspicions. These suspicions are limited to sporadic contact among defendants and members of the ETA armed organisation, to the interest expressed by ETA about these organisations, reflected in its internal documentation, and finally, to the coincidence in the political goals: sovereignty for the Basque Country. The suspicions on which the charges are based are not criminal activity. The situation could be explained as the late German lawyer and observer, Martin Poell manifested to the media "we have known about cases without evidence, but this is the first case that does not even have crimes".
Without individualized criminal conduct, the construction of the connexion among these organisations on trial with ETA is mere speculation.
The public hearing: the right to a defence
The defence has come across an unlimited number of difficulties to exercise their professional task. A list of issues that had to be solved before the hearings began could have stopped it: the trial began in the absence of three defendants, without the orders for them to be brought before the court having been issued. A previous appeal challenging a number of expert witnesses had not been resolved; it was rejected by the tribunal on the spot. The prosecution has requested a number of companies to be declared illegal and have their assets seized, and they have not even been summoned to appear in court. They have not been notified of the charges, which amounts to civil death, because they are not party to the proceedings and cannot defend themselves, therefore, if they were convicted this would mean the proceedings will be voided. Last, but not least in terms of the guaranteeing of the right to a defence, a series of documentary tests requested by the defence before the beginning of the trial have not been carried out, despite the fact that they should have been done before the trial began and that the tribunal had agreed to their being carried out. It is due to the hurry showed by the Court to carry on with the hearing that these questions, that can bring about an effect of nullity, were simply ignored.
A decision to begin and continue the trial was made by the tribunal, over and above the fact that the case –a 207,000 page-long monster- is in a state of chaotic disorder. There is no index of pieces of evidence; the whereabouts of these pieces of evidence is often unknown, which makes access to the evidence difficult for both prosecution and defence; finding a document means an effort that often turns out to be futile, thereby causing repeated adjournments to continue the search.
On the 15th session of the trial, the 21st of December 2005, the evidence in Prior Proceedings 75/89, was brought to the Court. It is a series of police reports, transcriptions of tapped phone conversations and other documents which have been kept under official secret since 1989. The prosecution had access to that documentation but not the defence; these documents remained in secrecy for them. Due to the impossibility to have access to that evidence even being brought to the Court, t he defence lawyers requested the protection of their respective Bar Associations and the Basque Council of Lawyers. Those plus the President of the Spanish Council of Lawyers held a meeting with the President of the Audiencia Nacional to grant the fundamental right to a defence.
One of the most shocking violations of the right to a defence in the view of the observers that have participated in this first part of the hearings was the ban on the defendants to make their statement freely in front of the Court and, more specifically their right to explain why they were refusing to answer the questions by the prosecution. The defendants had decided this, as a clear political statement. Nevertheless, the president of the Court cut the intervention of the defendants forbidding any further explanation immediately after declaring their refusal to answer. Of course, if it is not appropriately explained, by attitude on the part of the defendants can be understood as a fearful or doubtful position under cross examination by the prosecutor. One of the lawyers mentioned the jurisprudence of the European Court in Strasbourg – dated 2 May 2000, in the Condron vs. the UK case-, annulling a trial because the reasons why the defendant was remaining silent were not stated in the minutes. The president of the Court answered to the lawyer that "I do not care what Strasbourg says".
For this and other reasons we can see that the attitude of the Court has been manifestly aggressive and authoritarian towards the defendants. The inquisitorial character of the hearing and the and the intense and worrying emotive implication of the president of the Court in it, instead of being impartial and "super partes" has been made clear. A Court should uphold basic rights at the time of doing justice, as the effective judicial tutelage for all the people in the exercise of their legitimate rights and interest, without legal protection and the right to a trial with full guaranties, to use all the pertinent means for the defence and the right to be presumed innocent.
It is relevant to underline that the Court never has ruled in favour of the defence in any of the many incidents that have occurred due to irregularities in the development of the proceedings. All of them must be resolved in the final decision by the Court.
Quality of evidence
Throughout the hearing not a single allegation containing concrete, individualised facts was put forward. The evidence consisted of the reading of documents allegedly seized from ETA, statements taken from some defendants under incommunicado detention, telephone tapping and statements by the agents of the Central Unit of Intelligence of the National Police and the Investigation services of the Civil Guard, brought in as court experts and the main revealing factor of the prosecution.
These agents make their anonymous testimony as court experts, understanding that they provide the court with alleged expertise and objective knowledge, in their the field of activity. However, it is clear that, even if they present themselves as expert in the fight against ETA, their statements are an interested and biased account of the facts, as they have taken part in the investigation. They gave their statements collectively, all together, behind a screen that separates them for the public, not from the defendants. They have permission from the tribunal to discuss their answers and correct each other. In practice, the opinion of these agents introduced by the Court as "experts" has the role of rectifying the gaps in the evidence.
Nevertheless, their statement were full of incongruence and contradictions, such as the one referring to the origin of some of the documents, the identities of the persons that appear in those documents under nicknames, or the alleged connection between the newspaper Egin or the Foundation Joxemi Zumalabe with ETA.
One of the matters that have had a shocking effect is the identification of one of the experts as one of the officer conducting torture at the interrogation of Nekane Txapartegi and Mikel Egibar. The latter asked the Court to uphold his right to question the experts. The reaction by the president, Angela Murillo was to shout "sit down! be quiet!" losing her nerves and asking the police that guard the Court to form a human wall between the Civil Guard agents acting as experts and the defendants, who shouted "torturers!!". Murillo, overwhelmed, decided to adjourn the session.
Matters of humanitarian nature
As mentioned, the trial lasted 16 months in a Court especially built in a neighbourhood at the outskirts of Madrid . The defendants were obliged to be present every day that court is in session. The only accommodation was to replace the Thursday and Friday sessions with night sessions on Mondays and Tuesdays. It is surprising to hear that being present in the courtroom is not a right of the defendants, in their best interest, but an obligation imposed on them. It seems evident that this is not a measure aimed at guaranteeing the defendants have full knowledge of the proceedings and a better chance to exercise their right to a defence but an extra obligation imposed on them after the accused had repeatedly stood against it. It has caused many traffic accidents in the long journeys from the Basque Country to Madrid, has generated adjournments and delays due to the difficulties to appear in the Court for all the defendants. It has also made the defendants' daily life more difficult, their family and work activities, and affected their economies, creating a high physical and psychological cost.
A particular mention should be made to the case of Iñigo Elkoro who, due to a serious disease, had to be separated from the trial and a new trial will have to take place, so as not to interfere with the main proceedings. In the case of Jokin Gorostidi, the day before he had to make his statement in court he suffered a he suffered a heart attack with the result of his death on 25 th April 2006. The attitude of the Court towards the defendants can be considered cruel and degrading treatment.
The Issue of Torture
On 6th May 2006 defendant Xabier Alegría declared in court: He has the highest petition from the prosecutor, with 100 years in prison. He explained he had suffered torture during incommunicado detention. The lawyers submitted a copy of other procedures including this fact, the prosecution did not deny the submission and the Court admitted it.
The 18th of April, was the turn of Mikel Egibar who provided the Court with an account of torture during his detention by the Civil Guard on 10th March 1999, including beatings, suffocation with a plastic bag, threats against him and his family… during five days, before was brought to the National Court. The next day Nekane Txapartegi gave her statement, explaining that her incommunicado detention lasted 10 days and included death threats, the plastic bag and sexual harassment, even being raped by four Civil Guards.
The statements taken under torture are used by the court to base the accusations in this trial 18/98 and to introduce incriminatory evidence against the people that suffered it and the rest of the defendants.
Conclusions: ideological accusation and expansive interpretation of the penal definitions
The accusation carried by the public Prosecutor and the Association of Victims of Terrorism asked, in their separated reports, for a conviction while the defence asked for acquittal of all defendants.
The reports of conclusions of the accusations are not based on the reasons and evidence that have appeared during the hearing. On the contrary, they come from the first interpretation developed during the stage of investigation by the head of Court of Investigation nº 5 of the National Court, Baltasar Garzón. The public prosecutor, as he lacks evidence to support his theory, recited a brief and specific review of the history of ETA, to wind up his statement on the organisations and businesses that are on trial, and to recount the charges brought against them: KAS would be an "instrument" used by ETA for "direction of the movement", which, at the same time, would control a business scheme dedicated to maintaining ETA members abroad" and members of KAS itself. Ekin, according to this theory, would have been created to "replace" KAS; Xaki would be the latest version of "ETA's external relations"; and the Joxemi Zumalabe Foundation would have taken the baton from ASK to continue to "invigorate the popular movement". Finally, Egin and its publishing company Orain S.A. would make up ETA's "intermediary front" or "fourth front".
At this point, the representative of the Attorney General had no other choice than to admit that the written charges contained serious errors, and that several of the charges against the defendants had no legal foundation. Nevertheless, he concluded that participating in any of these organisations is at the same time to be an active member of ETA due to the "divisional theory". "All of the structures participating in that global structure" which for him the nationalist left is, "are contaminated with the goals and objectives" of ETA. So, lacking rational evidence, the accusations will use an ideological interpretation, a philosophical deduction to ask the Court to deliver a conviction.
But moreover, the designation of the facts as crimes of "collaboration" or "belonging to an armed group" are based on a new definition of terrorism tailor-made to include the activities in this trial. In fact, the prosecutor asked the Court, contrarily to the classic jurisprudence that advocates for a restricted interpretation of the concept of terrorism, to make it wider to include these social and political activities. To do so, he counts with the precedent of the decision of the Supreme Court in the 18/01 case referred to the youth organisations Haika-Segi.
On 19/02/2005 the Audiencia Nacional issued a decision whereby it stated the youth organisations Jarrai, Haika and Segi are not terrorist organisations because they do not use weapons or explosives, although the Court did declare them illegal and sentenced 24 young Basques to between two and half years and three and a half years in prison, more or less the time they had served in pre trial detention. This decision was appealed by the defence and the Prosecution, for different reasons, before the Supreme Court. The defence asking for the acquittal and the prosecution, specifically, defended its aim was to obtain new jurisprudence on the definition of "belonging to an armed group" which could be applied in other proceedings.
On January 19, 2007, the Supreme Court published its decision. Indeed, three of the judges believe these organisations are "illegal associations which amount to a terrorist gang, organisation or group" and gave 23 young Basques 6 years in prison whilst they acquitted one. The decision introduces a new expansive interpretation of what is an "armed organisation", as was asked in the appeal by the Association of Victims of Terrorism "according to the new times". A further two members of the Tribunal voted against this decision, giving a dissident vote considering that it "creates a new configuration of armed group" taking into account two elements: one the entity of the facts related to the practice of the "urban guerrilla", that can not be compared to the "terrorist acts that are committed by terrorist groups that have deserved the application of the crime of armed organisation" and as stated by the magistrate Martínez Arrieta and for the lack of real integration in the armed structure, opinion of magistrate Giménez García: «if there is a invitation to become a member of ETA it means that you do not belong to it, so the candidate comes from a different collective to ETA ». Thus, both magistrates of the Supreme Court supported the initial interpretation of the National Court.
The chain of armed activity established, in penal terms, from the urban guerrilla to finish with the public and peaceful political action that now is under judgement must be taken into account. This interpretation will be the determinant element in the deliberations of the Third section of the Penal Room of the National Court to reach a decision.
On the aforementioned findings, the International Commission "Euskal Herria Watch" wish to make public the next conclusions.
1. The investigation of the 18/98 case has been carried out in a chaotic manner and in flagrant violation of the right to a defence, using the secrecy of actions in an absolutely unacceptable way.
2. The violations of equality of opportunities between the prosecution and the defence are quite alarming. The tribunal did not accept a single one of the challenges brought by the defence.
3. The lack of precision as to the allegedly criminal activities and the lack of individual charges contravenes, in an essential way, the bases of the rule of law whereby a defendant must face charges -involving certain criminal conduct- from which he or she can defend himself or herself.
4. The treatment dispensed to the defendants during the hearing, including the obligation to travel and be present in all the sessions has generated a physical and psychological cost that could be considered a form of cruel and inhuman treatment. The effect of this on the health of the defendants is ascertained.
5. The use of statements which were allegedly made under torture is an intrinsic violation of human rights, because of the use of torture itself, and even the allegation should void the evidence.
6. The quality of the evidence was completely inappropriate, with many irregularities, rational doubt as to the origin of documentary evidence and blatant inefficiency of the witnesses called by the prosecution. The expert evidence given by members of the State Security Forces deserves special comment, as the tribunal has elevated police suspicion, prejudice and speculation to the level of scientific, objective and infallible evidence.
7. The use of ambiguous legal definitions and their broad and inclusive application contradict the principle of legality.
8. The state is attempting to criminalise legal, public and transparent activities through a political trial. This is, in itself, a serious attack on the right to freedom of speech, opinion and association. The mention in documents and statements of other associations during the hearing is an attack on their rights and their legal security.
9. We also believe that the Tribunal, the Audiencia Nacional is a special Tribunal for crimes of terrorism and given its high level of politicisation , and the nervous and authoritarian attitude of the chair of the Court, it would seem that the verdict, instead of being an act to find criminal facts and seek justice has been an attempt to provide a appearance of justice to a political decision.
10. Still waiting for the decision, the development of the hearings, the position taken by the prosecutions, the tension generated due to the attitude of the president of the Court and the precedent that was given by the Supreme Court in reference to the 18/01 Haika-Segi case bring us to deduct that the final decision will have an extremely poor juridical quality.
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