A Pseudo-Democracy Against Freedom

This interview was published at World War 4 Report:

COUNTER-TERRORISM THREATENS SPANISH DEMOCRACY

An Interview with Martin Scheinin, UN Human Rights Rapporteur

by Xan Harriague, Berria, Bilbao

Last spring, Martin Scheinin, the UN's Special Rapporteur on the protection of human rights while countering terrorism, spent a whole week in Spain and the Basque Country. He analysed Spain's legislation, its justice system and its tribunals. On March 9, 2009 the results of his analysis were made public before the UN Human Rights Commission in Geneva. He showed concern about several issues, including Spain's definition of "terrorism," freedom of speech, the practice of holding detainees incommunicado and the methods of the country's highest court, the Audiencia Nacional. He recommended to the Spanish government changes and specifications to improve laws.

Scheinin, born 1954 in Helsinki, was named Special Rapporteur in 2005. He is also a professor of international law at the European University in Italy, and vice-president of the International Association of Constitutional Treaties. He was also a member of the UN Human Rights Committee during the years of 1997 and 2004 and President of Finland's Abo Akademi Human Rights Institute from 1998 to 2008.

The Spanish government has nevertheless attempted to discredit the conclusions presented by Scheinin. Javier Garrigues, the Spanish government delegate, spoke in these terms about Scheinin and his report when it was his turn to enter the opposition: "He does not know the reality of the fight against terrorism, or the opinion of the majority of the Spanish population or the basis of the Spanish Constitution... He has made his critiques and complaints that are baseless and that are not tested. He has doubted the impartiality of the judges and the division of powers."

The Bilbao Basque-language newspaper Berria spoke with Scheinin on March 18. This English translation was provided to World War 4 Report.

The Spanish government says that your definition of terrorism is too limited. What do you think about that?

I believe that the definition of terrorism is well defined in Spanish legislation, but then there are many other derivative crimes. The definition extends itself more and more, and in the end engulfs crimes that have nothing to do with terrorism. I believe that the use of the anti-terrorist legislation is too broad in Spain. Some of the issues treated in the Audiencia Nacional should not be there, such as for example, the kale borroka [violent street protests].

Then, should the government better define the legislation?

Yes, I propose the use of anti-terrorist legislation against the real terrorism. The criminal court is enough to take care of the other crimes, without having to mention terrorism. Kale borroka is a violent act, but not terrorism. They are not the same.

What is your opinion of the politicians imprisoned for being members or collaborators in a "terrorist group"?

It is very difficult for me to know if there is [sufficient] evidence. It is very difficult to know if someone receives orders from ETA, or, as the government says, is part of ETA. I have received more information in the case of political parties and electoral platforms. I believe that the point of view of the government is too broad. It acts against groups that have nothing to do with violence. To have the same political objectives as ETA should not be considered a crime, not a reason to have a political party made illegal, as long as there is no relation with violence.

The Spanish government has answered your report by stating that the terrorism is in the objective, not in the behavior. What is your opinion of this logic?

I am in complete disagreement with that definition... In my opinion the definition of terrorism is always in the behavior. It is a strategy defined by the use of violence against innocent people... If we start defining violence by its political objectives, then any organization opposing the government could be defined as terrorist.

Do you believe that there is freedom of speech in Spain and in the Basque Country?

It is a confusing picture. Spain is an insecure democracy, that does accept many criticisms and points of view. At the same time it is true that the banning of political parties and the closing of newspapers limit freedom of speech. Then it is the judges who decide if these limitations are acceptable or constitute a violation. As far as I'm concerned, the Spanish government has gone too far in some cases.

In your opinion, is the Law of Parties [electoral law] a guarantee of freedom of speech?

It is too broad. It is too open to interpretation and in the end, it is confusing. The Law of Parties can be used against freedom of speech, but I would not say that this is specifically its objective. That would be going too far. Although in my opinion as it is too broad, it causes problems.

What would the Spanish government need to change to guarantee freedom of speech?

I proposed an examination by an expert on Penal Code, in order to improve and clarify the Law of Parties. This expert would analyze how to make it not so weak and to leave less open to interpretation.

The Spanish government has made it clear that they will continue to hold detainees incommunicado, ignoring your recommendations. What do you think of this?

I am not the first one who asks for such a measure. Many experts on human rights have said similar things before me. Most countries don't have similar measures. Spain is hanging itself with this practice. As long as it is being used, it is debilitating itself in order to defend against complaints and false accusations of torture. I asked for it to be discontinued and, as long as it is being maintained, to improve measures to guarantee the rights of the detainees.

In its defense, Spain has mentioned the legislatures of England and France...

There is a huge difference. Other countries limit the choice of a lawyer, but they can still choose one of confidence... They have some special measures for the first days of detention, but not a system of incommunicado detention. Here lies the biggest difference in respect to Spain. The majority of countries allow for the choosing of a trusted lawyer from the very beginning of the detention, which is one of the most useful measures to avoid police mishandling. That is why Spain's attitude is much more dangerous than the majority of European countries.

What is your opinion on the return to incommunicado detention by the Ertzaintza [Basque police]?

As I have said before I am against the practice, which should be replaced with other measures. Therefore the news is not good in my opinion.

What do you think about the many torture complaints that are not investigated?

I believe that when there is a torture complaint, the criminal case should be postponed until the complaint gets clarified. I don't think it is good, the way Spain deals with this issue, investigating the crime in one court and the torture complaint in another. Besides, there are very few cases of torture complaints that are actually investigated.

Is that why you say the Audiencia Nacional can be a problem?

Yes, among other reasons, but there are many more reasons. First of all, only one tribunal deals with too many offenses. They should be better distributed. Second, it has too much power from the very beginning of the investigation, and finally, too much control... The appeal process is limited, as the higher court is the one in charge from the beginning of the investigation... Therefore, the Spanish government should think again about dealing with terrorist crimes through the ordinary judicial means.

How do you reply to the Spanish government's statement that when you mention the Audiencia Nacional you are entering territory that does not concern you?

What can I say...? The Spanish Government says it is its concern to establish its institutions and legislations, that this is part of its sovereignty. In my opinion, it is mistaken. Speaking as a UN Special Rapporteur, I can give recommendations to any country to modify any law or to install a new institution or to depose another one. I am an expert in international legislation, above all concerning those human rights, and therefore I am in full capacity to do so. I do it in many countries, and Spain is not the exception. In any case, yes, it is clear that Spain is sovereign and I am not reforming the law. I am simply giving some recommendations.

Do you think the Spanish government's position goes far enough in the improvement of human rights?

It is a position with a double facet: Spain is a reference on many levels, above all, on an international level, in the promoting of dialogue among civilizations. In this field it is doing a good job. But I find problems in regard to the anti-terrorist legislation; it utilizes too many restrictive measures and besides, Spain has institutions that have no place in a democracy.

What is your response to the Spanish government claim that your report is a personal opinion and that it is based on unproved facts?

It is not true. I am an independent expert dedicated to analyze the bases of human rights international legislations. I analyze the current law. In regards to method, I am completely free to obtain information from any source. I should point out that in my report there is nothing that the Spanish government has not previously seen. I have presented my report to them and they have had months to comment on it. Consequently, I am the one who decides what to include or not in the final report.

Is it common that the governments act this way?

Yes, I always receive criticism. From there, it is a question of intensity and style...

In the future, do you believe that Spain will move towards an improvement of human rights?

In general, I perceive a good attitude. Especially since the change in the Government of the USA, many countries have admitted to making mistakes. I hope Spain will move in that direction, too.

What will the UN do after the answer that Spain has given to your report?

I don't think that the Human Rights Commission will take special measures. In regards to me personally, I will keep a vigilant eye on the case.

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This story first appeared March 18 in Berria. It is archived in Spanish translation at www.escuela.net.

RESOURCES

UN Special Rapporteur on the promotion and protection of human rights while countering terrorism

You can also read this interview in Spanish at Eusko Blog : Gazteleraz.

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