FROM THE WORLD TO THE BASQUE COUNTRY
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2007/V/17
Two new reports from Euskal Herria Watch Initiative
During the Autumn of 2003, a delegation, made up of members of the National Lawyers Guild from the US and Association European Democratic Lawyers, visited the Spanish state in order to study the case in depth and met a broad span of people -including judge Baltasar Garzón and officials from the Spanish Ministry of Justice. They published a report about that visit.
In view of the clear violation of rights and liberties caused by these Proceedings, the beginning of the trials has brought about the need for an International Commission of Jurists that will safeguard the fundamental rights and liberties violated right since the beginning of the said Proceedings.
Here you are their last two reports and their link.
Candidatures declared illegal in the Basque Country
In recent days we have witnessed frenzied legal action against Basque candidatures to posts in local and provincial elections, including the Parliament of Navarra, on the 27th of May of this year.
To summarise briefly, the State Prosecutor's Office and State Legal Service brought lawsuits against the electoral candidatures that had been presented collectively as ASB (Abertzale Sozialisten Batasuna). Their supporters had gathered 83,000 signatures, a requirement for inclusion on the ballots. An additional suit was brought against a legal party registered as such for a number of years, known as ANV-EAE -Acción Nacionalista Vasca-Eusko Abertzale Ekintza-. In the ASB case, they allege that the banned party Batasuna is behind ASB working "the two-pronged strategy of terrorist and political activity adopted by ETA" and so they should be prohibited from elections. In the ANV case, most of their lists are "contaminated or infiltrated" by members of Batasuna, that is, "through the appearance of personal or individual participation, what has really been created is that the very party which was declared illegal is the one that is behind the contested candidature." Therefore, the State Prosecutor opted for a strange benchmark for measuring the "contamination" of the lists of the historical nationalist group ANV, and this happens because they include "at least three candidates with a direct and relevant affiliation with the illegal party, as candidates of that party in prior electoral processes or for holding or having held organic posts in their representation."
To obtain this information, the State Prosecutor's Office and State Legal Service availed of files of an ideological nature on 15,000 citizens according to some sources, and 19,000 according to others. These data were contrasted with the 11,700 candidates that would appear on the ASB's 246 and the ANV's 133 contested lists.
On 5 May, the Supreme Tribunal's Article 61 Special Court handed down a unanimous decision prohibiting all 246 electoral lists presented by ASB based on electoral legislation. The Supreme Tribunal took a different tack for the ANV, as the case gave rise to a legal debate on whether or not there was any basis for banning lists of a perfectly-legal party, and therefore their discussions were based on the Political Parties act. In the end, their decision forbade the registration of the ANV's 133 lists.
Spain's High Tribunal upholds the concept that individuals that have participated in illegal parties may not run for election. These parties include Herri Batasuna, Euskal Herritarrok and Batasuna, as part of the so-called "theory of fraudulent succession". But this criterion has also been extended to include participation in other candidatures or parties which over time have been declared illegal -AuB- Autodeterminazioaren Biltzarrak and the lists of candidates to municipal offices in 2003, Aukera Guztiak, Herritarren Zerrenda- as well as those who participated in the electoral process as proxies or representatives.
After the defence for ASB and ANV presented their appeals to the Constitutional Tribunal, considering that fundamental rights were being violated, the Supreme Tribunal's decision was left to stand and so all of the candidatures of the nationalist and socialist groupings, along with the ANV's 133 candidatures, were invalidated. In their unanimous decision, the Constitutional Tribunal concurred that the electoral lists presented together under the common denominator of Abertzale Sozialistak constituted a succession or continuity of previously-banned parties, while the rest were "infiltrated" by Batasuna, according to the Supreme Court's terminology.
In conclusion, this decision closes the process which denies the right to the electoral process of the ASB candidatures endorsed by over 83,000 signatures of Basque citizens, and 133 lists in the case of ANV, such that their candidatures will be present in fewer than half of Basque municipalities and only 15% of the citizenry may support them in provincial elections.
According to the representatives of the State, the annulment of thousands of candidates, many of whom had no relation with the illegal parties, is not a violation of rights.
On the contrary, we believe that there has been at the very least a violation of the right to privacy of those who were investigated due to their participation in prior electoral processes or for holding office in institutions, by virtue of other criteria that seem to have been used to fill out their files in the investigation. The citizenry is subjected to a suffocating degree of social control, as expressed by the European Democratic Lawyers in their declaration made on 21 April in Munich.
We also consider that whoever accepts in legal terms the language used by the State Prosecutor's Office and State Legal Service, i.e. "contamination", "infiltration", "invasion", participates in the discrimination of a sector of the citizenry in a persistent expansion of a policy that irreversibly precludes them from exercising their right to stand for election. Similarly, the lack of clarity, the ambiguity and the extent of the deeds that are considered "contaminating", along with the denial of access to those files, generates a sense of legal insecurity due to the complete lack of knowledge of whose political rights have been restricted and why, and whose have not.
Furthermore, resorting to the procedure derived from the Political Parties act or electoral legislation with the aim of hastening decisions for mere political purposes, disassociating this dispute with the electoral campaign period, has had a serious impact on the right to defence.
Finally, these decisions, in evidence of their utterly low legal standard, and on the contrary, the political determination that inspires them, has a serious impact on the voter's rights, denying Basque citizens of the right to vote for a political option with deep roots in society. The repeatedly-denounced criminalisation of politics, or conversely, the politicisation of justice has helped to generate, in this specific case, an insurmountable democratic deficit, which furthermore dashes the hopes of political normalisation of an absolute majority of Basque society.
18/98: IN JUSTICE, THE ONLY SOLUTION: ABSOLUTION
Surprise, shock and worry have been the order of the day throughout the process for those who have participated in the trial as legal observers. The proverbial Pandora's Box was opened time and time again throughout the trial, releasing calamities in the form of direct and indirect violations of legal and procedural principles, committed by both the examining magistrate Baltasar Garzón, and by the Penal Court, Third Section, of the Audiencia Nacional, during the trial which ran from 21 November 2005 to 14 March 2007.
The defence, in the pleading phase of the trial, once again picked apart each of the violations of legal and procedural rights. The first occurred in 1989 during the initial investigation and taking of evidence 75/89 (a broad assortment of phone tapping, following people, documents obtained through different procedures) which the defence attorneys had no access to until the end of December 2005, such that the trial was started without them being present in the courtroom as evidence.
The second violation occurred when the court refused to provide copies of the evidence 75/89, which resulted in the request and granting of an appeal for protection for the attorneys by the presidents of the State Attorneys' Council and the Basque Attorneys' Council, as well as the deans of bar associations of Vizcaya, Alava, Guipúzcoa and Madrid. Following a meeting held by the aforementioned presidents and deans with the president of the Audiencia Nacional, they were able to photocopy evidence 75/89 from criminal court number 5 of the Audiencia Nacional, so as not to violate the fundamental right to defence as well as the principle of equality of arms in the penal process with the charges arising from this evidence from 1989.
The third of the reported violations was that of fundamental rights of several detainees who had been subjected to physical and mental torment, to protection against self-incrimination, against a coerced confession of guilt or to refrain from testifying (this Court had an interesting opinion on how the courts in Strasbourg ruled on this fundamental right when the accused decided not to testify regarding the charges). These serious violations of legal and procedural guarantees are in contravention of domestic and international human-rights legislation regarding detainees, torture and other cruel, inhumane or degrading treatment or punishment. The only correct decision in this case would be a full invalidation of any evidence or confession obtained under torture.
The fourth of the violations was the temporary closure and suspension of activities of businesses and associations decided upon by the criminal judges along with the resulting negligence of the administrators of assets of the shuttered businesses, which violates the rights of businesses, foundations and associations to recover assets seized or closed as a "precautionary" measure.
What is revealing is that at no time during the trial were the defence's arguments given any semblance of validity by the tribunal, in any of the multiple incidents raised by the violation of legal rights and procedure. All of them have yet to be resolved in sentencing. As an illustrative example, let's not forget the reading of documents instead of showing them to the accused when giving testimony, or the when the National Police (from the Central Intelligence Unit) or members of the Civil Guard (from the Information Service) that took evidence on the scene, became expert witnesses on intelligence, testifying on their own activity, when procedural law and jurisprudence state that this phase of the process is a simple act of reporting, thus corrupting the testimony of the expert witness and the procedure, along with the documents brought in from the letters rogatory in France, many of which were not translated. In this sense the right to a trial with all guarantees and an impartial judge is violated.
The 52 citizens, the associations and businesses, are all charged with being members of or collaborators with a terrorist organisation starting with the fiction of the charges themselves, based on the assertion that organizations of the nationalist left are the various fronts of ETA, resulting in the new concept of terrorism by contamination.
What this trial has made obvious is that the accused, the associations and the businesses have carried out political, social and business-related work in a public manner and without hiding their activities. That they are an inseparable part of a plural Basque society and that they are criminalised and judged not for what they have done but for their ideas. The political, and now judicial, assumption where "everything is ETA", promoted by Judge Garzón in conjunction with the signers of the Pact for Liberties and against Terrorism in December 2000, is part of the reproachable penal theory of the enemy, who must be dealt with radically in a state that claims to promote the rule of law.
The tribunal has its opportunity to put an end to this era. The only fair decision, considering the motives for this "macrotrial" and the violations of legal and procedural guarantees that have resulted, is the acquittal on all charges for each of the accused. Any other judicial solution to this political trial can only be interpreted as an unjust decision loaded with political reasoning but not fair in terms of legal reasoning. In our opinion, a guilty sentence would be a twisting of the facts, the laws and jurisprudence itself, as it would be tantamount to condemning people for their ideas and not the acts that they may have committed. In Justice, the only solution is ABSOLUTION.
Amalia Alejandre and José Manuel Hernández. Attorneys from Madrid. Observers in trial 18/98 for EHWatch.
· Euskal Herria Watch
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