Individual reports:

Report Nº 5

Amalia Alejandre Casado.
Lawyer and member of the International Jurists Commission against the Criminalisation of Ideas in the Basque Country. Madrid

EXPERT REPORT IN CASE 18/01
OPINION OR PROOF?

On March 15, one of the three expert witnesses from the Investigation Unit of the Guardia Civil was replying to the prosecutor’s questions on the documents they had used as the basis for the report they had presented that morning, he said they had used “106 documents seized from ETA and also 30 statements made by detainees” which they had taken down as secretaries and inspectors in the Detention Reports, but he was unable to specify what proceedings they came from or who the detainees were. At that point I realised that it was not legally possible to use that expert report as evidence.

This was because expert reports, in order to be legally valid as evidence, must fulfil a series of minimum conditions set by the law and developed in jurisprudence (two sentences to that effect passed by the Supreme Court and the Constitutional Court). The law demands the description of whatever the thing is be done in the state or mode in which it was found, and another prerequisite is a detailed list of all the actions carried out on the evidence by the expert investigators or witnesses (which this report lacks, because there is a break between the detail of the investigative sources that would make it cease to be an opinion and turn it into evidence) and of their outcomes; finally, conclusions will be drawn by the experts according to the said data and the principles and rules of their science or art.

The witness I referred to at the beginning of this report was giving an opinion upon replying ambiguously and vaguely, without being able to specify which was which in the 106 documents seized form ETA (which proceedings the documents belong to) or who were the detainees who had made the statements that the witnesses had referred to during the morning upon talking about, “the various struggle levels in Jarrai: “Z”, which is the legal level, demonstrations and pickets; “X” the semi-illegal level, counter-demonstrations and blocking roads; ad Y” is the illegal level, sabotage and self-defence in mass-struggle.

The first of the witnesses went on to explain that: “Jarrai in a strict activist organisational structure, based on Democratic Centralism, aimed at preparing cadres who will become part of the Abertzale Left (the Basque pro-independence, left-wing movement), in other words, part of KAS, in order to dynamise and mobilise the youth movement” and that “in its foundational assembly in 1979, Jarrai defined itself as an abertzale, socialist and autonomous youth movement which did not feel obliged by the [Spanish] constitutional framework”.

He telegraphically explained the various blocks deployed within the mass front, which in his opinion were: “worker’s front, political front, grassroots front, social front, neighbourhoods front, environmental front, mountain front. But the globalising block, the one that requires double membership was Hasi, HB, ETA, Jarrai”

The third witness explained his opinion on the strategies used by the youth organisations: “destabilisation, target selection and civil disobedience”

The first expert witness finished by saying that as far as he was concerned: “being in Jarrai is being in KAS and in turn this is being in ETA”. The second witness said: “Jarrai belongs to ETA-KAS, this is based on Jarrai documents from ‘79 and ‘90”

According to what the Ley de Enjuiciamiento Criminal (Law of Criminal Procedure) says on the issue of police reports, the investigating judge (Garzón, in this case) will request them whenever scientific or artistic knowledge is needed in order to understand or appreciate an important fact or circumstance in the case.

What I saw that day at the court suggests a number of questions. Is this report acceptable in terms of objectivity? Did the report describe Jarrai, Haika and Segi in the state or mode they really were? And, if there is no detailed list of all the operations carried out by the expert witnesses, will the report be accepted as expert evidence or as simple opinion or claims? Finally, are the expert witnesses’ conclusions supported, in the view of such data, according to the rules and principles of their science or art?

If the Tribunal deems the report to be acceptable as evidence, will the Tribunal be able to ascertain which of the defendants, who belonged at a certain time to the youth organisations, took part in all three levels of struggle, in two of the levels, only in one…?

When the Public Prosecutor began to question the first expert police witness and he replied in a confident and firm manner, with the report recorded in his memory as if he were a machine, it seemed there was no margin for cracks or mistakes. That was mere appearance. In my view, that apparent confidence in the report was not the same as what we were being shown, because the evidence was not within the terms of the law. The witnesses were unable to determine which legal proceedings each of the 106 seized documents belonged to nor who the thirty detainees who had made statements on the issues in the expert report were. The apparent strength of the expert evidence was collapsing like a house of cards. We were able to observe expert evidence which contained little evidence and much opinion. Opinions, strictly speaking, in law, have no value as evidence.

Amalia Alejandre Casado. Lawyer and member of the International Jurists Commission against the Criminalisation of Ideas in the Basque Country. Madrid