Individual
reports:
April 2007
Report nº19
Amalia Alejandre and José Manuel Hernández.
Attorneys from Madrid. Observers in trial 18/98
for EHWatch.
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.
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