Individual reports:

Report Nº 11

12/12/05

August Gil Matamala, lawyer, member of the Barcelona Bar Association and President of AED
and
Gemma Calvet Barot, lawyer with the Defence Commission of the Barcelona Bar Association

The most surprising thing about the 18/98 Macro-trial

The most surprising thing about the 18/98 Macro-trial, for an outside observer –such as the undersigned- is the charges of membership of or cooperation with an armed group against the 59 defendants, when the list of presumed criminal actions attributed to them does not include a single reference to attacks, weapons or explosives, or any kind of violent actions. The alleged terrorists are all normal citizens, with known homes and legal professional activities. They are shopkeepers, employees, pensioners, and even –eight of them- lawyers. Their economic, political, trade union or cultural activities are carried out in a public and well-known way, within perfectly legal organisations or companies that have legally registered statutes and more or less correct tax-forms. Nothing to do, in principle, with the world of the clandestine underground and armed struggle, which would normally be associated to terrorist activities.

The prosecution holds that, beneath all this normality and the apparently legal activities of the defendants, there is a sinister network to support ETA: the associations, foundations, media projects and businesses where they work were all directly created by ETA or were directed and controlled by the armed group, placed at the service of its terrorist aims and therefore the defendants would be active members, or, at the very least, collaborators of the terrorist organisation.

This approach, which involves extremely heavy sentencing requests; has caused concern in legal spheres that, inside and outside of the Spanish state, are vigilant of the progressive degradation of fundamental rights and democratic liberties in the western world. In the first place because this trial is testing the judges’ acceptance of an unprecedented, expansive concept of what, until now, has been understood as a crime of terrorism. According to this approach, the accused may commit a crime of terrorism regardless of his or her specific activities, which are in principle admitted by the law, with no need to establish the link or material connection between the said activities and the aims of the terrorist group. For many of the defendants, holding a post or having held a post in one of the entities that have previously been branded as part of the “social environment” of ETA is enough of a reason to be charged with membership of an armed group, despite the fact that no specific allegedly criminal activities have been attributed to them. This undoubtedly amounts to a breach of the principle of personal responsibility in the punishable action, which rules the entire civilised criminal system and the wholesale acceptation of the concept of a Criminal Law of the enemy promoted by Judge Baltasar Garzón, the investigator of the proceedings. It would seem that the idea that “against the enemy, anything goes…” has found its space within the procedural criminal field.

Secondly, upon analysing the extremely long charges sheet, we were surprised by the poor quality of the circumstantial evidence given as a basis for the thesis of the link to and dependency towards ETA of the series of legal entities involved in the Case: the newspaper Egin and the radio station Egin Irratia, the European association Xaki, the political organisation Ekin, the Joxemi Zumalabe foundation, and many businesses. The said evidence is no more than a series of sporadic contacts between certain people belonging to the said entities and members of ETA over a long period of time, with years in between; ETA’s interest in the said entities, reflected in its internal documents; and, finally, a coincidence of political aims: sovereignty for the Basque Country. Overall, the prosecution is but endorsing the theory Judge Baltasar Garzón came up with when, in 1998, under the effects of a sudden flash of inspiration, he discovered that anyone who worked, regardless of the means employed, towards the same objectives as ETA, must necessarily be a member of ETA. The trial begun in late November in Madrid at the Third Section of the Audiencia Nacional was born, in our view, under the shadow of suspicion: are suspected criminally defined actions on trial, or is it about criminalising a certain expression of political dissidence?

The tribunal trying the 18/98 process will have to set the dividing line between legitimate political activity and criminal actions; between the constitutionally protected exercise of the right to free speech, information and association and a punishable action defined in articles 515, 516 and 576 of the Spanish Penal Code. However, in order to arrive at the judgement, and especially in order to uphold the demand for justice a case that is affecting a large section of the Basque associational fabric deserves, it would be absolutely necessary for the trial to be held with scrupulous respect for procedural rules and with full guarantees for the exercise of the right to a defence.

As observers at the first few sessions of the trial, we cannot forgo the opportunity to express our doubts as to this aspect. We witnessed an atmosphere of special tension in the courtroom and an attitude of systematic rejection of the objections to procedural deficiencies, many of which were impeccably argued from a legal point of view by the defence. 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. The trial began inn 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 accusation, 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.

In view of all the above, we cannot qualify the request by the defence to suspend the trial until the aforementioned procedural defects had been righted, the agreed tests had been carried out and the case had been organised so as to make it accessible for the parties as obstructionist or dilatory, as certain media have done. Quite the opposite, it was an attempt to ensure an ordered development of the hearings and respect for the rules of procedure, the only guarantee of the rule of law, of the right to a defence, of equality of opportunities for defence, of the independence and impartiality of the administration of justice. The presence of outside legal observers is undeniably a complementary guarantee that these principles will not be questioned in this trial. This is why the bodies we represent, the European association “European Democratic Lawyers” (AED) and the Commission for the Defence of the Rights of the Individual at the Barcelona Bar Association will continue to be present as observers, within their possibilities, at the ongoing sessions in the so called 18/98 Macro-proceedings.

Beyond the legal relevance of our observations, we believe that the possible scenario of pacification and political resolution of the Basque conflict demands, from civil society, and especially from jurists, an active stance which will promote the existing legal instruments as tools for peace.