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As a member of ESCULCA, Observatorio para os direitos e liberdades fundamentais de Galiza, I was invited to attend the trial being conducted at the 4th Section of the Penal Court at the Audiencia Nacional against members of JARRAI-HAIKA-SEGI, charged with membership of an armed group in cases 18/01 and 15/02, investigated by Baltasar Garzón.

Upon arrival at the court I was introduced to the observers from Catalunya and Argentina, and I was offered the possibility of wearing my gown and sit among the lawyers for the defence. I turned down this kind offer as I was more interested in what was happening around the proceedings, further than the legal aspects themselves, because that day, the bulk of the activity in the courtroom was to do with the concluding remarks by the public prosecution. Therefore, I sat amongst the public, close to the observer sent by the Basque regional government.

The Courtroom, which in Audiencia Nacional slang is called the “large bullet-proof room”, is made up of three different spaces: one for the public, about 20 metres square, with long benches and separated from the hearings area by bullet-proof glass, which also prevents sound coming in directly from the hearings area (it comes in via a set of speakers); the hearings area is divided into two spaces, one small area where the incarcerated defendants sit is also surrounded with bullet-proof glass and the rest of the courtroom where the defendants who are not in jail sit, opposite the members of the Tribunal and on one side of the lawyers fro the defence and the prosecution.

There were not as many people at the hearing as on other days, perhaps because the trial had been going for almost a month. The public was a curious mix, including relatives of the defendants (wearing the same T-shirts as the latter, red, with a motto in Euskara) relatives of ETA victims (also wearing T-shirts, with Spanish flags and slogans in favour of the policy of prisoner dispersal and the Spanish Constitution), journalists, Audiencia Nacional security staff, plainclothes members of the intelligence services and observers.

The relatives of the defendants, overcoming their sorrow (the jailed defendants had spent almost four years in jail awaiting trial) were cheery and before the beginning of each session and during the breaks would go right up to the bullet-proof glass and attempted to talk to the defendants, having to use signs, which all made for a sadly comical scene of sign language-shouted conversations. The jailed defendants also communicated with their co-defendants in the courtroom, making gestures indicating hugs and attempting to cheer each other up. I was later able to talk to one of the defendants’ mother, who, with great fortitude, told me about the long journeys she had had to make for four years in order to visit her son.

The relatives of the victims were the only ones with reserved seating, at the first bench, right next to the jailed defendants; this was clearly intended as an attempt to, make visual contact between the latter and their families and friends more difficult. Most of these victims were women and sat in a sombre mood. I tried to talk to one of them, but as soon as I revealed the reason I was at the trial that day, she refused to talk to me.

I was also able to talk to two of the defendants who had been released from jail upon fulfilling the maximum legal stay in jail awaiting trial (four years) and I was surprised, due to my professional experience with inmates, upon not being able to identify any signs that the four years they had spent in jail had affected them at all (jailification of the personality is a phenomenon that psychologists have studied in depth)

The Tribunal was made up of the chair, who only intervened to agree the recesses with the public prosecution; Mr. Ferraz, a young judge who was quite attentive throughout the session, and Mr. Ollero, who was the deponent. This judge was involved in a rather peculiar episode at the Fourth Section of the Penal Court. All three of its former members were disqualified by the Consejo General del Poder Judicial (General Council for the Judicial Power) as a consequence of their actions in a case against a drug trafficker who was released from jail and then absconded (other hypotheses indicate that the true reason was the fact that this Section had consistently reversed judge Garzón’s actions and rejected his thesis, which criminalises the whole of the Basque movement). The disqualification was later reversed by the Supreme Court, but Mr. Ollero was the only one who was reinstated to his former post; he was also, coincidentally, the only one of the three judges who supported Garzón’s thesis and disagreed with his former colleagues.

The defence was made up of six lawyers, who worked on their laptops or took notes, without taking part at any point during this session. Between them and the prosecution sat a large pile of assorted boxes (which had contained, yoghourts, mayonnaise, biscuits…) holding the large volume of documents for the proceedings.

The state prosecutor showed he controlled the situation, he was eloquent and his speech was well structured and measured, to the point that he would propose the breaks whenever he saw the people in the courtroom were tiring of his monologue (he spoke all morning, all afternoon, and continued the following day), he knew all the tricks of the trade and showed he was good at building castles in the air.

He went through the well-known theory that the youth organisations JARRAI-HAIKA and SEGI are part of an organisational network designed by ETA as far back as 1974 and that these organisations follow ETA’s instructions; therefore, the members of these organisations actually have a covert double level of activism and the mere membership of one of these organisations means they are also members of ETA.

The public prosecutor acknowledged that it is possible to share ETA’s aims without this being a crime, as in order to commit a crime there must be an objective element such as belonging to the armed group or providing means or carrying out actions which aid armed struggle, and he argued that taking part in the youth organisations is the objective element that the penal definition requires. However, in order to reach that conclusion he asked the Tribunal to stray from classical jurisprudence, which involves a limited definition of the concept of armed group, in order to help to overcome the old concept of terrorism which is now obsolete, according to his view.

I found the circumstantial evidence weak. For instance, the non-ratified statements made in police custody (which cannot be used, according to jurisprudence, as they lack the guarantee of judicial intervention); the “intelligence” reports compiled by the police (which, again according to the jurisprudence, are not evidence in themselves and the assertions of which must be proven); the seized documents, some of which had no known author, and their translation from the Basque, which was criticised; in addition, I was told that most of these documents were not originally included in these proceedings and had been taken from other cases; finally, the attempts to distort the statements of the witnesses for the defence, including trying to imply that the fact that one of the witnesses, a jailed member of ETA, had said hello to the defendants was an incriminating element.

I was surprised by the Public Prosecutor’s decision to drop the charges against five of the young men and women (some of which had spent over a year in jail) due to the small number of their conversations that had been tapped. This is a quantitative criterion, with little legal rigour; in any case, the content of those recordings should have been the reason for dropping the charges. I was also surprised by the reduction in the sentence request from 12 to 10 years, which could in fact mean a change to the definition of membership of an armed group (6 to 12 years in jail, art 516 of the Penal Code) to that of co-operation with an armed group (5 to 10 years, art. 576 of the Penal Code) and relinquishing the initial request to attribute the responsibility for damages to Herri Batasuna, all of which goes against the “it is all ETA” thesis.

The private prosecution, surprisingly, given the maximalism it professes, supported the changes made by the Public Prosecutor and dropped the charges of genocide (!) it had brought and was defending on its own.

A few days later, once the hearings had finished, the Tribunal made another surprising decision: the release of all the defendants, which was opposed, with an individual vote, by Mr. Ollero.

The remaining incarcerated defendants had not yet fulfilled the four year limit for incarceration awaiting trial and, although some of them were quite close to the limit, others still had several months to go; so the general impression was that, as happened with the previously released defendants, the court would wait until the time limit was up to release them little by little.

This kind of decisions has happened before when a Tribunal, once the court hearings are over, has arrived at a conclusion favourable to acquittal whereby it has the constitutional obligation not to extend restriction of freedom in those conditions, even if the verdict and sentence with its reasoning have not yet come out.

May this point at a possible acquittal for all the defendants?