Individual reports:

Report nº7

18-19/04/2005

J.M. Ortiz Reparaz
Lawyer and member of the ACDDH and of the AED, working in Barcelona


Summary of the 18th and 19th April, reports by the State Prosecution and the Private Prosecution by the Asociación de Víctimas del Terrorismo


The lengthy report by the Public Prosecution, full of philosophical and legal detail and the anecdotic report by the Private Prosecution can be summarised as follows:

The State Prosecutor requested a new definition of terrorism. He explained that the concept of terrorism used by the Audiencia Nacional was no longer useful. The evidence showed that the defendants are ideological activists and therefore have certain level of responsibility for the violent actions in the streets of the Basque Country, despite the impossibility of proving their direct involvement in the events.

The private prosecution said that “notorious events” do not need to be proved, because everyone knows about them. This is a professional criminal terrorist group and the disorder is noticeable during the hearings, when they laugh, put their feet on the chairs, plus, most of them have made their statements with their hands in their pockets. They behave like a criminal gang, said the private prosecution, therefore there is a need for a modern interpretation of the concept of terrorism which the Tribunal is requested to define.

This observer noted two important legal problems in the said reports, based on the principle of legality in articles 26 and 28 of the Penal Code: one is the concept of document and the other, more important one, is the concept of responsibility.

Regarding the concept of document, the definition states that it is any material medium that expresses or includes data, events or narrations in a way solid enough to prove something or in any other legally relevant way. A simple photocopy is not a document, and this is stated in jurisprudence (TSS, 22 October 1998, deponent Mr. Móner Muñoz)

Witness statements or expert witness reports are not documents, unless there is a single report or several that agree absolutely on a given point (SSTS, 150/1993, 13 May or 1961/1993, 30 December, amongst many others). The expert witness statements given during the hearings are politically loaded historical accounts, therefore there cannot be agreement on the conclusions.

As to Art 28 of the Penal Code, the concepts of joint responsibility or participation, immediate responsibility, induction, incitement, necessary cooperation, complicity, or pactum scaeleris, etc. and in general the entire concept of responsibility contained in the Supreme Court jurisprudence has been willingly and explicitly ignored, because a new definition was requested, despite the fact that responsibility could have been defined with such broad concepts as those contained in the 2nd Supreme Court Sentence of 6th November 1996, drafted by Mr. De Vega Ruiz “On the contrary, the defendants had CONTROL OF THE ACTION at every time, understanding control to be knowledge and consent of acting, following a complex plan, playing an essential and determining role for the successful outcome of what they had previously agreed”.

Therefore there is an attempt to establish a new concept of responsibility whereby knowledge and consent become an active ideological adscription, thereby overcoming all constitutional guarantees as well as the legal and penal jurisprudential limits. In this case, the form of ideological adscription sought, as well as being active and not passive, such as that of a voter in an election, is that of having some form of responsibility in an association or political party.

In short, there is an attempt to blame political leaders who show or demonstrate ideological affinity; which is impossible to prove, because thought cannot be a crime. This would be a new pactum scaeleris, unprecedented in jurisprudence, which to date has only existed in dictatorships or cases such as the treatment of Jews or Muslims in the XVI and XVII centuries in Europe, although at the time mere passive ideology was enough.