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The Spanish Audiencia Nacional chose November 21st to begin the macro-trial against the alleged environment of ETA. Garzón’s theory, supported by the Ministry of the Interior and the two main Spanish parties and marked by the a priori view that “everything in the Basque independence movement is a part of ETA”, has thus arrived at the crucial test: whether a conviction based on this theory will be given by a tribunal.

The hearings begin after seven long years of waiting, arrests, jail for many of the defendants, millions of euros in bail, closure of companies and media, torture complaints and violation of procedural guarantees. The trial has begun, in a purpose-built pavilion in the Casa de campo in Madrid, now part of the Third Section of the Audiencia Nacional, in the midst of great security measures and an intense media deployment. It is thought that the hearings will go on for several months and that a large number of procedural and political incidents will take place. 56 defendants, all well known, with a public vital and political track-record; all of whom enjoy social respect and support, are facing charges which may result in years in prison. The fact that there are 300 witnesses and 40 expert witnesses scheduled suggests the trial will be very long and will take place under pressure from various sources.

As observers from the International Jurists’ commission, we adhere to the large number of opinions voiced since the beginning of the trial, indicating the serious violations of elementary legal and procedural guarantees. The first day of the trial was a foretaste of what was to come, with the tribunal intervening to limit both formal and basic rights of the defendants; against the backdrop of the terrible sentence requests against them, ranging between 10 and 51 years imprisonment.

The first sample of the drifting in criminal law occurred at the beginning of the first session, when the lawyers for the defence began their speeches requesting the trial to be suspended, supporting their request by arguing for four preliminary issues, in order to ensure the defendants’ fundamental rights were not violated. The preliminary issues set out were the following:

- Two people who were to appear as defendants had not been summoned to the trial or officially declared absent before the beginning of the trial. Therefore, the hearings could not begin without these people.

- Challenging of expert witnesses for reasons of the clash of interests occurring because they had also taken part in the investigation. The lawyers made a proposal for these members of the security forces to be called as witnesses instead of as experts.

- The fact that several companies had not been notified of documents that affected them and the request by the prosecution that these companies be disbanded.

- Documents that were pieces of evidence for and against the defendants were not in the courtroom, accessible to the parties, when the first session began.

All the preliminary issues were dealt with in less than half an hour and the tribunal decided there was no need to postpone the hearing.

The second instance of drifting in criminal law took place when the first of the defendants had only just started to speak, trying to explain why he did not wish to answer the questions of the prosecutions. The Chair of the Tribunal said: “we are not interested in the motive; sit down and answer your defence lawyers’ questions”. This has repeated itself with all those who have taken the stand up to now.

One of the most remarkable events to date took place during the early days of the trial, when the Chair of the Tribunal interrupted the defendant, who was answering his lawyer’s question about his political activity in 1977, by saying “we are not interested in your life”. In view of this intervention by the judge, the rest of the defendants protested, and they were expelled from the courtroom and warned that new criminal procedures can be opened against all of them if such events take place again, meaning the slight applause and the odd whistle heard in the courtroom.

A third example of the drifting of criminal law happened when one of the lawyers for the defence told the Tribunal that there are two decisions, one by the Human Rights Court in Strasbourg, dated 2 May 2000, in the Condron vs. the UK case, stating that no conclusions can be drawn from silence [the exercise of a right cannot diminish the right itself] and annulling a trial because the reasons why the defendant was remaining silent were not stated in the minutes; and another from the Spanish Supreme Court, dated 7 July 2005, stating that if the defendant chooses to remain silent there is no reason why the questions should appear in the minutes; to which the Chair replied, surprisingly and literally: “I’m not interested in what Strasbourg has to say”. She added “you object, go ahead and object, let it be recorded in the minutes” before the shocked looks of the defendants and lawyers.

The fourth instance of cutbacks on rights took place upon reading out documents, instead of showing them to the defendant on the stand, for him or her to identify them or answer questions about them. This, which is not a trivial issue, caused several of the defence lawyers to challenge the Tribunal for manifest partiality. The Tribunal itself resolved this within three hours, rejecting the challenge with a single phrase “due to a manifest abuse of law”.

We cannot but express our concern and alarm at the violations of elementary procedural guarantees that are taking place and at the attitude shown by the Tribunal at this trial. We believe that a Tribunal, which has a constitutionally imposed duty to carry out justice, must avoid any glimpse of authoritarianism in its work and, certainly, must uphold basic principles upon doing justice, such as legal protection for all people exercising their legitimate interests and rights, never allowing defencelessness to occur, protection of the right to a defence, to a trial with full guarantees, to the use of all appropriate means for defence and to the right to be presumed innocent.

The Tribunal has publicly said that they do not want this trial to turn into “a circus or a political trial”, but during the few days it has been running, it looks more like a summary trial from recent, pre-constitutional times than like a procedure with legal and procedural guarantees for defendants. Stewardship of a process and the use of procedural Law by the Court, in accordance with the powers it has, must be balanced with scrupulous exercise of all the rights the defendant has in law. This must be so in any trial; in this case, whereby events with a remarkable political, social and ideological angle are on trial, from which both the state and the private prosecution are inferring that, “this is terrorism”, the Court’s respect for the rights of defendants must be equally scrupulous, if not greater.

Arbitrary measures, limiting the defendants’ statements, the Court’s attitude we have witnessed in directing the proceedings, all lead us to conclude that concerns regarding the 18/98 Macro-case are substantially justified. Nine days with hearings have passed and the defendants are going through a very problematic process, due to the mentioned procedural derivations. we would not like to finish this brief report on the first days of the 18/98 Process without also expressing our concern about another kind of punishment the defendants are suffering, which they bear with fortitude and thanks to the support of their family and social environment: Being obliged to travel to Madrid and spending three days every week there (a long journey which has already brought on the first road accident involving several defendants) far from their place of residence, which occurs due to the existence of the Audiencia Nacional, which violates the legal principle of being tried by a local court, and causes problems in terms of the defendants’ jobs, separation from family and friends, large economic costs, etc. there are many issues at stake in this trial. One must never play with the dignity and the rights of people on trial. Therefore, we must insist that the doctrine stemming from jurisprudence in these matters must be upheld, in terms of full respect for their dignity as people, for their rights as defendants and for the elementary rules of any criminal process. If this does not take place, it will mean that we are not in the presence of a trial in a democratic state, but rather, in the presence of a flagrant abuse of law.

Jose Manuel Hernández. Lawyer, member of “Euskal Herria Watch”