Individual reports:

Report nº3

04/03/05

José Manuel Hernández,
lawyer and member of ALA -Asociación Libre de Abogados- Madrid


SYSTEMATIC AND DISCRETIONAL USE OF PREVENTIVE INCARCERATION AS A BREACH OF THE EXCEPTIONALITY AND PROPORTIONALITY WHICH MUST RULE THIS FIGURE RESTRICTIVE OF PEOPLE’S LIBERTY

The session on March 4 was different and began earlier than other days. As usual, after the press went in and the attendants organised by the AVT (incidentally, what a strange way of demonstrating dignity, respect and memory by this organisation, with a vain attempt to prevent visual contact between relatives and friend of the defendants still in jail, held in the courtroom “fish tank”, sitting right next to the bullet-proof glass in a respectful attempt to pose an obstacle to the said visual contact) the rest of us, lawyers and observers, were allowed in. the relatives and friends of the defendants and other people wishing to attend the trial must wait and are only allowed in once the session has begun.

Last Friday, when I went into the courtroom with the Observer sent by the Basque regional Government, we saw an episode of high emotional intensity. The defendants who are still in jail were hugging each other, in a kind of collective affective communion, a sharing of ideas and affection. The hugs became fond farewells and several of the defendants held in the “fish tank” began to leave and hug the free defendants, who sit in the centre of the courtroom, and sat beside them. The six defendants who’d just left the “fish tank” as they were no longer preventive prisoners looked back eagerly and sought out the eyes of their loved ones among the people sitting on the benches behind the courtroom glass. But they could only find the journalists, in the first row, the AVT members in the next two rows and in the row behind the latter, the Observer from the Basque regional Government and myself. They were unable to see their relatives and friends. They were not there yet. They were still going through the procedure of getting into the building and then into the courtroom. On that day, it seemed to be more of a punishment than a bureaucratic formality.

After a while, the friends and relatives began to trickle into the room and were able to see what had happened. The eyes of the defendants sitting in the centre of the room could now meet the eyes they were looking for. They were unable to hold back their emotion. The thick bullet-proof glass down the middle of the courtroom could not stop the strong current of affection and hope shown in those faces. Six people, three girls and three boys, all very young, are still being prosecuted, but they have ceased to be preventive prisoners; four years after they were arrested.

Depriving someone of their freedom should be considered a punishment or a measure to be used as the last resort; it should therefore only be used when any other punishment or measure is shown to be clearly inadequate in relation to the seriousness of the crime. Provisional incarceration, or remand in custody, is a measure to be used in exceptions, according to jurisprudence and legal doctrine.

Articles 502 and subsequent of the Criminal Prosecution Act (Ley de Enjuiciamiento Criminal) regulate this figure, which must have two basic characteristics: its application only as an exceptional measure and its proportionality. Exceptionality stems from the fact that, in our legal system, the freedom of the defendant or accused must be the rule and deprivation of freedom should be an exception to that rule. The principle of proportionality in cases of remand in custody means that the rules restricting fundamental rights, insofar as they restrict the right to be presumed innocent and the right to freedom, must be applied in a manner proportional to the aims intended.

The Constitutional Court, in sentences such as the on passed on 21 February 2000 (47/2000) among others, has set out the conditions that the figure of remand in custody must fulfil in order to abide by the Constitution, article 17. In fact, in that very sentence, the Constitutional Court proposed the possible unconstitutional nature of articles 503 and 504 of the Ley de Enjuiciamiento Criminal, under article 55.2 of the LOTC.

Within the European framework, the aforementioned conditions required for remand in custody to abide by the constitutional mandate are supported in sections A6 and B5, a, of Recommendation Nº R (92) 17 of the European Council, on coherence of sentencing, adopted on 19 October 1992, and Section 1 of the Appendix to Recommendation Nº R (99) 22 of the European Council, dated 30 September 1999.

We cannot ignore or forget the amendments introduced to remand in custody by Organic Law 14/2003 of October 24; the amendment of the Ley de Enjuiciamiento Criminal driven by the Partido Popular and which ahs not been questioned or modified by the new government elected in March 2004.

In any case, a detailed study of the figure of remand in custody would exceed the aim of this paper as this is part of an initiative to monitor these proceedings from a legal point of view, in an attempt to defend fundamental rights and legal and procedural guarantees; in other words, the aims of the Euskal Herria Watch International Jurist Commission Against Criminalisation of Ideas in the Basque Country. However, it was necessary to highlight the fact that penal justice, as an indisputable good as long as it upholds procedural guarantees, must never be sought by violating the constitutional aims of exceptional precautionary provisional imprisonment; other precautionary measures which do not involve deprivation of freedom must be sought.

In these proceedings, the use of remand in custody has been systematic and discretional and has therefore been far from the constitutional requirements of exceptionality and proportionality, in an attempt to obtain an abusive exemplary affect. The fact that the court trial has begun just before the four year limit for remand in custody for several of the defendants proves this assertion.

In this case, the public prosecution requested an extension of the said legal limit by four months, but the Tribunal decided against this and issued a release order for the six defendants who had spent four years in jail, rejecting the argument about undue delays introduced by the defence, which had been posed by the public prosecutor and supported by the lawyer for the AVT. This decision was contested by one of the judge’s personal vote, Carlos Ollero’s. It is worth remembering that this judge, together with another two, was punished following the release and later escape of drug trafficker Carlos Ruiz Santamaría.

In our view, the request made by the counsel for release of the defendants still being held in custody has good founding in the constitutional doctrine and is supported by the fact that the events subject to trial are markedly political in nature, as is the development of the trial itself.

The trial is ongoing; there are still many witnesses to take the box. We have observed accounts of the activities carried out by the youth organisations Jarrai, Haika and Segi. Evidence of this was given during recent days by leaders of other youth organisations from the Basque Country. The fact that the said youth organisations took part in various social and political campaigns, together with other organisations, each of them from their own ideological point of view and autonomous methods for decision making, has been attested to. Certainly, this trial against 42 young men and women, accused of being member of the aforementioned youth organisations, judging by what we have seen and heard in Level 1 of the Basement at the Audiencia Nacional, is by all means a course on the political realities of the Basque Country over recent years, seen from the point of view of the various political expressions in the Basque political arena and which represent an important section of Basque opinion. Should we expect the public prosecution to drop the charges it brought or to substantially modify them, in view of the progress of the trial? We shall know in a few weeks.

José Manuel Hernández de la Fuente. Lawyer and member of the International Jurist Commission Against Criminalisation of Ideas in the Basque Country