Individual reports:

Report nº17

Amalia Alejandre Casado, María Luisa Martín Abia and José Manuel Hernández de la Fuente. Lawyers from Madrid, Observers at Trial 18/98 for Euskal Herria Watch.


EH Watch: Cancel Macro trial 18/98+.
Civil and political rights for all citizens

From the closure of the daily newspaper Egin to the beginning of the trial of Case 18/98, a strategy of ideological criminalisation has been in full sway. In December 2000 the so-called “Agreement for liberties and against terrorism” was signed by the PP in office and the PSOE, in the opposition at the time. In the foreword to the agreement, under the rhetoric of “reinforcing unity to make liberties fully effective and end terrorism” both parties criminalised all the signatories of the Lizarra Agreement, expressly accusing them of “setting a political price to the abandonment of violence”. That price, according to the PP and the PSOE, was “the imposition of self-determination in order to achieve independence for the Basque Country”.

After calling on Basque parties EA and PNV to leave the Lizarra agreement, the signatories commended the Basque People for their “… capacity for home rule in the framework of the Constitution and the Statute of Guernica”. This is an interesting way of viewing the historical evolution of a people that rejected the Spanish Constitution by a majority and that includes a very large section of society opposed to the autonomy statute.

Following the cease fire declaration by ETA on 22 March 2006, we have an opportunity to assess the limitations of the powers of the state in facing the ongoing proceedings. The existing constitutional framework is one of these limits. This is because it denies the right to self determination. The PP-PSOE agreement says it is even possible to talk about reviewing the framework “while respecting the established rules”; as if these were immutable. In our view, the only democratic solution is acknowledgement of the right to self determination. Therefore, a change in the constitutional framework is required.

Case 18/98 is the original case through which the state is attempting to equate legitimate social and political activities to complicity, cooperation and membership of ETA. Many other proceedings stem from this first Case. These have marked a period of notorious repression.

The substance of the theory implemented by judge Garzón and the PP-PSOE pact of December 2000, despite the media battle between the two parties regarding a resolution process in the Basque Country, continues to reveal itself in the ongoing trial at the Casa de Campo. The defendants travel to Madrid for three days every week, suffering a terrible cost in personal, emotional, economic, etc. terms. This toll, although it directly affects over fifty people and their families is actually aimed at the section of the Basque People that wishes to exercise their right to decide.

The defence lawyers received a Christmas surprise in the form of over one hundred boxes with the one hundred thousand pages of Preliminary Proceedings 75/89, an unspeakable present. On the Spanish equivalent to April Fools ’ Day, December 28th, the court set the days and times during which the defence would be allowed to study the documents, they were not allowed to take them to their offices.

Proceedings 75/89 show that the police and judiciary investigation had begun in 1989, years before the beginning of the official investigation of Case 18/98. Despite their numerous requests and appeals, the defence had no access to these documents for several years. The prosecution, on the other hand, certainly had access to all the documents. The Court agreed they should be brought to the courtroom, but they arrived on December 21, 2005, one month after the beginning of trial.

On January 9, 2006, the Court received a surprise: the defence lawyers requested the protection of their respective Bar Associations, the Basque Council of Lawyers and the President of the Audiencia Nacional. They were granted support, which allowed them to scan Preliminary Proceedings 75/89 in order to be able to exercise the right to an effective defence, although they had to carry out all the scanning with their own means. The Court said it did not have the means to do this job.

The days in March and April when defendants Xabier Alegría, Mikel Egibar, José María Olarra and Nekane Txapartegi testified were particularly tough, with all those present hearing of the horror of ill treatment and torture. The defendants, from their seats, denounced the disgrace of torture with T-shirts that said “Stop tortura”.

On September 4, the hearings are set to resume. For the defendants, these represent what Walter Benjamin called “the worst form of violence, that which empties law”. (More information on the development of the trial of Case 18/98 in the Partial Reports published on the EH Watch initiative’s web page)

In recent years the government and the main opposition party have initiated a multitude of legal changes which have amounted to an onslaught on liberties and procedural guarantees in the Basque Country: the PP-PSOE Pact of December 2000, the Law of Political Parties of June 2002 and the ban on parties and election candidatures, the closure of the Egunkaria daily in 2003, numerous cases of torture, preventive arrests and judiciary intervention against demonstrations, pickets, press conferences etc. organised by the Basque Independence movement.

Continuity of the trial, despite the ETA cease fire, is proof that both the PSOE and the PP continue to have a securocratic outlook towards the Basque conflict.

The Basque struggle, which is a true struggle for democracy, peace and human rights, must also receive support inside Spain. Therefore, the recognition of the right to self determination for a dialogued solution to the conflict is necessary here and now. Support for this right is a central element for the ethical and political health of social movements inside the Spanish state. The Spanish Constitution is the only constitutional text in the world that almost explicitly denies the right to self determination (Art.2, Introductory Tome to the Spanish Constitution)

Case 18/98 must be called into question more than ever in the context of a resolution process. The Case stems from political motives, it is arbitrary, it is based on a foretold conviction, a myriad of arbitrary juridical and procedural actions are taking place, against the rule of law, the fundamental rules of democracy and the liberties and legal guarantees of citizens. In addition the legal principle that “societies do not commit crimes, individuals do” has been breached. The “penal code for the enemy”, developed by judge Garzón’s thesis views merely defending the right to self determination as a crime, even if this defence is carried out through legal political, social or cultural activities. The Supreme Court verdict 829/2006, of July 20, 2006, talks about the Penal Law for the Enemy, referring to Guantánamo. We wonder whether this doctrine will also be applied in the Spanish state.

The Spanish state’s democratic deficit regarding the conflict demands a broadening of the right to diversity in information about the dialogue process the PSOE government has opened up with the main Basque actors in the conflict: ETA and Batasuna.

In our opinion, an opinion which we share with many other social actors, in order to facilitate a democratic process and support talks, the obstacles must be removed and civil and political rights must be recognised for all citizens. Repealing the 2002 Law of Political Parties would be a step in the right direction. Therefore, we support the demand for Trial 18/98 to be cancelled. Because rights and liberties must be reinstated and filled with content. Because civil and political rights, together with juridical and procedural guarantees are for everybody, including the defendants.

Amalia Alejandre Casado, María Luisa Martín Abia and José Manuel Hernández de la Fuente. Lawyers from Madrid, Observers at Trial 18/98 for Euskal Herria Watch.