Individual reports:


24th of April of 2006

Report Nº 15

Micòl Savia,
italian lawyer and member of the EALDH European Association of Lawyers for Democracy and World Human Rights

REPORT – Oral Hearing 24/04/06

The Euskal Herria Watch invited me to attend a session of the trial of Case 18/98 on 24 April, in an international observer capacity. When I arrived at the Audiencia Nacional I was eager and interested and there were a number of questions in my mind. I could not forget the large number of people who I saw marching in the streets of Bilbao in February, in support of the defendants and demanding the macro-trial be dropped. I could not forget the seriousness and grave atmosphere at the march, the large numbers of social and political groups taking part, the cheers from the people.

However, the trial was a lightning-speed experience. I was aware that the hearings usually take place on three consecutive days of the week, but on that day it was adjourned shortly after beginning, because one of the defendants, Jokin Gorostidi, could not appear in court. He was to take the stand as a defendant in the Xaki piece, but he had “justified” leave. He had suffered a heart attack three days earlier and was in a deep coma in a hospital in Donostia.

After deliberating and analysing the medical report presented by the defence, the court had to adjourn the trial until May 8 to await news on the state of the defendant. Later on, I was to hear that Mr. Gorostidi, a historic activist in the Basque left-wing pro-independence movement, would never appear before the Audiencia Nacional again. After miraculously surviving two death sentences because of his political activity during Franco’s dictatorship, he died defending his political activity in Zapatero’s Spain. The past has not gone away.

Despite my brief experience, I was able to witness cross-examination, to read decisions by the court, to exchange opinions and the atmosphere with the protagonists… It all seemed really “special” to me.

The first shocking aspect was the general atmosphere in the courtroom.
Seeing as almost all the defendants are in a sort of “conditional release” on bail, as this is a macro-trial against 59 suspected members of an armed organisation, all of them in one place, hundreds of years in jail at stake; I thought I would find an impressive security operation in place, lots of police, lots of tension. This was not the case. The courtroom was nearly entirely taken up by the defendants, men and women of all ages; journalists, lawyers, political leaders, intellectuals, activists from various fields of society. I was surprised to see they were wearing the same ID tag as myself: it said “public”. A mere 4 or 5 police officers, very relaxed, with their standard-issue gun in its holster.

This “public” was polite, cultured, relaxed. Some of them read the newspaper, others waited to be allowed to go outside and smoke a cigarette, others paid attention with interest. It was a pleasure to talk to them! All in all, the atmosphere seemed unfitting with the nature of the trial and the charges.

Another aspect that surprised me was finding out that the trial only takes place if all the defendants are present in the courtroom. Rather, what surprised me was to find out that being present in the courtroom is not a right of the defendants, in their best interest, but an obligation imposed on them. It seems evident that this is not a measure aimed at guaranteeing the defendants have full knowledge of the proceedings and a better chance to exercise their right to a defence. However, this measure is also subject to exceptions: suffice to say that Mr. Soto, one of the defendants whose declaration I was able to hear, was unable to attend at the actual time when it was his turn to declare, due to an operation. The trial was not adjourned, despite the insistence of the defence, despite the fact that at the time his co-defendants in the Ekin piece were being called to declare.

The rationale of this measure is difficult to understand, especially considering the inevitable and logical dilatory effects on the length of the trial. When talking to the defendants, all of whom live in the Basque Country, I realised what it means to attend the trial in Madrid every week: leaving at 4 in the morning, hundreds of kilometres in minibuses, there and back again, three days away from home and their families, no chance of holding a job. I realised the cost of this in economic terms, in health terms, in stress, and I was not surprised in the least when I hear that many of them have suffered various illnesses since the beginning of the trial. The logic behind the obligation to be present at the trial may appear clearer if seen as a punitive measure. I also heard how the group of defence lawyers, seeing as Case 18/98 is made up of several separate pieces, asked the Tribunal to separate these pieces and allow the defendants to attend the one in which they are involved. Was this a show of strength by the Tribunal?

Cross examination of Mr. Soto showed the inquisitorial nature of the trial and an intense and worrying involvement of the Tribunal in this. The Tribunal, through its chair, rather than maintaining an impartial stance, nervously conducted cross examination, raising objections, rudely silencing both the defendant and his lawyer… “Overruled!”, “shut your mouth!” Mr. Soto, with the help of his lawyer, was trying to say he was not in a fit state to declare because, a violation of his right to a defence … “shut up!” … he was not allowed to finish. The Court showed no intention of including his words in the minutes. Beyond the incorrect and hysterical tone employed by the judge, I was very impressed by the inversion of the role of the Court and the State Prosecution. I found it deeply inadequate that the Judge had no concerns about appearing impartial and super partes and, rather, actively took part in cross examination, even treating the defendant as “presumed guilty”. On the other hand, the Public Prosecution sit back in silence, with no need to intervene except to support the Chair of the Tribunal, who was too agitated to conduct cross examination. His tone was professional and conciliatory.

Anyway, Mr.Soto, before being made to go back to his seat in the midst of amusement expressions by the other defendants (in view of the farcical going-ons) was given the chance to say “the charges are false; I am not a member of ETA”.

I was impressed by another thing. Before proceeding with cross examination, the Judge asked the defendant about his intention –or otherwise- to answer the questions of the prosecutor with a sarcastic formula like “you have no intention of…, do you?” Despite the negative reply, the Prosecutor went on to read all his questions, which were left unanswered. These issues may appear to be a matter of detail but they are not so. This is because Mr. Soto is standing before a Special Tribunal, defending himself from an extremely serious charge, before microphone and with his mouth shut. These are no mere details in the light of numerous international Agreements and Conventions stating that defendants must be considered innocent until proven otherwise; the right to be tried within a reasonable period of time by a fair and impartial judge and the right to a trial in which both sides have equal conditions are the minimum requisites a trial should fulfil if it is to be considered fair. These principles are so basic that they are universally acknowledged as inviolable rights of people.

Leaving the Audiencia Nacional, I felt uncertain. Why were the defendants not being given a fair trial? During the following days, placing my observations into a broader context, my perplexity became deep concern: taken as a whole, the argument for the accusation is so untenable that it could never stand up to a “normal” trial. What is happening in Macro-trial 18/98 is not only an aberration from a legal point of view, but also unacceptable from a political point of view. These proceedings, in fact, seem like an incorrect and hard-line attempt to resolve the deep Basque social and political conflict by radically eliminating the “irritating” left-wing independence movement from the political scene. I do not really know this movement aside from its aims of independence and socialism and that it deals with the promotion and defence of the rights of the Basque People in various ways. But this does not matter. The issue is not whether to stand in solidarity with a specific cause. What is important, what should be considered, is that there is a mass grassroots movement representing certain political and social demands, which is being attacked on every front by the judiciary and the security forces, supported and/or driven by the Government and with the consent of the mass media.

What is important is that this attack involved, as a precaution, the ban of political parties and social and cultural organisations, of foundations, of youth organisations, the closure of businesses, newspapers, radio stations, social centres; proceedings against trade unions, investigation into banks, searches of lawyers’ offices, mass arrests…

What is important is that this attack is carried out in a brutal and illegitimate way: arbitrary arrests, secret proceedings, illegal searches, systematic and repressive use of remand in custody, incommunicado arrests for up to five days with no formal charges, use of torture…

What is important is that the operation is being justified with an absurd theory based on mere suspicion and which, substantially, criminalises the principle of self-determination of nations, a supreme principle in international law, that cannot be waived, which is being turned into an exclusive aim of the armed organisation ETA. Indeed, the argument holds that self-determination for the Basque People is one of the aims of the said armed organisation, any person who, individually or collectively, seeks the same objective, regardless of the means employed, must necessarily be doing so in order to favour ETA’s project. Consequently, anything and everything in the Basque independence movement is suspected of being driven and controlled by ETA. So companies are suspected of financing ETA, journalists who criticise someone are suspected of doing this to stigmatise that person and point them out as a possible target for a possible terrorist attack, lawyers who defend political prisoners are suspected of being a link between them and the group, defendants who report having been subjected to torture are suspected of doing so to de-legitimise the Spanish legal system and thereby legitimise ETA… The serious problem is that, in this case, all defendants are facing very serious formal charges of MEMBERSHIP and COOPERATION with an armed group. These charges carry very severe sentences of between 10 and 15 years prison.

What is important is that members of the Basque left-wing pro-independence movement are charged of membership of an armed organisation on the basis of their mere participation in the banned organisations which are allegedly controlled by ETA. There are no individual charges. Penal responsibility has been “simply” made collective. Indeed, the defendants have not been charged with any legally defined criminal actions: there is no indication of any violent actions, of having used arms or explosives. The defendants are accused of having been dissident activists, with behaviours such as criticising the Spanish legal for not respecting basic guarantees, defending the identity of the Basque People, promoting international backing for the right to self-determination, denouncing the restrictions that the Spanish legal systems sets on the sovereignty of the Basque People and the repressive means used by the Spanish State to maintain territorial unity… Overall, their aims and objectives are criminalised, instead of persecuting any concrete events they may have been involved in.

What is important is that very shaky evidence is being used to corroborate the accusations, such as phone surveillance, a free interpretation of an excessive tangle of documents, most of which lack any real weight as evidence, the defence is not being allowed enough time to prepare… pre-constituted police evidence is being used, with no chance to be scrutinised by both parties and the Tribunal gives them scientific, objective and infallible status; statements given under torture are being used… how can this suspicion be considered proven?

What is important is that all this is being dealt with by a “Special” Tribunal with a special jurisdiction, which applies a special set of laws, and which explicitly stated it does not care what international law and the European Court of Human Rights say.

What is important is that certain appeal judges in this Special Court were dismissed via certain pretexts, perhaps because they “dared” to say that, for instance, “mere membership of the Board of Administrators of… does not imply membership of an armed group”, that “pointing-out is not a legal-penal entity” and that “affording legal or healthcare assistance to deportees in other countries, criticising the Spanish legal system, promoting international support for the right to self-determination, and even broadcasting the so-called Democratic Alternative for the Basque Country inside and outside Spain are kinds of behaviour that, in themselves, lack any criminal significance, regardless of whether they are carried out by an individual or jointly by several people associated to such an end”.

What is important is that, currently, in the Basque Country, minimum democratic liberties and fundamental rights are suspended. The limits to freedom of speech and opinion, freedom of association, the existence of political freedom for Basque “dissidents” are truly uncertain and depend on a judge’s decision and the political situation of the time. In such a situation, before the decision by the Tribunal and perhaps for ever, Basques bravely continue to carry out activities which are similar to those carried out by the banned organisations. Those who continue to defend political prisoners, organise public demonstrations, criticise the Spanish legal system, inform people in other countries about the situation, etc. could be charged with terrorist activities at any time.

The fact that the very same organisations that were banned in Spain continue to work legally in the Basque provinces under French administration –with no action against them by the French authorities- should be food for thought.

What is important is that the Spanish Government has denied the UN Special Rapporteur on Freedom of Speech permission to carry out an official visit to investigate events in the Basque Country.

What is important is that all of this is happening amidst the silence of the mass media, which behave, once again, as accomplices.

Regardless of our cultural and political differences, regardless of what our opinion of the Basque issue may be, I believe this kind of repression in the heart of “civilised” Europe cannot and must not go unnoticed. In view of the serious situation –and with no wish to pass my own sentence, which is a prerogative of the judges- it is necessary to at least demand respect for the rules of a fair trial, among other reasons because it is the only instrument that can bring us closer to the truth. We must realise –soon! - that the Trial of Case 18/98 is not an issue that only affects Basques.

Case 18/98, dangerously attempting to confuse the concept of activism and the concept of terrorism, of ideological activism and of armed activism, is a serious threat not just for the Basque left-wing independence movement, but for everyone.

It is the duty of each of us and in the interest of all of us to raise the alarm, before words like freedom, justice and legality take on a revolutionary significance and a criminal relevance.

The trial of case 18/98 is also a dangerous example of how our governments, if they want to, can use the instruments of penal law to repress any form of political dissidence with full impunity and how they can reduce or extend the content of citizens’ fundamental rights and democratic liberties, according to their needs.

It is the duty of each of us, in the interest of all of us to rebel before the hypocrisy of human rights that only seem to be useful to justify the assault on oilfields or to denounce non-aligned governments –what would happen if a trial like this were to take place in Teheran or Havana instead of Madrid?

It is the duty of each of us, in the interest of all of us not to accept living in a world where external conflicts are solved with bombs and internal conflicts are solved with repression.

Finally, even if in the light of what I have explained here it may seem rather dangerous and criminal… I would like to express my deep, personal elkartasuna [solidarity] to all the defendants in the trial and to all those who continue to work and struggle, despite the threat.

Micòl Savia