Individual reports:

Report nº2

02/03/05

Silke Studzinsky,
lawyer in Berlin, member of the German Lawyers Association


The International Commission


The Euskal Herria Watch international commission (www.ehwatch.org), made up of lawyers from various countries, had the opportunity to follow the trial against the Basque youth organisations Jarrai, Haika and Segi at the Audiencia Nacional in Madrid which began on 11/02/2005. The public prosecution is accusing 42 young Basques of involvement in a terrorist organisation. The representative of the Victims of Terrorism Association (AVT), acting as the private prosecution, believes the defendants have also committed a crime of genocide. According to the charges, the defendants were members of the Basque youth organisation JARRAI or the organisations that substituted it, HAIKA and SEGI, which in turn would be part of ETA.

These youth organisations carried out their activities legally until investigation Judge Baltasar Garzón developed the following thesis: political, cultural and social organisations as well as certain individuals, active in various fields of work, are part of ETA, making up a “state within the state” because they acted on behalf of ETA’s interests, or because their aims and goals coincide with the aims and goals of ETA or even, because their actions were done following instructions from ETA. The evidence brought forward by the public prosecution is a large amount of discussion material and documents, pamphlets and similar documents and the confessions of convicted members of ETA and other youths who allegedly also members of the youth organisations. During the first 13 days of the trial, the public prosecution attempted to confirm Judge Garzón’s thesis.

After observing the trial for several days, these are some points I would like to highlight:

1- The witnesses called by the prosecution, convicted for membership of ETA or for actions of sabotage –known as Kale Borroka- stated there were no guidelines issued, no control mechanism or any other form of connection between ETA and the youth organisations.

2- The youth organisations acted autonomously and did not follow ETA guidance. They made their own decisions and dealt with issues such as youth rights, living conditions, the struggle against compulsory military service and other social issues, with a socialist society in the Basque Country as their goal.

3- A large proportion of the documents presented as evidence, whereby the prosecution wished to prove the youth organisations and ETA worked together, are of doubtful and non-authoritative origin.

a. Documents allegedly seized in the witnesses’ possession and which cannot be identified as belonging to them.
b. Other documents, allegedly found in computer belonging to one of the witnesses, were dated one year after his arrest. The witnesses indicated that the documents could not be attributed to ETA due to the issues they dealt with and their style.
c. The remaining documents were allegedly seized from one of the witnesses who did not recognise them.

4- The witnesses that had previously made confessions as to the existence of a structural and financial connection between ETA and the youth organisations and said that ETA controlled and supported their activities stated that the said confessions had been obtained under torture.

The witnesses declared that their confessions had been previously prepared by the police and that they were threatened and beaten in order to make them sign the confessions. On the way from the police station to the Audiencia Nacional before they were taken to the judge, they received threats regarding themselves and their families, unless they ratified their confessions before the judge.
They stated they had only signed the confessions because of the threats and beatings.

5- Summary:
With no individual charges of criminal behaviour, the construction of a structural link between JARRAI, HAIKA and SEGI on the one hand and ETA on the other is more than doubtful. The evidence is based of confessions made under torture or documents with no value because their origin is uncertain.

Observation of the proceedings raised the following serious concerns:

1- 23 out of the total 33 defendants present are still in preventive custody. Six of them have spent 4 years in jail. This is so, despite the fact that the case was ready for trial since the end of 2003. This is a violation of article 5.3 of the European Human Rights Convention and article 14(2) of the International Civil and Political Rights Agreement. According to these agreements, defendants are entitled to a trial within a short period of time. There is no reason, even the length of the investigation, to justify the fact that the trial did not begin until 2 years after the investigation of the case was finalised.

2- The defence was only notified of the beginning of the court trial with a few days notice. This is a considerable obstacle for the defence and a violation of article 6(3b) of the European Human Rights Convention and article 14(3b) of the International Civil and Political Rights Agreement. These articles state that defendants have the right to time enough to prepare their defence.

3- On 25/02/05, the public prosecution requested an extension of the period of provisional incarceration by a further 4 months, with no legal basis whatsoever. The reason was that if a sentence had not been passed by March 6, 2005 six of the defendants would have fulfilled the maximum legal time limit for custody awaiting trial and they would have to be released. The prosecution argued that the defence had caused undue delays in the proceedings and that was why the maximum time limit should be extended.

4- The defendants and witnesses who wished to speak in Euskara (the Basque language) had no qualified interpreters available. Translation was extremely inefficient and incorrect and did not express what the defendants said.

5- The charges are not based on concrete evidence; rather, they merely follow the thesis that the youth organisation JARRAI and the subsequent HAIKA and SEGI followed ETA orders and leadership. No facts were provided.

6- The defendants who are in jail are dispersed in distant prisons throughout the Spanish state, which is a severe obstacle to maintaining relationships with families and friends.

7- Police witnesses are automatically considered to be protected witnesses, which means they cannot be seen and are only identified with a number. The defendants and the public can only hear them with difficulty, but they cannot see these witnesses. The argument given is that the defendants are charged with crimes of terrorism and therefore this raises security issues for the said witnesses. The courtroom setup is designed to guarantee this anomaly, whereby protected witnesses can be heard but not seen.
This is a violation of the right of defendants to recognise the witnesses.

8- The defence is only allowed limited contact with the defendants, who are kept in a safety cage. This is a violation of the right of the defence to have contact with the defendants throughout the trial and thereby to establish the line of defence.