Basque human rights decision puts Spanish state on the spot

At least 60,000 people march in Bilbao on October 5 against the Spanish state's crack down on Basque activists.

Anyone in Spain with the slightest understanding of human rights’ law knew that the Grand Chamber (full bench) of the European Court of Human Rights was bound to reject the appeal of the Spanish government over the case of convicted Basque Homeland and Freedom (ETA) prisoner Ines del Rio.

For decades, ETA waged an armed struggle for independence for the Basque Country from the Spanish state. In 2011, it declared a “permanent ceasefire”, ending its armed campaign.

Del Rio had been kept in jail beyond her July 2008 release date through the application of the Spanish Supreme Court’s “Parot doctrine”, introduced in 2006.

On October 21, the ECHR full bench struck down the doctrine as breaching basic human rights. It ordered Del Rio be released “in the shortest possible time frame” and be paid 31,500 euros in compensation.

The ECHR judges also charged the Spanish legal system with reviewing the cases of 60 other prisoners who have been victims of the doctrine. These prisoners have so far accumulated more than 200 years of illegal detention.

The Spanish state has now run out of avenues of appeal. Its National Court met two days after the decision was brought down and ordered the release of Del Rio and another ETA prisoner. It will now consider the other cases individually.

However, none of this has stopped People’s Party (PP) prime minister Mariano Rajoy and his cabinet from denouncing Strasbourg’s rejection of its appeal as “cruel”, “unjust” and “a mistake that hurts the victims of terrorism”. They defended the Parot doctrine as “good law”.

PP leaders were highly visible at an October 27 Madrid rally protesting the decision, called by the Association of Victims of Terrorism.

The Parot fix

The Parot doctrine was named after convicted ETA member Henri Parot, the first prisoner to whom it was applied in 2006. It was a judicial device to flout the maximum term of 30 years jail allowed under Spain’s former penal code.

Although courts often handed down sentences of hundreds of years, the sentence cuts gained by prisoners working in jail were applied to this 30-year maximum. Most affected prisoners rarely served a full 30-year term.

The Parot doctrine overturned this practice by applying sentence reductions to the original full sentence received. It was also retroactive ― applying to crimes committed before its introduction and before the present penal code came into effect in 1995. Subsequent changes to that code also increased the maximum prison term to 40 years.

Ines Del Rio was sentenced to 3828 years in jail in 1989 for her part in a series of terrorist attacks by ETA’s Madrid-based cell, including a 1986 bombing that killed 12 civil guards and wounded 78 other people.

Under Parot her original July 2, 2008 release date would have been extended to 2017.

In 2009, Del Rio unsuccessfully appealed the application of Parot in her case to the Spanish Constitutional Court. Last year, however, seven judges of the ECHR’s Third Section admitted her appeal against the Spanish tribunal’s negative ruling.

They found that the Spanish state's actions had violated articles of the European Convention on Human Rights, to which all European Union members must be signatories.

Spain immediately appealed, but the unanimous decision of the ECHR’s 17-member full bench on October 21 confirmed that the retroactive operation of the Parot doctrine that extended Del Rio’s jail term constituted an “illegal detention”.

Therefore, the decision taken to keep her in prison had violated Article 5 on the lawful detention of individuals.

The Spanish courts had also violated Article 7, which prohibits a “heavier penalty” from being imposed than that specified in the statute book at the time a crime is committed. The ECHR ruling noted that Article 9 of the Spanish Constitution also bars laws from being applied retroactively.

Mark Muller, one of Del Rio’s lawyers, summed up the essence of the case: “It is not about politics or terrorism, but about the universal principle of legality and the conditions that permit a state to deprive a citizen of freedom.”

Fallout

The court decision produced tears and anguish in the circles of terrorism victims and parts of the judicial system. How come the murderers of loved ones were being allowed to walk free?

Javier Gomez Bermudez, former head of the High Court's Penal Chamber, came out openly against the ruling: “It cannot be that someone sentenced to 20 years for robbery-homicide serves the same amount of time as a terrorist who has killed 30 people.

“It’s not necessary to talk about terrorism, it’s pure logic. Someone who rapes 30 children should not serve the same sentence as someone who has committed eight robberies.”

Six days after the ECHR decision, the atmosphere at the Madrid rally was vicious and vengeful. There were calls for the government to flout the ruling and to keep ETA prisoners in jail and throw away the key.

The featured slogan for the day was “For Justice with Victors and Vanquished!” Another feature was the large presence of groups supporting the former Franco dictatorship.

Speakers and placards attributed the Strasbourg ruling to the decision of the 2004-2010 Spanish Socialist Workers Party (PSOE) government to negotiate with ETA, conveniently forgetting the negotiations between ETA and the 1996-2004 PP government.

The crowd also abused representatives of the Rajor administration and the PP’s Basque Country leaders (“Traitors! Swine!”), and even called for a return of the death penalty.

The only PP figures who escaped the abuse were the representatives of its most reactionary, Spanish-centralist “Death to ETA” wing, such as former interior minister Jaime Mayor Oreja and former president of the Madrid regional government, Esperanza Aguirre.

“Where’s Rajoy? We want another right!” was one popular chant. Yet what can the Rajoy government and the PP-dominated Spanish legal system actually do?

Any acts of vindictive meanness (such as slowing down the release process, interior minister Jorge Fernandez Diaz's idea that Del Rio’s piddling compensation payment be given to terrorism victims, or banning released ETA members from accessing the dole) invite further appeals to Strasbourg ― and further international exposure of the biased Spanish legal system.

The only guaranteed action is furious competition between the PP and the hysterical Spanish-centralist Union for Progress and Democracy (UPyD) over who is the best “friend” to terrorism victims and best defender of the unity of the Spanish state.

One might think that these are two different issues, and that not all victims of terrorist attacks and their families are supporters of Spanish centralism.

This would seem especially the case when ETA terrorist attacks also took place in Catalonia (with its own nationalist struggle), the state-sponsored terrorism of the Antiterrorist Liberation Groups (GAL) left victims in Spain and France and the 2004 Madrid train bombings had nothing to do with ETA.

You might even think that victims of terrorist attack just need support as traumatised human beings.

Not so. Through its support, including huge financial backing, to the main associations of terrorism victims, the PP has managed to present the victims of terrorist attacks as heroic defenders of the Spanish constitution against secessionist criminality, chiefly Basque.

Going where?

However, there is a danger for these forces in their drive to manufacture as much outrage as possible against Strasbourg and turn it into political capital.

This is that the mass of the population, especially in the Basque Country and Navarra, is longing for a negotiated settlement of the outstanding issues after 50 years of armed conflict.

These include the final dissolution of ETA (which it says it is ready to negotiate), the return of Basque prisoners to jails in the Basque Country, the release of left-nationalist leader Arnaldo Otegi and an end to the special national police and civil guard presence in those regions.

The two years of peace since ETA declared its permanent ceasefire have only intensified that longing for normality.

A reflection of this mood was the complete failure of motions condemning the release of ETA prisoners to get broader support in council sessions in Navarra and the Basque Country.

Within the PP's Basque Country branch, there is already deep unease at its likely electoral destiny if the national PP government persists with its stance of rejecting any “negotiation with the terrorists and their representatives”. In other words, if they fail to support anything resembling a peace process along Irish or South African lines.

In this atmosphere, the continuing national government bid to criminalise Basque groups, such as the prisoners aid group Herrira and the youth movement Segi, as “just wings of ETA” is already backfiring.

Demonstrations in favour of a genuine peace process that ends political persecutions and brings Basque prisoners home are gaining support.

In an October 29 statement, Sortu summed up its response to the ECHR decision and the Madrid demonstration, which “does nothing but reaffirm us in our conviction that a just and lasting peace can’t be built on a schema of ‘victors and vanquished’ or on the desire for revenge”.

“On the contrary,” the statement said, “the peace that the Basque people long for must contemplate the recognition of the pain suffered by all the victims, and have as a basic ingredient respect for the human rights of everyone”.

“In that sense, the sentence from Strasbourg is an opportunity to modify the prison policy that the decision of the ECHR has called into question, and for the Spanish government to finally give peace a chance.”

[Dick Nichols is Green Left Weekly’s European correspondent, based in Barcelona.]