Two kinds of justice in Spain

In the early hours of October 15,
2016, in an Alsasua bar (in Basque, Altsasu), in the Basque Country, in the
north of Spain, a brawl broke out between a number of young people and a couple of Guardia Civil (Spain's paramilitary force). Damage assessment: a swollen lip and a broken carpal. This is
nothing unusual in a country like Spain in which, in 2016 alone, there were
9,571 reported clashes between policemen and citizens, often described as
resistance to public authority. In this Basque case a complaint was also filed
before the local authorities.

But then something out of the
ordinary happened: "We got scared when we saw how the case our kids were
involved in was being treated by certain Spanish newspapers and also on
television. They said that our Alsasua town is divided, that Civil Guard
officers cannot move freely without being insulted by the people. They spoke of
a situation of extreme violence, which has nothing to do with the reality of
the place. The press were preparing the ground for what came next," says
Bel Bozueta, the mother of Adur.

Adur, one of the eight people
convicted in this case, has in the meantime turned 23. Adur's lawyer, Jaione
Karrera, traces the course of events: "A few weeks after the brawl, an
organization for the victims of terrorism filed a complaint before the National
Court in Madrid. The competence of this national court extends to particularly
serious crimes such as terrorism, and its judgments always issue heavy
sentences." What is really being attempted here is the creation of a linkage
of these Basque adolescents with a movement that calls for the removal of the
civil guards from the Basque Country – and therefore indirectly, also with ETA.

A case of terrorism

"We have stated several times
that there has never been any evidence that any of these kids belonged to such
a movement. There are brawls like this every weekend throughout the country,
some with weapons such as baseball bats, and the outcome is often quite serious
injury. None of these cases has ever been brought before a special court,"
says the lawyer. The competent courts in the Basque Country also confirm in
their statements that there is no indication of terrorism and that the case
must be tried by local courts.

But Madrid insists. The conflict over the
court’s authority is brought before the Supreme Court. This will not rule out
the possibility that terrorism may be involved and the case is passed to Carmen
Lamela of the National Court, the same judge that a year later was to rule in
favour of the pre-trial imprisonment on charges of "rebellion" of the
candidate for the presidency of the Catalan government Jordi Sànchez, and the
chairman of the Catalan organization Omnium Cultural, Jordi Cuixart.

The families of Altsasu can only
watch these events unfold with amazement and with fear. “The civil guards
really pull their weight and have a very dark history. We lived with this
police force in the Basque Country during the ETA era: it was very bad. And
from the beginning we saw that there was some political interest in making our
case a very big affair", says Adur's mother. What most scared them was a
tweet by the then Spanish prime minister, Mariano Rajoy, in which he assured the
people that this attack on the civil guards would not go unpunished. Early in
the morning of November 14, policemen knocked on their door and their son was
taken away. Seven other friends were also detained.

The accusation is terrorism. The
chief public prosecutor called for prison sentences of between 50 and 61 years
for seven of the defendants, and 12 years for a young girl. “There was a very
short investigation phase. At the National Court, statements by our clients
were taken and because of the putative risk of flight they were imprisoned near
Madrid. Three of them stayed in prison until a sentence was issued, 19 months
later, and under the special conditions that apply to terrorists," says
Jaione Karrera. Adur's mother describes what this meant to the student teacher
and musician, then 21 years old: “Each communication was supervised. They could
not participate in activities within the prison grounds. They were subjected to
severe controls by security personnel. We asked for a conversation with a
psychologist, for the first months were very hard for our son. That was in August
2017, but the psychologist could not see him until June 2018."

No due process

Adur's lawyer is convinced that
justice is prejudiced against her clients. “Had the defendants not been from
the Basque Country, these disproportionate charges would not have been made,
nor would pre-trial prison have been stipulated. The whole process seemed to be
an anachronism". ETA abandoned their weapons in 2011, and at that time the
defendants were still under age. "All of our arguments were rejected. Only
the report of the affected Guardia Civil agents was taken into account. We could
not manage to file a single document, video, or even objective evidence such as
a plan of the bar, to at least put forward a version other than that of the
prosecution." Nor was any of the defence evidence heard that referred to
the political situation in the town, although part of the prosecutor’s case was
based precisely on that.

But things got even worse. In
February 2017 the defence learned that one of the judges was married to a Guardis Civil officer, and had a military police medal. In spite of this, the bias
appeal was turned down.

The June 1 judgment was consequently
very tough. The National Court, fearing that the verdict might be subsequently
annulled, withdrew the charges of terrorism. They were condemned, instead, for
bodily harm, disruption of public order and an attack on the public authority.
Three of the defendants got the maximum sentence of 13 years, the others got 9
years and the girl got 2 years. The defence asked for a review. In spite of
this, a few days after the sentence they were jailed by the civil guard.

Their families protested about the
excessive convictions and the many irregularities. Thousands of people from all
over Spain went to the Basque country to demonstrate alongside them. “There was
no presumption of innocence. From the first moment there was only the version
of the prosecution and not that of the defence", summarizes lawyer
Karrera. Moreover, even during the pre-trial detention they were held almost
400 km. from their families. This dispersal tactic has been practised for
decades with Basque prisoners and, since last autumn, also with jailed Catalan
separatists. Bel Bozueta, Adur’s mother, above all sees political motives
behind the verdict: "The Guardis Civil is an important element of national
unity of Spain, it is regarded as a cornerstone of the Spanish nation. And
although the accusation of terrorism could not be upheld, we continue to watch
television commentary that argues in this direction, so that the ordinary
citizen thinks that our kids must somehow be terrorists. There is a very clear
reasoning behind the sentences, and it is revenge." Bel sees here a
parallel with Catalan imprisoned activists and politicians. And in both cases
she sees a clear sign that in Spain there is no effective separation of powers.

Long pre-trial prison

Catalan relatives and lawyers
complain of irregularities as regards both pre-trial prison and procedural
defects. The former foreign minister of the Puigdemont government, Raül Romeva,
in the course of a few months has been imprisoned twice. In mid-June the
Supreme Court confirmed the charges of rebellion and sedition against him and
14 other Catalan politicians. The corresponding sentences are 30 and 12 years.
"Rebellion in Spain entails the use of violence, but my husband has not
even had a stone in his hand," says Diana Riba, Romeva’s wife. She recalls
that the charged members of the Catalan government have barely had enough time
to speak properly with their lawyers. Txell Bonet, the partner of Jordi Cuixart
who has been in prison for nine months, is convinced there will be no equitable
process. "It's like the Alsasua case: they ask for the maximum sentences
to keep them locked up. In the end they may not be condemned for rebellion, the
conviction may be less than that of the Basque kids. But they will be condemned
even though there was no violence".

Incarcerated activists. September 20 protests, 2017. Jordi Borras. All rights reserved. Jaume Alonso-Cuevillas is counsel for
some of the exiled Catalan politicians, including Carles Puigdemont.
Alonso-Cuevillas has been a lawyer for 35 years and is a full professor of
procedural law at the University of Barcelona. "In Spain, pre-trial
detention is improperly applied as a kind of prior punishment. In our cases it
is quite clear that it is a matter of intimidation. No Basque, no Canary
islander, is to have the idea of emulating the Catalans".

Like Basque
lawyer Jaione Karrera, Alonso-Cuevillas is convinced that the fundamental
rights of his clients have been violated. His defence was also constrained:
"We were given very little forewarning that the defendants, due to a rebellion
accusation that could lead to a sentence of 30 years in prison, had to show up
the following day at 9 a.m. in Madrid, that is to say, 600 km away. I received an
150-pages’ thick document, but no documented evidence was included." The
Catalan lawyer also complains about the abuse of criminal law: "One could
say that this is about disobedience, not rebellion. Of course, breaching public
order with armed violence is a crime everywhere. In Spain, this happened on
February 23, 1981 with the civil guards’ coup d'etat, or Franco’s 1936 military
revolt. Here, however, there was no violence, but just a democratic process.
The problem is that both the prosecutor and the Supreme Court view themselves
as victims. And that is why it is not being judged objectively", says
Alonso-Cuevillas.

Conservative judges

Joaquín Urias, a former Spanish
constitutional court judge, and a professor of constitutional law at the
University of Seville, does not believe that these processes against Basques
and Catalans are a problem of lack of separation of powers. But he does agree
with the Catalan lawyer as regards the lack of objectivity: "In Spain it
is not that the judges do what the government wants. The problem is that the
judges themselves represent a particular ideology. It’s not a problem of judicial
independence, but it is one of its neutrality".

"We vote to be free". Guardia Civil. Jordi Borras. All rights reserved.This affects, above all,
Spain’s high courts, whose judges are appointed by the State. Here conservative
positions predominate. For Urias, the case of Altsasu is a typical example:
"There is a conflict between a policeman and a citizen. The judge always,
always, always agrees with the policeman. It’s enough to scare you". In
his opinion, in a democratic state, the judge must protect the citizens against
the state: but in Spain, judges defend the public power against the citizens.
"Whenever there is a conflict between a citizen and a policeman, even if
it is the policeman who committed the crime, the judges’ verdict agrees with the
policeman." In one case of a group violation, the so-called
"Manada", in Pamplona in July 2016, this led to nationwide protests,
because the judges acknowledged "sexual abuse" but not rape, and left
the defendants free for the duration of the trial. What was striking was that
two of them were from the army and the police force respectively.

What the constitutionalist sees in all
this is first and foremost the "Transition", as the transition to
democracy in Spain has been called since 1978 . "In contrast to Germany,
after the dictatorship, in the courts no changes were made. After the death of
Franco we voted in a new constitution, but the judges who, until 1975, had
applied Franco's laws – that is to say directly Fascist laws – were those who
had to apply this constitution. That is why it takes so long for the rights and
values of the constitution to take root in Spanish justice". Another
problem is training. "In other countries judge trainees spend time with
real cases, they act as assistants, they face real life. In Spain, you have to
study for at least five years and you have to be able to afford to pay for a
very expensive tutor", explains Urias. The social background of the judges
is very homogeneous. This also contributes greatly to the conservative majority
trend of the Spanish judicial corps.

2017 Barcelona protests. Jordi Borras. All rights reserved.Urias sees another problem in the
legislation itself. Spanish criminal law is increasingly ideological. "It
is impossible to apply certain laws without the judge having to interpret them
politically: there is no factual basis," he warns. An example is the
"Citizens’ Security Act", for example in the case of "hate
crime": "Recently there was a trial because journalist Antonio
Maestre, on Twitter, had received a death threat from a police officer. This
policeman had to pay a 200 euro fine. At the same time, the rapper Valtonyc,
who in one of his songs threatened a businessman from Mallorca, was sentenced
to two years in prison, on the basis of the same law. Here it is clear: if a
policeman threatens a leftist person, the judge says: 'Well, it's not that
serious…' but if a leftist person threatens a right-wing entrepreneur, there
are prison sentences," Urias concludes.

A fascist as victim

Another example is the case of Luis
Carrero Blanco, Francisco Franco's appointed successor, who was killed in 1973
in an ETA attack. When student Cassandra Vera tweeted a joke about the death of
Carrero Blanco, she was given a one-year jail sentence. "The judge decided
on the basis of article 579 of the criminal code ("glorification of terrorism")
that Carrero Blanco was a victim of terrorism. This is as if someone in Germany
had killed Hermann Göring in an attack and he had later been recognized as a
victim of terrorism", the jurist says. Surely it was out of fear that the
"Cassandra case" would not have been upheld by the European Court
that the Supreme Court overturned the ruling in March this year.

In the opinion of Alonso-Cuevillas,
these cases show that Spanish justice is unpredictable at best, and this has
led to a loss of confidence in court rulings: "Justice must be predictable
to a certain degree. But in Spain for absolutely identical cases the sentences
can be completely different." Here is a problem in the same criminal code.
"The vague definitions of some kinds of crime let small cases turn into
big ones as in, for example, the case of sedition."

Parallels with the ETA case

Alonso-Cuevillas warns against a
situation in which citizens are defenceless before the State. If the Catalan
politicians who are accused of having held an independence referendum are found
guilty, there would be a legal precedent and in the future any demonstration
against an eviction in which the police cannot do their work could be
interpreted as sedition.

He also finds it very worrying that Carlos Lesmes, President
of the General Council of the Judiciary, the highest body of the judiciary,
said that the maintenance of the territorial unity of the state is one of the
most important tasks of Spanish justice. "This has been to try and justify
the violation of many fundamental rights that we are witnessing. The lack of
guarantees, the abuse of the pre-trial prison, the disproportionate application
of criminal law. This is a scheme similar to the one followed in the Basque
Country in the treatment of ETA in the past. Then the judges said that against
ETA ‘anything went’, including the violation of fundamental rights. But in our
case there has not been a single mortal victim," says the Catalan.

National Day demo. Krystyna Schreiber. All rights reserved.Joaquín Urias summarizes it very
clearly: "Spanish courts always defend the authorities against the
citizens, instead of defending the citizens. No serving judge will acknowledge
this publicly. Judges should defend the law and the people, not the power of
the state. But in Spain we do it exactly the other way around."