ELDH Statement – Fact Finding Mission concerning detained Basque Lawyers in Spain

We have come to Madrid to investigate the circumstances of the arrest and the detention of Basque lawyers who are well known as defence lawyers for Basque activists – or as alleged terrorists, as the prosecutor will say.

We are wondering why 12 lawyers from Basque country were  arrested in January, why their offices were  searched and their professional secrets were  violated, although they  were  released 2 days later. We are wondering why other lawyers have been kept in pre-trial detention for more than 15 months, and at least one of them has been kept in complete isolation, without indictment.

As part of the mission and for reasons of gathering evidence, lawyers from different European countries wanted to meet the lawyers who have been  kept in pre-trial detention for 15 months already. At least in one case such  total isolation could be considered as torture.

Unfortunately our worst expectations were  confirmed when we arrived yesterday at the prison to talk to our clients, and  the prison administration refused to let us in and to talk to them.

So what is the prison administration, and what is the Audencia Nacional afraid of, that they refuse to respect the principle of law which provides that a detained person can choose a lawyer and ask her or him to visit her or him. Have the Spanish authorities been surprised that lawyers from different European countries came to visit their Basque clients in a Spanish prison ?

No, they cannot have been surprised, because we announced our arrival in advance and demanded  permission to visit our clients in prison. But already, the day  before  our visit we had reason to believe that someone was inventing obstacles to prevent this visit. Finally the Madrid Bar Association gave the permission. But when we arrived at the prison yesterday, the prison administration told us, that this permission was not enough. They asked for another permission by the Audencia Nacional. Does it really need such a second permission ? We doubt it. But if this is really the case, why didn’t the Audencia Nacional take the necessary decision? Was it only to give the prison administration a pretext to prevent us from seeing our clients.  ?

Who has the right to insult lawyers who came from Germany, from Italy, from Holland to visit their clients? Letting us wait in the entrance hall of the prison for one hour without taking the necessary decision to which they are obliged by Spanish and international law. Not only is this an insult for the concerned lawyers, but also for the whole judicial community, and for the rule of law. This is what the infamous fascist legal and political theorist Carl Schmitt called the rule of the exception.

Let me remind you that exactly 70 years ago the German fascist regime surrendered, conquered by the allied forces. And by this victory most part of Europe were liberated. The 8th and 9th May are therefore commemorated in many European Countries. And we know very well why this is not the case in Spain.

As European lawyers who are guided by anti-fascist conviction and by the principles of human rights we demand

  1. The immediate release of all Basque lawyers who are detained because they are identified with their clients’ cases.
  2. The full implementation of all European and International law standards ratified by Spain.
  3. We demand respect for  the UN Basic Principles on the Role of Lawyers, which provides that lawyers are able to perform their professional functions without intimidation, hindrance, harassment or improper interference and that they do not suffer prosecution or other sanctions.
  4. The full implementation of the conclusions and recommendations  in the reports of the European Committee for the Prevention of Torture (CPT) and the UN Special Rapporteur concerning Spain.
  5. To stop the disproportionate use of pre-trial detention and pre-trial detention without full consideration of whether the detention is proportionate.
  6. An independent commission to investigate the violation of the rights of lawyers in Spain, in particular of those who have been or are  still kept in detention.


Statement also given on behalf of the Dutch Lawyer Hans Gaasbeek who represents the Foundation Lawyers for Lawyers and the Dutch League for Human Rights