ELDH Statement against unfair trial on Basque lawyers

The European Association of Lawyers for Democracy and Human Rights (ELDH), with members in 21 European countries, declares its grave concern at many aspects of the ongoing trial at the Criminal Chamber of the Audiencia  Nacional ( Sala de lo Penal de la Audiencia Nacional) in Madrid of nine Basque defendants. The accused are the defence lawyers Jon Enparantza, Arantza Zulueta, and Iker Sarriegi; and Naia Zuriarrain, Julen Zelarain, Saioa Agirre, Juan Maria Jauregi  and Nerea Redondo of  the movement in support of Basque prisoners.

The defendants are accused of membership of the “ETA legal group”, and the prosecution is seeking terms of imprionment of between 7 and 12 years, and 14 years of disqualification for the defence lawyers.

ELDH notes that as with our colleagues in Turkey, defence lawyers are being prosecuted and persecuted in effect for representing their clients

The case commenced on Monday 12 July 2021, and continued unil 15 July 2021, when its was adjourned to 27 July 2021.

The case started on 14 April 2010 with an operation conducted by the Guardia Civil in the Basque Country. 10 people were arrested, including three lawyers. Searches were carried out in two lawyers’ offices, in Hernani and Bilbao, and the detainees were held incommunicado for 5 days in police custody.

In the proceedings it was found that the telephones of the accused lawyers, now accused, were tapped by the National Intelligence Centre (CNI), which had gathered both voice and SMS messages, at least since 2008, so that the secret services listened to the lawyers and could thus furtively learn all their defence strategies.

Following a petition by the Defence, the declassification of the CNI’s communications tapping files was requested, but after more than a year, the Spanish Government has only declassified two Supreme Court orders authorising the tapping, orders that are redacted to hide data, places and names of people.

Telephone tapping of this kind does not meet the guarantees and requirements established by the Spanish Law of Criminal Procedure. Thus the evidence obtained in this way is null and void and vitiate the entire judicial procedure from the start.

Furthermore, there is a Guardia Civil prosecution report that identifies people who were arrested based on the alleged identification of Mr. David Pla in a meeting in France with an alleged member of ETA’s leadership on 17 May 2008. However, there is verified evidence that on that day Mr Pla was in another place visiting his partner in prison. Mr. Pla was released.

An operational and organisational document of the Guardia Civil was foundafter one of the searches, which provided for the organisation and means of carrying out the police operation and which was submitted to the proceedings by the defence. In it, interrogation teams of up to 5 agents were to be assigned to the detainees, the treatment to be given to the detainees is indicated (treatment “exquisite at all times” for the lawyers, and treatment aimed at “obtaining a statement that ratifies the judicial charges” for some of the detainees), and the participation of the CNI in the operation is specified.

The use of torture is shown by the forensic medical reports, as defined by the Istanbul Protocols and as included in the Basque Government Report directed by Paco Etxeberria on torture. It was the current Minister of the Interior, Mr Grande Marlasca, who directed the police operation, and the first thing he did was to annul the Order issued by the Central Court of Instruction No. 5, then in force,  which had adopted measures to prevent ill-treatment and which had ordered the recording of the detainees while they remained in police custody and to allow examination by trusted doctors.

We recall that Mr. Grande Marlasca has been criticised by the European Court of Human Rights on several occasions for not sufficiently investigating allegations of torture.

The searches carried out in the lawyers’ offices in Hernani and Bilbao as noted above were full of irregularities, as can be seen from the records of entry and search drawn up for this purpose. Professional secrecy was violated in a blatant and obvious way, for example confidential correspondence between lawyers and clients in prison, judicial files of lawyers with defence strategies, etc. were taken. In the case of the Bilbao office, the lawyer sent by the Bizkaia Bar Association lodged a formal protest against the violation of fundamental rights and professional secrecy, as well as the violation of the principle of non bis in idem.

4 of the 9 people who are going to be tried have already been previously convicted of belonging to ETA, and for having been involved in support or assistance activities in relation to Basque political prisoners. Three of them, moreover, have been recently convicted, in the trial against Herrira held in September 2019.  And all of them have served their sentences in full, and now they are being tried again for the same thing, using as evidence against them the same documents and reports that were used to convict them previously.

ELDH takes the view that Spain systematically violates the Basic Principles on the Role of Lawyers (known as the Havana Principles). Under these principles, “Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.” In addition, “Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.” But it is the Spanish government that is threatening the security of these lawyers for discharging their functions.  The principles further provide, “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.” Governments are obliged to remove obstacles to the professional activity of lawyers and they should prevent any kind of harassment or unlawful interference against lawyers.

The  ELDH has grave concern as to the ongoing irregularities on the current legal proceedings, amongst other human rights violations, breaching the basic right to a defence, the right to a fair trial, effective judicial protection, and the violation of the non bis in idem.

The ELDH calls on the Spanish government to stop these proceedings and to release the accused. The lawyers concerned should be permitted to return to their important work of criminal defence.