Chief Justice Alfonso Guevarra continued the hearings, dividing the time between prosecution and defence. On one side, the Examining Magistrate Ana Noé, who leads the prosecution, followed by three third-party intervenors for the prosecution, including an association for the victims of terrorism. On the other, the three lawyers for the defence.
As on the previous day, a dozen anonymous witnesses were introduced by the prosecution. For the most part, these were again police officers, who generally contented themselves with ratifying the contents of written statements made at the time of the alleged facts or over the last ten years.
Next, both prosecution and defence made their arguments. Examining magistrate Ana Noé then summarized the list of evidence: the statements by Ana Belén Egües Garruchaga and Aitor García Aliaga; and fingerprints found in an apartment in the city of Salamanca in which weapons were found in November 2001.
The association for the victims of terrorism then spoke about the danger posed by « terrorists ».
The defence raised the fact that the searches carried out by the police in the Salamanca apartment were illegal, because they were not authorized by a warrant signed by an Audiencia Nacional judge.
The defence lawyers also pointed out that none of the accused face clear allegations linking them to a particular event. Rather, the allegations attempt to link the accused to a general « criminality » or to associate them with « terrorist activities », without proving a direct link between any one of the accused and specific crimes that have been committed.
The defence also questioned the credibility of the fingerprint evidence, noting that the examples submitted as evidence were found on a tourist guide and a train ticket; objects that are mobile and could easily have been transported from one place to another or passed from hand to hand. The presence of fingerprints on these objects in the apartment, they argued, in no way proves a link between the people who had handled them and terrorist operations. In any case, Ivan openly admitted having visited this apartment in October 1999; this could also explain why his fingerprints were found there in November 2001.
The most striking aspect of the trial was the use of information derived from a statement by Ana Belen Egües Garruchaga obtained under torture. This evidence would have been inadmissible in a criminal court in Canada and is condemned by the UN Convention against Torture (Article 15).
After the closing arguments, the Judge declared the hearings over and the public was pushed outside, giving a last wave to the accused, who disappeared behind a closed door. The verdict is expected during the next month, but there are no guarantees.
For days before the trial even began, the conviction of « four ETA terrorists » was announced in the headlines. The stories jumbled together accounts of attacks that had nothing whatsoever to do with allegations against the accused, and in some cases new allegations were invented wholesale.
Amidst the utter confusion in the media, important questions about the weakness of the (almost non-existent) material evidence against the accused were lost. In addition, the only journalists actually present in the courtroom on the second day of the trial left the room during closing arguments by the defence, after having taken careful note of all of the prosecution's points.
Moreover, although the trial is considered to be public, this is somewhat illusionary. Spaces for the public are limited and witnesses are inaudible, so that family and members of the public who are present hear, at most, the questions posed by the prosecution and defense.
The delegation visited the Canadian Embassy in Madrid the day after the trial to make their report. They met with Nathalie Sauvé, a political attaché in the Canadian Mission to Spain. They informed her that Spain had used a statement that a Canadian tribunal had acknowledged was probably obtained under torture as evidence in the trial. This statement was repudiated in court by the witness, who stated that she had signed the statement in incommunicado detention, where she had been tortured and subject to ill treatment.
Ms. Sauvé noted that the Embassy had been receiving calls from people who were concerned. She also noted that former Liberal Party leader Stéphane Dion had become involved. Ms. Sauvé appeared to be alarmed about the prospect of media attention to the affair. A response from the Ministry of Foreign Affairs is expected this week.
Please call or write the Canadian Ambassador in Spain, Graham Shantz, and ask him to intervene in this case.
Please mention that:
Freedom for Ivan Committee
On 18 October 2008, Ivan Apaolaza Sancho, a Basque activist who sought refuge in Canada in 2001, was deported from Canada, on a charter flight, manacled hand and foot, and handed over to Spanish authorities. His deportation marked a bitter ending to a 15-month campaign, during which he was imprisoned in Rivière-des-Prairies prison in Montreal. Ivan was deported following an Immigration and Refugee Board (IRB) decision that he was inadmissible on “security” grounds. This decision, which the Federal Court refused to review, was made on the basis of bald allegations by the Spanish government, which, in turn, were based on information that the IRB itself recognized was probably obtained under torture. Ivan's trial is now taking place in Madrid, where he is accused of having participated in planning attacks which never took place. He faces at least thirty years in prison, and possibly fifty-five years.
A delegation organized by the Freedom for Ivan Committee is present at the trial, with a mandate to:
In Spain, the doors of the Audiencia Nacional open for some, while fifty others wait outside, behind a police barricade. The Audiencia Nacional is a special court for terrorism in Spain, successor of the fascist Tribunal d'Ordre Públic set up by Franco.
Inside, the room is only half-full: some members of the families of Gorka Palacios, Jon Olarra Guridi, Oier Goitia and Ivan Apaolaza Sancho trickle in, making their way into the room, while many others, though they have travelled for more than five hours, must remain outside on the street as their loved ones face life sentences. The public room is separated from the hearing by a wall of plexiglass; on one side, sit the accused in their own box, separated from both public and court.
Chief Justice Alfonso Guevarra presides, hearing prosecution and defence in turn. The hearing begins with the cross-examination of the four accused. Two have decided not to respond to any questions at all, refusing to give the court proceedings any legitimacy. The other two refuse to respond to the prosecution and only answer questions put by the defence. This is common practice among political prisoners; a way of challenging process at the Audiencia Nacional.
The two first witnesses to testify are Ana Belén Egües Garruchaga and Aitor García Aliaga, convicted in October 2005 to 1042 years in prison. The charges against Gorka Palacios, Jon Olarra Guridi, Oier Goitia and Ivan Apaolaza Sancho are entirely based on statements signed by these two witnesses when they were held in incommunicado detention.
Spanish law allows police to detain suspects incommunicado for up to 13 days, without any contact with the outside world, whether family, lawyers or doctors. Ana Belén Egües and Aitor García Aliaga both repudiate the content of these statements. As they have stated many times: the statements were made when they were in incommunicado detention, after they had been subjected to torture and ill-treatment. Neither Ana Belén Egües nor Aitor García Aliaga have ever affirmed the contents of the statements before a judge, and both filed complaints against the abuse after their release from incommunicado detention.
In a 2008 report, UN Special Rapporteur Martin Scheinin noted that complaints of torture are made "continuously" by prisoners who have been held incommunicado by Spanish police, expressing his concern that the regime of incommunicado detention creates the conditions for torture. He also stated that reports of torture were regularly dismissed by Spanish judges without serious consideratoin and investigations into allegations of torture were unduly prolonged.1
The use of information obtained under torture is deeply disturbing. Even in security certificate cases, notorious in Canada for their low standards of evidence, courts are supposed to exclude information that seems to have been obtained as a result of torture.
At this point in the hearing, a curtain was drawn, preventing the accused and the public from seeing about a dozen witnesses who testified anonymously. For the most part, the witnesses were police officers who testified that they had no precise memory of the case, but nevertheless affirmed the truth of their written statements, which had been provided as evidence. Judge Guevara finally turned on one of the police officers, saying that he had heard that the police officers had been ordered by their superiors to simply ratify their statements and say nothing more. The use of anonymous witnesses is very serious; it strengthens the conviction that legal standards used by the Audiencia Nacional do not meet international norms.
Witnesses testified one after the other, their credibility undermined by their anonymity. Most of the exchanges in the courtroom took place outside the range of the microphones which were supposed to carry the sound into the public area. This made it impossible for the families to follow everything that unfolded.
The first day of hearings exposed the exceptional treatment of Basque political prisoners: tried in a special court, which relies on legal standards far from international norms; use of information obtained under torture; contemptuous treatment of family members; and excessive sentences. This system of repression is part of the criminalization of all Basque movements and Basque civil society as a whole.
Today, please call or write the Canadian Ambassador in Spain, Graham Shantz, and ask him to intervene immediately in this case.
Please mention that:
1See also HRW, “Use of Incommunicado Detention”. Similarly, two recent rulings by the European Court of Human Rights found that the Spanish state had violated article 3 of the European Convention on Human Rights by failing to properly investigate torture complaints (San Argimiro Isasa c. Espagne (2507/07, 28 September 2010) and Beristain Ukar c. Espagne (40351/05, 8 March 2011))