Paddy Woodworth: Spanish judiciary on trial over ETA prisoners

There is little doubt that the electoral earthquake that has shaken Spain's two-party system was triggered by a widespread desire for democratic renewal. One area that cries out for reform is the distortion of judicial decisions by political pressure, especially in cases linked to the virtually defunct Basque terrorist group Eta.

The continued imprisonment of Arnaldo Otegi, the radical leader who persuaded his former comrades in Eta to abandon terrorism, is a stain on Spain's human rights and democratic credentials. So is the policy of "dispersion" that keeps Eta prisoners far from their homeland.

The dispersion strategy was once justified as a security measure. This hardly applies today, five years after Eta’s permanent ceasefire. It has always been condemned by human rights advocates as oppressive to prisoners and punitive to their loved ones, who travel 1,000km and more on prison visits. Yes, many of these prisoners have been convicted for cruel acts of violence. But it is one of the hallmarks of law-based democracies that punishments are not vindictive, and that families are not held responsible for crimes carried out by relatives.

You might be wondering, however, why any Spanish government should concern itself with these matters, since the separation of powers between executive, legislature and judiciary is a core principle of democracy. But the policy of dispersal is not a judicial matter, it is a penal policy a government may legitimately reverse.

Blatant disparity

There has been a blatant disparity, too, in the treatment of Eta militants and others guilty of serious “political” crimes. Members of the notorious GAL death squads, established by government ministers in the 1980s to terrorise Eta and its supporters, were released after serving derisory fractions of their sentences.

Meanwhile, Eta prisoners repeatedly had their sentences retrospectively prolonged, through the outrageously flawed “Parot doctrine” (named after the first prisoner it was applied to). The highest Spanish courts endorsed this doctrine, despite warnings from distinguished jurists that it violated the Spanish constitution.

The European Court of Human Rights (ECHR) struck it down in 2013, by the largest majority ever recorded in its grand chamber, severely embarrassing the Spanish authorities. This reflects the sad fact that the separation of powers is often more nominal than real when the Spanish state deals with Eta. This is palpable in the extraordinary statements made by successive senior government ministers whenever particularly notorious Eta prisoners were due for release.

They spoke of the need for “judicial engineering” to keep these prisoners in jail. When such calls are followed by unsound court decisions in line with ministerial demands, it is clear something has gone very awry.

Arnaldo Otegi's sentence, itself now under appeal to the ECHR, also raises well-founded suspicion of successful political pressure on a supine judiciary. A full review of his case would demonstrate the new government really is prepared to shine a light into the murkier areas of Spanish public life. Otegi emerged as an innovating leader of Batasuna, the political wing of Eta, in the late 1990s. He quickly espoused an unarmed strategy, and became a key figure in organising Eta ceasefires in 1998-9 and 2006-7.

Over the next few years, Otegi quietly led his movement into what Teresa Whitfield, the best historian of this period of Eta's history, calls "virtual peacemaking". He worked doggedly against entrenched opposition from Eta militarists and fundamentalists, and in 2011 he achieved something hitherto unthinkable: Eta's first total and permanent ceasefire, agreed without a single concession sought from or granted by the Spanish state.

It was a peace process with no partner. Not only was there no political deal whatsoever, but some 600 prisoners were offered no prospect of early release, nor even an end to dispersion.

Potent movement

Batasuna had been banned in 2003, so Otegi and his colleagues had fostered new pro-independence parties committed to exclusively peaceful means. One party, Bildu, finally won the right to contest elections. It exceeded all precedents by taking 25 per cent of the Basque vote. A non-violent independence movement was proving, as Otegi had predicted, much more potent than a violent one.

But he was already in jail, convicted as a "leader of Eta", on the topsy-turvy grounds he had organised another new grouping, Bateragune, to persuade the group's military leaders to hang up its guns. As he put it himself, he was trying to change an armed conflict into a chess game, but Madrid wanted boxing, not chess. Whitfield suggests some elements in the Spanish establishment actually prefer a low-level Eta terrorist campaign to a peaceful and popular mass campaign for Basque sovereignty.

That is a very disturbing thesis. The unity of the Spanish state, just like Basque independence, should only be defended by peaceful, legal and democratic means.

The new Spanish government should turn over a new leaf by recognising the validity of Otegi’s ECHR appeal and ending the dispersion of Eta’s prisoners.

Paddy Woodworth is the author of Dirty War, Clean Hands: ETA, the GAL and Spanish Democracy