10th International Judicial Conference in Strasbourg from 23 to 24 May 

Judicial Response to Terrorism: National Venues

The Spanish Model

By Cándido Conde-Pumpido Tourón
Justice of the Supreme Court of Spain
(Original text in French)

1. Terrorism is unfortunately one of the most overwhelming problems in Spain and compromises the peace and stability of the democratic state in an intolerable manner.

Its clearest manifestation is ETA, an armed organisation, nationalist in the extreme, which aims to impose the independence of the Basque country through violence and terror. Alongside its totally indiscriminate attacks on the civilian population or law enforcement officers, ETA also selects victims from amongst the ranks of the judiciary, journalists, politicians or peaceful citizens, on grounds of their non-nationalist ideas, using terror to forcibly dissuade society and individual citizens from opposing its methods and objectives. Over the last 25 years, ETA’s terrorism has taken the lives of more than 800 people, including 24 children.

Terrorism does not constitute a form of war in the strictest sense, but rather a form of crime, whilst possessing specific characteristics which set it apart from ordinary crime. As political insurrections or coups d’etats, it is a threat to society: its intention is to change the existing political situation through violence. It is the terrorists who present their crimes as methods of war, whilst directing their attacks against civilian victims. It is the role of democratic governments, in their fight against terrorism, to decide whether they can accept this claim or whether they prefer to treat terrorists as perpetrators of a specific kind of crime.

In Spain, the fight against terrorism is not undertaken in a bellicose way, but as a specific chapter in the fight against crime, independent of the political problems it poses and which cannot be left to one side. This is why criminal law and the courts are essential instruments in the fight against terrorism.

2. In our country, an indictment on terrorist offences comes under the jurisdiction of the Assize Court, called the Audiencia Nacional, a specialised body of jurisdiction, based in Madrid, whose jurisdiction covers all offences committed throughout the whole of the national territory. It is an ordinary court, a civil tribunal made up of professional judges, members of the judiciary, appointed by the Judicial Service Commission in compliance with predetermined legal criteria, who are irremovable and answerable only to the law. The tribunal is independent from the executive and, hence, the government exerts no influence upon it whatsoever. In no circumstances are such prosecutions left to ordinary juries, given the risks involved.

There are fundamentally three advantages of this specific jurisdiction: 1) centralisation, the criteria can thus be unified and some distance be taken from the place of the conflict; 2) specialisation, enabling a more in-depth knowledge of the problems surrounding the prosecution of terrorist acts and improving efficacy and 3) security, which can be stepped up as protection is concentrated around one single site and a limited number of judges.

The judicial investigation of terrorist trials is carried out by the central investigative tribunals which are also specialised bodies based in Madrid with jurisdiction over the whole of Spain. They are responsible for directing and supervising the police investigation, gathering evidence in preparation for the judgment and authorising methods to counter terrorism which may restrict fundamental freedoms such as, for example, searches of places of residence and telephone tapping.

The judicial investigation also enjoys a clear advantage compared to other regimes: depositions, made with every guarantee of confidentiality before the judge and in the presence of the defence lawyers, can be used as evidence for the judgment in cases where the witnesses are unable to appear in court as they have died, are abroad or in an unknown location, as quite frequently happens in complex trials dealing with terrorism or organised crime.

The decision handed down by the tribunal of the Audencia Nacional is subject to appeal in the Supreme Court in the same conditions as any other ruling, whereas appeals on points of law come under the criminal chamber, of which I am a member, with no specialisation.

3. The procedural rules are basically the same as in ordinary prosecutions, respecting the guarantee of the right to a defence and the principle of the presumption off innocence. The rules of evidence are identical.

Until 1988, there was special legislation in place but since then (LO 4/1988 of 25 May), matters linked to terrorism are dealt with by the Penal Code and the ordinary Criminal Procedural Code. This does not imply that we are no longer according terrorism the special treatment it deserves, as the law is the most precious tool of a state based on the rule of law in facing up to the manifestations of crime; as terrorist behaviour is a very specific form of crime, it is necessary to apply the law in order to establish specific investigative means or ways in which to preserve evidence.

The respect of constitutional guarantees is not incompatible with efficacy and this is possible if the penal and procedural instruments are adapted in the best way possible to the challenges thrown up by the fight against terrorism.

The Spanish Constitution expressly provides for the possibility of restricting detention on remand, the right to the inviolability of private residences and to the confidentiality of communications in terrorist cases. In developing this prevention, the legislation permits an extension of 48 hours in addition to the 72 hours generally established, with a court order. The police forces are also authorised to listen to communications and proceed to search private residences without a court order, but within 72 hours these extraordinary measures must be confirmed or rejected by the investigating judge.

These specific measures have been envisaged for investigations which apply to other forms of organised crime as well; the use of masked agents (LO 5/1999 of 13 January) or the granting of lighter sentences to so called “grasses”, in other words to members of the organisation who collaborate with the police and judicial authorities.

4. Terrorist offences are established as such in a specific section of the 1995 Penal Code. Following a period of legal amendments and changes, it was felt that the offence of terrorism should be punished as such, under this specific heading and not simply as an aggravated form of a classic crime.

Those persons who may be sanctioned as terrorists are those who belong to, work for or collaborate with armed groups or groups or organisations whose objective is to subvert the constitutional order or severely destabilise public law and order, and also those who commit the offences of: destruction; arson; attacks against individuals, arms and munitions depots; possession or storage of explosive, inflammatory, incendiary or asphyxiating substances, devices or their components; the fabrication of, trafficking in, transport, supply or installation of such materials or devices.

In reality, the definition of terrorism is very similar to that adopted by the European Union in the Council’s Common Position of 27 December 2001, on the application of specific measures to combat terrorism.

It should be stressed that collaboration with terrorism by persons who, without becoming integrated into the organisation, provide assistance in whatever form, is punished in a specific way (Art. 576 Penal Code 95). The Spanish Supreme Court, in its ruling of 10 October 1997, which I have been asked to present, established the essence of the offence of collaboration with an armed group as making available to an organisation of which the methods are known, resources of any kind that the organisation would have more difficulty in obtaining without this assistance. Collaboration exists from the point in time that any of the organisations activities are facilitated (infrastructure, internal communication, organisation, economic resources, transport, propaganda, etc.) even if the assistance provided does not directly contribute to acts of violence. It is not membership nor ideological support which is sanctioned, but the resources made available to any violent organisation for it to pursue its objectives through engendering terror and death, whilst there exist in a state based on a constitution and the rule of law peaceful and democratic ways in which to promote any political message.

Explicit sanctions also exist for economic cooperation and money laundering, following the line of Council Regulation (EC) n° 2580/2001 of 27 December 2001, on imposing certain specific restrictive measures directed against certain persons and entities to fight against terrorism, or United Nations Security Council Resolution 1373 (2001) of 28 September, which adopted a certain number of strategies to combat terrorism, in particular, the financing of terrorism.

Sentences for terrorist offences may be up to 30 years imprisonment. The death penalty does not exist, it was abolished by the Constitution in 1978 and we do not have life imprisonment.

5. Spain currently holds the presidency of the European Union for six months. For the Spanish Presidency, the fight against terrorism represents a fundamental priority, given that Europe cannot allow the presence of intolerant groups within its territory, groups which only know to combat pluralism through terror, weapons and death.

The last half of 2001 saw important progress made, such as the European arrest warrant, a uniform definition of the offence of terrorism, the regulation on the financing of terrorism and the elaboration of a list of all organisations which work through and for terrorism. These six months, the Spanish Presidency is working to establish joint investigative teams and to draft a strategic document on the threat posed by terrorism to the European Union. The objective of these activities is to encourage police and judicial cooperation between Member States. Stepping up the material and human resources of Europol and the consolidation of the information services are priorities.

It is clear that, from the judicial point of view, we must permanently seek to modify criminal and procedural provisions on terrorism and update them to deal with the new political and social situations which have emerged over recent years. Terrorist behaviour is evolving and seeking to elude the application of these rules, benefiting from all flaws or complications in interpretation, so laws and court practice must also adapt, in order to provide an effective response to these new demands emanating form legal order, equipped with precise and appropriate instruments.

These legal instruments must, all the same, be bound by the limits which characterise a democratic society and constitute our great moral superiority over terrorism: the respect of Human Rights, guarantees as to the right to a defence and the principles of a fair, legal trial. We must not succumb to the temptation to take short cuts, that is to use methods which recognise neither law nor states based on the rule of law. If terrorists seek to destroy our system of freedoms, we cannot accept that they indirectly achieve their goal by flouting our system of guarantees.

In the fight against terrorism, the courts are bound to deploy a maximum of energy and efficacy in investigating and prosecuting these criminal activities. And to do so by always using the law and justice as weapons, guaranteeing the respect of Human Rights which characterise our system of freedoms.