Despite the favorable sentence from Strasbourg, Xabier Atristain gets 17 years in prison. The Supreme Court has rejected the request of the ETA member to review the conviction for belonging to a terrorist organization and possession of weapons and explosives in light of the sentence of the European Court of Human Rights (ECHR) that proved him right. Strasbourg considered that his right to a trial with all guarantees had been violated, since the judicial decision that prevented him from appointing a lawyer of his choice during a police interrogation had not been motivated.
The Supreme Court considers that, even dispensing with the statements affected by this violation, there is other evidence by which the same sentence could have been reached, for which reason the review of the final sentence imposed in 2013 by the National Court is not appropriate.
Thus, it coincides with the position of the Prosecutor’s Office, which is also opposed to accepting the filing of an appeal for review that could lead to the annulment of the sentence.
After the favorable sentence in Strasbourg, Atristain asked the National High Court for his release. The Third Section, which in its day handed down the sentence, agreed to provisional release in an order issued last February. The magistrates explained that the sentence was being suspended pending the decision of the Supreme Court whether or not to authorize the filing of the appeal for review. After the negative response, Atristain is expected to return to prison shortly.
The already known as the Atristain doctrine, which questions the statements in the incommunicado phase if this measure has not been motivated for the specific case, has already led to the acquittal of two ETA members. The decision adopted this Wednesday by the Supreme reflects that the Atristain doctrine does not imply the acquittal of whoever has confessed while incommunicado. The conviction or acquittal will depend on the assessment of the rest of the evidence against him.
The Supreme Court magistrates explain that an appeal for review is extraordinary and that the scope of the violation of the right declared by the ECHR must be verified in each case. The court presided over by Andrés Martínez Arrieta analyzes the European ruling and sees it as especially relevant that it says that the sentence “was partially based on the evidence obtained as a result of the statements that he gave at the police station while he was incommunicado.”
“In particular, those statements were essential to the discovery of the explosive material. As a result of his statements, the police found data and solid evidence that the applicant had committed the crimes in question. The conviction was based mainly on the explosives and the material found in the possession of the plaintiff, but also other evidence such as the incriminating statements of the co-defendants, the statements of the witnesses or the silence of the plaintiff to the questions of the prosecution”, added Strasbourg.
Thus, the Chamber concludes that, even disregarding the questioned police statement, the conviction about the existence of the explosives and weapons is based “on other sources of evidence other than the confession”, according to the ECHR itself. The Supreme Court reaches the same conclusion after reading the sentences issued in this case, as well as verifying the summary proceedings and the minutes of the oral trial.
The Chamber collects in its order that the ECHR denied in this case the existence of ill-treatment and that the declaration of the ETA member, although without the presence of a trusted lawyer, “was free and voluntary, without coercion or pressure of any kind”.
Finally, it points out that the ECHR refers that regarding the reason why “the court-appointed attorney was not allowed to communicate with his client, the Court heard the court-appointed attorney as a witness in the trial” and that it has not stated “any reason to their opposition.”
In its order, the court recalls that in previous cases it has been “decidedly prone to the execution, via review of the sentence, of the ECHR rulings, whose jurisprudence it has observed and followed.”
It states that the ECHR ruling in the Atristain case “does not question the legislation in force in Spain, nor the incommunicado regime of a person detained in cases of terrorist crime, as long as it is done under the supervision of a judge, being established doctrine of the Court that it may be justified, in this context, that a court-appointed lawyer assist the detainee, and that some of the rights of the incommunicado detainee be restricted, if the reasons are justified in the specific case.
The violation observed by the ECHR, the Chamber specifies, is that “there was no individualized resolution by the investigating judge justifying why the detainee was not allowed access to a lawyer of his choice, although the concurrence had been declared in the detained for signs of belonging to a terrorist group and the possession of explosives that led to his being held incommunicado by the Central Investigating Judge”.
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