In this section we will analyze the legal reasons why the Central Examining Court No. 3 of the National Court of Spain has charged eleven young people of Alsasua for the crimes of injuries of Art. 147 et seq., of an attack of art. 550, incitement of hatred of Art 510 and terrorism of art. 573, all of them of the Penal Code.

The accusation of terrorism offense is what has caused this case to be heard in the National Court of Spain and not with the natural judge in the Provincial Court of Pamplona. It also forms the basis for the the precautionary measure of unconditional imprisonment for seven young men.

  

I. The Transfer of instruction to the National Court of Spain

The sequence of events fuels the hypothesis of the existence of an extrajudicial impulse to transfer the instruction to the National Court of Spain and establish an exemplifying criminal typification. Specifically, the police report, the extension proceedings, or first report of the Civil Guards do not state that there was an organized lynching or beating of the two civil guards, nor acknowledges a crime of terrorism. The first report from a Civil Guard, sent more than a week after the events, endorses the police report, which was already in the hands of Judge Mari Paz Benito, who examined the case in Pamplona for the crimes of attack on an enforcement officer and injuries caused. In this report it is thought that there are indications of a possible hate crime (Navarre News, 10-25-2016: “Police reports do not confirm organized lynching in Alsasua”).

In a climate of overwhelming attention by the media, and following the complaint filed by the COVITE Association of the National Court of Spain on 19 October, by 25 October, the magistrate of the Central Examining Court no. 3 of the National Court of Spain accepts the competence of the facts investigated. Days before, on 22 October, members of the association COVITE made an appearance at the beginning of a large demonstration in Alsasua to denounce the police and media assembly, generating a situation of tension that does not result in any incidents, but some media used it to fuel the oversized and distorted images of the events and of a town2. The drift followed by this cause has been described by renowned jurists as “judicial overactivity” and “exorbitant and out of social reality“.

The Central Courts of the National Court of Spain, in previous proceedings, tie the incident that happened on 14 October to the initiatives to denounce OSPA of Altsasua, and in addition it ties it to the demands of demilitarization and another policing model with demands from both political organizations and the ETA organization.

The first of these ties, the one made with the OSPA association, should be classified as speculative and circumstantial, since it is based on the alleged membership of OSPA of the alleged participants in the incident that are judicially instructed and at a press conference on 17 October where members of the community denounce the misrepresentation of the facts by the media and the behavior of the Civil Guards with large police deployments, and call for the demilitarization of the municipality. It should be noted that the initiatives carried out by the OSPA association during its five years of existence are around freedom of expression, have been done by peaceful means and have had the corresponding legal authorizations by the adequate authorities.

In relation to the second tie, with demands from political organizations and the ETA organization, it should be noted that there is no link between the OSPA movement and ETA. The ties established in the case-file correspond only to a claim, which is otherwise legitimate and is shared by other legal political organizations, varied ideology, such as the PNV party or the EH Bildu party. Even the Parliament of the Autonomous Basque Community has passed resolutions requesting the withdrawal of the State Security Forces, for example in June 2013.

  

II. The classification as a crime of terrorism.

In the imputation of the investigated for a crime of terrorism, it is not clear if the crime of terrorism conforms to the aggression that occurred, the context in which it is framed, or both at the same time, but any of the options are debatable, just as the lawyers Jaime Montero Román argues in the opinion article published on 19 November in the newspaper called Público6.

“The crime of terrorism requires the perpetration of a serious crime (in legal terms, not moral), on the one hand, and that this crime is also, as far as the present case concerns and despite the lack of precision in this regard of the arrest warrant, to “compel the public authorities to perform an act or refrain from doing so” (referring to the transfer of Civil Guards outside of Navarre) or to “provoke a state of terror in the population or part of it” (in particular, the Civil Guards assigned in the locality, and their families).”

“In the events reported by the prison records, the first of the premises fails, since neither the crime of attack nor of injury are serious crimes (punished with a maximum penalty that exceeds five years of prison). As for the crime of incitement of hatred of art. 510 C.P., not only is this not serious, it is not included in the catalog of crimes that would allow its perpetration to be considered as terrorism.”

“Although the above reflection allows for the full dismissal of the concurrence of the classification of a crime of terrorism, it should also be noted, if it is understood that it is the aggression against the agents that motivates the attempt to apply this crime, which seems too much to say that with said attack the investigated sought to coerce public authorities, or provoke a state of terror in the population or a portion of it, and in fact the Examiner does not say so expressly.”

“If the context is what is claimed to be “terrorism”, what would fail in this case is the lack of definition of a criminal activity, because graffiti, demonstrations, banners or the use of social networks, just as the report points out, in order to achieve the adoption of a political decision to withdraw the State Security Forces from the territory, without any other addition, seems to be a lawful activity, even though it may be questioned in political terms.”

“In this sense, the report states that the attacks seek to “provoke insecurity and fear” among the Civil Guards, and defines the movement that carried out this strategy as “violent groups”, but at the margin of the alleged attack that is being investigated, no violent act is specified, nor any act of any other nature that could be considered as illegal and which has been carried out by the investigated parties, nor have any groups to which the accused have been said to belong so as to serve this illegitimate claim.”

To elaborate on this issue, it can be noted that international bodies such as the United Nations have repeatedly challenged, and questioned clearly, the successive definitions of the concept of terrorism used in the Spanish judicial system. For example, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms in the fight against terrorism, Martin Sheinin warned of the risk that «little by little the notion of terrorism is extended to acts that do not constitute and do not keep enough relation with acts of serious violence against the general population». He added that “when you begin to fall down that slope there is a risk of violation of many rights” (Europa Press, 14-05-2008). On the other hand, in 2008 the United Nations Human Rights Committee expressed “its concern about the potentially excessive uses of the definition of terrorism in internal law, particularly the ones that are mentioned in articles 572 to 580 of the Spanish penal code, which could allow for the violation of various rights that are mentioned in the Pact” and which mentions the Spanish state as one which “defines terrorism in a restrictive way and makes its measures against terrorism be clearly evident with the Pact” (CCPR/C/ESP/CO/5/ October 27th 2008).

Recently, with the objective of singularly combating jihadist terrorism the definition of the crime of terrorism has been modified due to the appropriation of the Organic Law 2/2015, “from 30 March, when the Organic Law 10/1995 was modified, from 23 November, from the Penal code, in relation to terrorism crimes”. This new definition has applied to the facts that concern us, and it has been criticized by five rapporteurs from the UN. The independent experts Maina Kiai, rapporteur regarding the rights of freedom and peaceful meeting and association; David Kaye, rapporteur of the promotion and protection of the right of opinion and expression; Ben Emmerson, rapporteur of the promotion and protection of human rights and fundamental freedoms in the fight against terrorism; François Crépeau, special rapporteur of the human rights of immigrants; and Michael Forst, special rapporteur of the situation of human rights defenders, consider that “the text law project includes wide or ambiguous definitions which open the field to a disproportionate or discretionary application of the law on the part of the authorities”, and which in the way in which it was written, the anti-terrorism law could criminalize acts which do not constitute terrorism and could end up being among the disproportionate restrictions of the liberty of expression.”

  

III. The classification as a crime of incitement of hatred

In relation to the crime of incitement of hatred, included in article 510 of the Penal Code, following the argument of the lawyer Jaime Montero, it is not clear if the imputation “is for the concrete aggression, or for the social context of hostility that is related and attributed to the collective ‘OSPA Movement’, but in both cases is an improper imputation” as is explained below.

“The attack via insults and attacks on the Civil Guard because of his status as an law enforcement officer constitutes the crime of assault, so that it can not constitute both a crime of incitement of hatred because it would punish a single behavior, something prohibited under our law and known as the principle of ‘non bis in idem’.”

“In addition, there is a serious problem of authenticity if it is intended to apply to art. 510 C.P. whether as an aggression, whether in the “context” in which it is framed, derived from the fact that incitement of hatred must occur due to the attachment of the group or the person who is part of it, the victims of the crime, to an ideology, religion, belief, family status, sex, sexual orientation or identity, gender, disease or disability. This list does not include aggression by profession, or belonging to the civil service or similar, and can not be made an extensive interpretation, prohibited in Criminal Law.”

“I want to say with the previous that, even when it is affirmed that the violence has an ideological origin, what the precept demands is that the aggression is produced by the ideological ascription of the person or group that is the victim. In other words, if a person is assaulted by his or her sexual orientation, we will also be faced with an aggression of ideological origin (if homophobia can be called an ideology), but the application of art. 510 C.P. will come from the sexual orientation of the victim, not from the ideological attachment of the aggressor.”

  

IV. The precautionary measure of unconditional imprisonment

The precautionary measure of preventative detention is exceptional, which must be applied to ensure the presence of the person charged in the process when there is a risk of flight and to avoid the disappearance, alteration or destruction of evidence, among other reasons.

In the specific case in question, the detentions, carried out on 14 November, were carried out by the Civil Guard, without a judicial order and without record of the homes or other real estate. After a month has elapsed since the facts were investigated, it is logical to assume that there is no risk of concealment, alteration or destruction of evidence.

On the other hand, with regards to the risk of flight, the Provincial Court of Pamplona and the National Court of Spain have on record the willingness of the defendants to voluntarily present themselves before the court. Specifically Jokin Unamuno and Artiz Urdangarin, who by a period of one month presented themselves before the Provincial Court no. 3 of Pamplona. As well as Adur Ramirez de Alda who has presented himself three times, twice of which occurred before the National Court of Spain. The rest voluntarily presented themselves before the Provincial Court of Navarre on 26 October.

It draws to attention the argument used by the Magistrate of the National Court of Spain to observe the risk of flight, since it was based on “the clear support of their families and the group to which they belong to facilitate their escape and stay away from the actions of Spanish courts” (court order from 14 November). In Jurisprudence it has been common to argue in the opposite sense, since the family roots are usually a reason to avoid jail which reduces the possibility of flight.

Finally, in relation to the risk of recurrence of crime, it is argued that there exists an alleged membership to the OSPA, a local group, to which no violent act has been attributed.

  

V. A comparison to the principle of proportionality

The principle of proportionality in Criminal Law is substantial to such an extent that it is the unanimous position of the jurists that the violation of the principle of proportionality puts at risk the principle of legality. Prominent jurists have revealed the breach of the principle of proportionality in this case, such as Martin Pallin, ex-Supreme Court judge or Baltasar Garzon, ex National Court judge.

The breakdown of this principle is visible if this case of assault on off duty law enforcement, with minor injuries according to the medical parties, in mitigating circumstances, in which they are sought for prosecution for terrorism, incitement of hatred, a criminal attack on the authorities causing injury, with the possibility of facing sentences of up to 10 and 15 years in prison, which when compared with similar incidents in the past, shows that said incidents have received different treatments and conclusions. Below are some cases that make this comparison, whose purpose is exclusively informative.