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Bilbao Conference, 24 and 25
of October 2008
“The Right of Defence vs. Special Courts
and Laws”
SEE
PROGRAMA
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Conclusions:
Conclusions of the conference held in the Lawyers Bar
of Bizkaia on the 24th and 25th October, 2008.
1. Our first concern refers to the extensive use of exceptionality all
over the world. We understand exceptionality as a reduction of historical
guarantees and rights for the sake of priorities including security, public order
or political requirements
However, the plurality of circumstances, political contexts, the diversity of values and legal traditions accounts for the difficulty of establishing general standards of these practices.
We conclude that exceptionality is a cancer that is extending on a global level as a metastasis to a growing number of sectors and with a continuous retreat of guarantees and liberties
2. We observe the restriction or even absolute abolition of rights relating
mainly to the physical integrity of the person at the time of detention, during
police action or imprisonment etc and other fundamental political rights like
the right of expression, opinion and the right to demonstrate.
3. Likewise, we witness the disappearance of guarantees and basic fundaments
of rights to the benefit of exceptionality and emergency like the presumption
of innocence, the principle of legality, proportionality, legal security, equality
and non discrimination in front of the law, the right to the natural judge determined
by the law etc.
4. A special mention is needed concerning the restriction of rights of defence lawyers, the restriction of the right to a defence and the equality of arms between the parts. The proliferation of practices, like acting under a secret summary, the concealment of procedures and pieces of evidence and even the criminalization of lawyers for ideological affinity concern us.
5. This situation can be qualified as generalized on a global level, and we have analyzed it concretely in the context of the Spanish state in the Basque case. The use of exception defined as the suspension of rights and liberties has constitutional status and is being applied to all those that ambiguously are considered "enemies of the state".
A new exacerbated interpretation of terrorism has been produced whose limits are broadening progressively. Accordingly we perceive the activity of the administration of justice invasive of legislative and executive powers.
6. We observe a paradigm of the politicization of Justice and the growing influence
of law on politics in the performance of the Audiencia Nacional.
The Audiencia Nacional with its legal actions can be qualified as creating law
and generating the expansion of penal types with the definition as criminal
of public, legal and transparent behaviours. To share ideas and political goals
has turned into a new criminal type.
Based on the idea of environment or ideological affinity, the concept of terrorism without weapons or even peaceful terrorism has been introduced, which was until now simply an artificial absurdity.
A new conception of authorship has been introduced, which is characterised by the law of the author: the consummation of the crime, the practice of using evidence provided by experts who are currently the same policemen that have previously worked in the preliminary enquiry.
7. Unfortunately, the exceptionality in the administration of Justice is not only restricted to the Audiencia Nacional but it also affects ordinary justice as is the case with the crime of disobedience against 7 Basque politicians for seeking political dialogue. This case is taking place in the Sala Special of the 61st Article in the Supreme Court of Justice in the Basque Country which is now responsible for the application of the Law of Political Parties.
8. A last thought concerns the role the lawyer plays in front of this reality
that not only puts at risk his moral integrity – accused of ideological affinity-, but also of his physical integrity due to the growing criminalization of his professional work.
We consider the establishment of sources of information to ameliorate our knowledge of these cases necessary. Furthermore, it is fundamental to create mechanisms to protect the action of the defence. We make a call to intensify cooperation and collaboration between lawyers in different contexts. We emphasize the nonconformist and tireless nature of the exercise of defence and the inherent right of lawyers to criticize.
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