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Counter-terrorism Measures in Spain

Spain has a long and painful history of internal political violence. The Euskadi Ta Askatasuna (Basque Fatherland and Liberty – ETA) has been waging a violent campaign to establish a separate Basque state since the 1960s. In the last four decades, according to official statistics, ETA has killed 831 people, kidnapped seventy-seven, and injured 2,392.²⁸ In addition, thousands of people, from police officers to politicians to journalists and intellectuals, have lived under the threat of violence by ETA. The separatist group has employed targeted assassinations as well as indiscriminate attacks to further its political goals. The violence has diminished over the last few years. While ETA claimed responsibility for the assassination of twenty-three people in 2000,²⁹ the group killed three people in 2003.³⁰

Basque separatist violence has accompanied Spain’s transition to democracy since 1975 after thirty-nine years of dictatorship under General Francisco Franco. Since that time, the Spanish state has adopted a variety of strategies to fight ETA. The criminal justice system has long formed an important part of Spain’s approach. Over five hundred people are in prisons around the country for membership or collaboration with ETA. Although Spain has adopted (and later abrogated) specific antiterrorism legislation in the past, terrorist crimes are now included in the regular Criminal Code and special law enforcement and judicial powers to combat terrorism are incorporated into the Criminal Code of Procedure. During one of the worst periods of the conflict, between 1983 and 1987, the Antiterrorist Liberation Groups (GAL) which were death squads financed by secret funds of the Interior Ministry, killed twenty-eight people, a number of whom later turned out to be unconnected to ETA.

In February 2003, a Spanish judge ordered the closing of Euskaldunon Egunkaria, a Basque-language daily, and arrested ten employees on charges of affiliation with ETA, while the Spanish Supreme Court permanently banned the Basque political party Batasuna in March 2003. Spain’s two major political parties, the PSOE and the PP, adopted an Antiterrorism Pact in December 2000, a kind of gentleman’s agreement to cooperate and coordinate state response to ETA.

Spain’s extensive antiterrorism provisions, though developed in response to internal violence, placed that country at the forefront of international antiterrorism efforts in the wake of the September 11 attacks. In response to those attacks, the U.N. Security Council adopted Resolution 1373 on September 28, 2001, mandating all U.N. member states to adopt specific measures to combat terrorism and creating the Counter Terrorism Committee (CTC) to monitor states’ compliance. Spain has been an active participant in the work of the CTC. In May 2004, Javier Rupérez, former Spanish ambassador to the United States (2000-2004), was appointed executive director of the Committee. Another Spaniard, Inocencia Arias, was chairperson of the Committee from April 2003 to May 2004.

The new Zapatero government sees itself as a leader in the effort to combine effective antiterrorism efforts with respect for human rights. The director of the Unit for the Coordination of Spain’s Participation in the United Nations Security Council of the Ministry of Foreign Affairs, Angel Lossada, emphasized that “Counter terrorism has to be framed in the context of respect for human rights…Spain actively supported the Security Council resolution on human rights and counter terrorism – a step forward in this protection.”³¹ Security Council Resolution 1456, adopted in January 2003, requires that “States must ensure that any measure taken to combat terrorism complies with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law.”³² In June 2003, Nigel Rodley, a member of the U.N. Human Rights Committee, appeared before the CTC to remind the committee that Resolutions 1373 and 1456 must be taken together to ensure that Resolution 1373 did not become “an instrument for circumventing states’ human rights obligations.”³³ Lossada also said Spain, as part of its efforts in the international arena, was working for the reform of the CTC “to introduce elements for the protection of human rights.”³⁴

Attorney General Cándido Conde-Pumpido explained to Human Rights Watch that Spain’s “history of twenty-five years of internal terrorism coinciding with democratic development” has resulted in a mature and effective approach to terrorism. He argued that “the counter terrorism fight at the international level is at the same stage as the fight against ETA twenty years ago: illegal detentions [and] torture,” problems which no longer exist in Spain due to an antiterrorism approach “based on respect for the rule of law.”³⁵

Spanish Legal System

Like most countries in Europe, Spain has a civil law system. In this system, an examining magistrate (juez instructor) is in charge of overseeing the investigation of a criminal offense with the help of police officers assigned to him or her for this purpose, while the state prosecutor has the dual role of ensuring that the rights of both defendants and victims are respected.  Private prosecuting counsel can be appointed by the victim or victim’s family as well. In ordinary criminal cases, police may arrest and hold suspects for a maximum of seventy-two hours before either releasing them on their own authority or under orders from a judge, or bringing them before the examining magistrate.

When a defendant is brought before an examining magistrate, the magistrate can either release the detainee without charge, remand him or her to pre-trial detention (prisión provisional) or release him or her on bail subject to a security lodged with the court or other conditions designed to ensure the accused will not abscond (libertad provisional). It is the examining magistrate who prepares the committal proceedings (sumario), containing the state’s case against the accused, and transfers it to the appropriate trial chamber. Offenses punishable by less than six years imprisonment are tried in local criminal court in proceedings presided over by a single professional judge, while those punishable by over six years imprisonment are tried before a panel of three professional judges in higher criminal court. Since 1995, certain crimes–including crimes committed against individuals (e.g. murder), offenses committed by civil servants, embezzlement of funds, and crimes against the environment–have been tried by a jury composed of nine members and one presiding judge.

All terrorism cases are investigated and tried at the Audiencia Nacional (National High Court). Created in 1977, the Audiencia Nacional has jurisdiction over “crimes committed by persons belonging to armed groups or related to terrorist or rebel elements when the commission of the crime contributes to its activity, and by those who in some way cooperate or collaborate in the acts of these groups or individuals.”³⁶ The Audiencia Nacional has six examining magistrates and an equal number of criminal trial chambers, each presided over by a panel of three professional judges. Crimes under the jurisdiction of the Audiencia Nacional are not subject to trial by jury. Until recently, only two prosecutors assigned to the Court specialized in international terrorism; Attorney General Conde-Pumpido announced in May 2004 his intention to raise this number to six.³⁷ Pursuant a 2003 law, criminal cases decided by the Audiencia Nacional may be appealed to the criminal appeals chamber of the same court. As of December 2004, however, the chamber was not operational.³⁸

Spanish law guarantees the right to legal assistance to all persons accused of crimes. Those who are financially unable to designate private counsel are guaranteed the free assistance of a legal aid attorney. As will be discussed in detail below, virtually all terrorism suspects are held in incommunicado detention upon arrest. During this period, they do not have the right to hire a lawyer of their own choosing. Instead, the Legal Aid Department of the local Bar Association assigns a lawyer upon request from the arresting authority. The Legal Aid Department of the Madrid Bar Association maintains duty rosters for different categories of criminal offenses; there is a specialized list for cases under the jurisdiction of the Audiencia Nacional. Every twenty-four hours, two lawyers are on call to respond to requests for legal aid attorneys; if there are more than two arrests in connection with crimes under the Audiencia Nacional’s jurisdiction, the Bar Association proceeds down the duty roster in alphabetical order to designate lawyers. Legal aid service is obligatory for all practicing attorneys, but the lawyers themselves choose which list they wish to serve on. Those wishing to be placed on the list for Audiencia Nacional cases must have five years experience and have completed specialized courses.³⁹

Counter-terrorism Powers Under Spanish Law

Spain does not have a special antiterrorism law. The Criminal Code (Código Penal, CP) defines terrorism offenses. The Code of Criminal Procedure (Ley de Enjuiciamiento Criminal, LEC) establishes the powers of law enforcement agencies and judicial authorities in investigating crimes of terrorism, while at the same time proscribing the rights of terrorist suspects.  These special measures derive from Article 55(2) of the Constitution that allows for the suspension of the rights with respect to length of detention, privacy of the home, and secrecy of communications “as regards specific persons in connection with investigations of the activities of armed bands or terrorist groups.” 

Article 571 of the Criminal Code defines terrorists as “those who belonging, acting in the service of or collaborating with armed groups, organizations or groups whose objective is to subvert the constitutional order or seriously alter public peace” commit the attacks described in Article 346 (attacks on buildings or transportation or communications infrastructure with the use of explosive devices) and Article 351 (arson causing risk of injury or death). The article does not criminalize the mere act of belonging to such a group, but rather the commission of criminal acts by members of these groups with the above-mentioned goals.⁴⁰ Articles 572-579 establish the minimum and maximum prison sentences for different crimes when committed by members of the above-defined armed groups or those acting on their behalf. Article 580 allows Spanish courts to consider foreign convictions for activities related to armed groups as equivalent to convictions under Spanish law to enable citing recidivism as an aggravating factor.

The principle features of Spain’s counter-terrorism provisions are the extended period of detention in police custody allowed before the prisoner must be brought before a judge, and the use of incommunicado detention. Whereas the Code of Criminal Procedure (LEC) establishes that all persons arrested must be brought before a competent judge within seventy-two hours of the arrest, those detained on suspicion of membership or collaboration with an armed group (including terrorist organizations) may be held for an additional forty-eight hours. This means that terrorism suspects may be under police custody for five days before being seen by a judge.

The LEC also stipulates that the competent judge may order that any detainee be held incommunicado while in police custody (either three or five days), while those accused of membership or collaboration with an armed group (including terrorist organizations) or of having committed a crime in concert with two or more other individuals may also be held incommunicado for an additional five days if remanded into pre-trial detention. Furthermore, incommunicado status may be re-imposed, even after the maximum ten days have expired, for an additional three days. Incommunicado detainees are guaranteed many of the rights accorded all other detainees, with several important limitations.

Persons in incommunicado detention have the right to:

• Be informed immediately in a manner they can understand of the grounds for the arrest and their rights;
• Remain silent until brought before a judge;
• Not incriminate themselves or confess guilt;
• The use, free of charge, of a interpreter, if necessary;
• Have their consulate notified in the case of foreign nationals;
• A medical examination by a state forensic medical officer, and to request a second examination by a different state forensic medical officer.

Unlike all other detained persons, those in incommunicado detention do not have the right to:

• Notify relatives or a third person of their choice about the arrest and place of detention;
• Receive and send correspondence or other communications;
• Receive visits from religious ministers, private doctor, relatives, friends or any other person;
• Designate their own lawyer – they must be assisted by a legal aid attorney;
• Consult with their legal aid attorney in private at any time.

The incommunicado regime and its use in antiterrorism cases are discussed in detail in the section entitled The Use of Incommunicado Detention.

Judicial Investigations into International Terrorism

Investigations into the 11-M attacks

The law enforcement response to the March 11 massacre was swift. Audiencia Nacional examining magistrate Juan del Olmo was quickly placed in charge of the investigation into 11-M. Pursuing available clues – in particular an unexploded bomb found in a backpack on one of the trains; an abandoned van containing, among other things, seven detonators; the chips of the cell phones used as detonators; and the testimony of witness – the National Police arrested five suspects on March 13^th. By the end of the month, the police had arrested nineteen more. On April 3, 2004, police officers in the special GEO (Grupo Especial Operaciones, Special Operations Group) brigade surrounded an apartment in Leganés, a neighborhood of Madrid. After a standoff that lasted several hours, during which shots were fired from inside the apartment, the seven men inside committed suicide by detonating explosives strapped to their bodies. The explosion also killed special operations agent Javier Torrontera and wounded fifteen other agents.

At least seven of those suspected of involvement in the planning and/or execution of 11-M were already, or had earlier been, under police surveillance on suspicion of involvement in terrorism prior to March 11. Jamal Zougam, a 31-year-old Moroccan, one of the first five men to be arrested on March 13 and the only one of the five still in prison, had been monitored in 2001 for suspicious activities. He has been linked to Imad Eddin Barakat Yarkas, the man accused leading an Al-Qaeda cell in Spain, as well as other alleged members of the cell (see discussion below).⁴¹ Serhane Ben Abdelmajid Fakhet, a 36-year-old Tunisian who allegedly coordinated and participated in the bombings, and subsequently died in the Leganés apartment, was apparently under investigation since 1995 for alleged membership in an Al-Qaeda cell in Spain.⁴²

As of the end of 2004, eighteen people were in jail in Spain in connection with 11-M and forty-one people had been arrested and subsequently released after varying amounts of time in police custody and prison. The vast majority of the forty-one are on provisional release. A few were simply questioned and released without charge. Rabei Osman el Sayed, an Egyptian who was arrested in Milan on June 7 was extradited to Spain on December 7. He is suspected of masterminding the March 11 attacks.⁴³ Of the eighteen in pre-trial detention, nine are Moroccans and five are Spaniards, while the remaining four are Syrian, Lebanese, Algerian and Egyptian, respectively; Moroccans account for twenty-two of those detained and subsequently released, while seven Spaniards fall into this category.⁴⁴ The twelve Spaniards who have been detained are all suspected of involvement in the theft and/or sale of the explosives used the attacks, or the sale of drugs whose profits were used to finance the attacks.

Investigations into Al-Qaeda pre-dating 11-M

In November 2001, Audiencia Nacionalexamining magistrate Baltasar Garzón ordered the first arrests in what would become a complex judicial process against alleged members of al-Qaeda both within Spain and abroad. Between November 2001 and July 2002, the National Police carried out a three-phased operation, dubbed Operación Dátil (“Operation Date”), to dismantle an alleged al-Qaeda cell in Spain.⁴⁵ The arrests were the culmination of an investigation underway since 1995, when many of the apprehended suspects had been placed under police surveillance and their telephones wiretapped. In all, twenty-three people have been arrested in Spain as part of the al-Qaeda investigation, while one man was arrested in Jordan and extradited to Spain; until November 2004, fourteen were in pre-trial detention and ten were on provisional release. On November 19, 2004, the trial chamber of the Audiencia Nacional that will hear the trial ordered that nine men on provisional release be returned to pre-trial detention.⁴⁶

The criminal case against presumed al-Qaeda terrorists is composed of two separate formal indictments. On September 17, 2003, Garzón issued a 692-page formal indictment of thirty-five alleged members of al-Qaeda. Of those named in the indictment,  fifteen are under international arrest warrants and/or European arrest warrants, including Osama Bin Laden, while two are in custody in other countries.⁴⁷ This indictment was expanded on April 19, 2004, to include five more defendants.⁴⁸ A second, separate indictment was issued on May 20, 2004, against Said Berraj, whose whereabouts are unknown. Thus, a total of forty-one men are under indictment in this single case.⁴⁹ Thirty-three are accused of membership in al-Qaeda, two of collaboration with al-Qaeda, nine are accused of as many homicides as there were fatal victims of the September 11 attacks in the United States, twelve of various financial crimes with the purpose of financing the organization, and two of illegal possession of weapons.⁵⁰

Seven defendants in the al-Qaeda case have been in pre-trial detention since November 18, 2001. That is two years before they were formally indicted and thirty-one months before the investigative phase of the process was declared official closed on June 15, 2004. The other seven had been in prison for periods ranging from four to twenty-eight months.⁵¹ Those on provisional release before the November 2004 court decision to place them back in pre-trial detention had spent periods of time in prison ranging from two to eight months. No date has yet been set for the commencement of the oral trial, though an undisclosed source close to the case told a journalist for the daily newspaper El País that it would probably begin in the early to mid 2005.⁵² 

On June 9, 2003, Audiencia Nacional Prosecutor Pedro Rubira Nieto issued his recommendations on the accusations to be formally leveled against those detained in the al-Qaeda process. In his report, Rubira states that he has no intention of prosecuting Kamal Hadid Chaar, Abdalrahaman Alarnaot Abu Aljer, Mohamed Khair Alsqqa (sic), and Ghasoub Al-Abras Ghalyoun (sic). All four men were nonetheless accused of membership in the terrorist organization al-Qaeda in Judge Garzón’s formal indictment issued three months later. Under Spanish law, the examining magistrate is wholly entrusted with formulating the indictment; the prosecutor may appeal the indictment after it is handed down. In this case, Prosecutor Rubira did not lodge any appeals against the indictment.⁵³ Al Abrash Ghalyoun is also accused of as many terrorist homicides as there were fatal victims of the September 11, 2001 attacks – referred to in Spain as 11-S – in the United States.⁵⁴ Lawyers for two of these defendants told Human Rights Watch that they had no doubts that their clients would be acquitted, since a case is not likely to prosper in the trial chamber if the prosecutor does not accuse.⁵⁵ The lawyer for one of the men said he had spoken with both Prosecutor Rubira and Judge Garzón before accepting the case. The lawyer claims that Rubira told him there wasn’t much evidence against his (then) potential client and that he would probably be freed on provisional release after the police concluded its investigation (which turned out to be true). He also claims that Garzón told him that while the man perhaps had had a connection to al-Qaeda in the past, he probably no longer did.⁵⁶