SENZA CENSURA N.19

MARCH 2006

APPEAL OF THE BASQUES ORGANIZATIONS SEGI AND GESTORAS PRO AMNISTIA AGAINST ADD THEM TO BLACK LISTS

On December 27th 2001, representatives of the 15 member states of the European Council adopted, in the framework of Foreign Policy and Common Security (FPCS), two policies. Policy 2001/930/FPCS and 2001/931/ FPCS, came into immediate effect in the official bulletin of the European Community on December 28th 2001.

In this common policy 2001/931/FPCS, the fifteen states established a list of groups and people who they accuse of terrorism. Among them there are many Basque citizens and associations (1). A request by the concerned state invoking a judicial resolution is enough to be included in this list.
The state is not required to justify the value of this resolution. In this case, the Spanish authorities included the said individuals and organizations with the only legal base of an edict by an investigation judge -Baltasar Garzón, an investigation judge at the Audiencia Nacional (National Court)- accusing them of being terrorists (2). There has been no trial against most of the organisations -see the information on the trial against Jarrai-Haika-Segi youth organisations below-. We must highlight the fact that these people and groups that a few years earlier worked in a public, legal and transparent way never had the opportunity to defend themselves. The organizations have been suspended and many of their members have been in prison, without a trial, for four years, the limit of preventive imprisonment without trial in the Spanish legislation. That is the case of the organizations SEGI and Gestoras Pro Amnistia and their main public members and spokespersons.

Moreover, the organisation SEGI, which always carried out its activities in defence of youth rights publicly, was not subject to any measures making it illegal, -i.e. there was no resolution in the domestic jurisdiction declaring SEGI or its activities against the law- neither in the French nor Spanish state when it was included in the European black list on December 27th 2001. Later, on 05/02/02, SEGI was declared illegal in Spanish territory via a decree by Baltasar Garzón. It is still legal in the part of the Basque Country under French administration.
The trial against Jarrai-Haika- Segi started on 02/02/05, with 29 young activists accused of terrorism (3). After three months the Audiencia Nacional - a Spanish special court for crimes of terrorismdecided in its verdict to give minimum sentences of two to three and a half years to 24 members of Jarrai, Haika and Segi for a crime of "illegal association" and declared that the youth movement is "not a terrorist organisation". Did this decision produce any changes upon the inclusion of Jarrai-Haika Segi in the "Black List"?? NO.

In the case of Gestoras Pro Amnistia, they had already been declared illegal by Judge Baltasar Garzón on 19/12/01. However, this decision, adopted through an edict declaring the illicit nature of its activities, was made by Judge Garzón in his position as a prosecuting judge, that is, with a cautionary effect. Therefore, this decision is by no means firm and definitive. Despite all of this, both organizations were included in the list and it is evident that the inclusion in the European list directly affects the rights of those organizations and involves considerable damage.

Article 1.6. of the 2001/931/CFSP Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism declares that "The names of persons and entities on the list in the Annex shall be reviewed at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list". In its decision 15453/01 on 18th of December 2001, the Council officially stated that it would be possible to appeal any mistaken inclusion in the list (4). However, on ratifying the Amsterdam Treaty, the fifteen member States declared that the decisions taken in the framework of the Common Foreign and Security Policy (CFSP) would not be subject to control by the EC Court of Justice with headquarters in Luxembourg.
Of course, this inclusion can not be appealed within the internal jurisdiction of each state. That is why the organisations affected by inclusion in these lists submitted an appeal to the European Court of Human Rights against the fifteen member States -at that time-, because in the framework of the European Union they do not have the "right to have their case be heard by an impartial tribunal", a right set out in article 6 of the European Human Rights Convention.
Thus, the associations SEGI and Gestoras Pro Amnistia submitted an appeal on February 1st 2002, received by the European Court of Human Rights on February 4th, on the following basis:

- "The States have violated the right to be presumed of innocent (article 6.2 of the European Convention of Human Rights), by qualifying these organizations as terrorists, without this being previously formalized in a definitive way by a Court. Thus, the right to a defence has been violated.

- "The measure adopted by the 15 States directly violates the right to free speech (article 10 of the Convention), the right to free association (article 11 of the Convention) as well as the right to the protection of the assets of the association (article 1, protocol 1 of the Convention).

In a decision dated May 23rd, 2002, this appeal was rejected by the EHRC, based on the argument that the said organisations had not suffered any rights violations because the EU list was not of an executive nature. Nevertheless, the EHRC invited both organisations to explore the possibility of appealing to the EU jurisdiction, the Luxembourg Courts.

SEGI and Gestoras pro Amnistia appealed to the Court of First Instance (CFI) of the European Community, invoking the damages to the reputation of the said organisations caused by their inclusion in the black list and demanding reparation.
In a decision dated 7th June, 2004, the CFI declared itself unable to rule on the issue because, as seen above, the UE Treaty does not grant the Luxembourg jurisdictions powers to control the actions of the European Council in the framework of the CFSP. It added that there is probably no rout to appeal against such decisions before the EU jurisdiction or the national jurisdictions either.

The cases of SEGI and GESTORAS generated a major contradiction in the UE, to the extent that three new articles had to be incorporated into the European Constitutional Treaty draft, granting the EU jurisdictions powers over such matters -articles III-322 and 376, and annexed declaration n° 15. The legal struggle continues: the cases of SEGI and GESTORAS have been taken to the EC Court of Justice as a revision appeal.
In any case, we do not believe the only way to correct this unjust situation; created because of political interests must be the path of legal action. We must implement and promote social and political action to force this nonsense to be changed.

NOTES

1.- KAS, Xaki, Jarrai, Haika, Segi, Gestoras pro Amnistía, Askatasuna, Herri Batasuna, Euskal Herritarrok, Batasuna are organisations that were working in a public and legal frame. Some of them not active any more, some others nowadays are
illegal in the Spanish state, but still legal in the Basque territory under the French administration. All of them considered terrorist for the connection with ETA.

2.- It is said that Baltasar Garzón "illegalised" all these organisations, but, been strict with the task of investigation of the judge, he only has the faculty to suspend their activity to avoid the commission of new presumed delicts, until these organisations will defence themselves in a fair trial-an oral hearing, with full guarantees- in which the possibility of criminalisation will be heard and judged according to the penal principle of the contradiction between parts. In conclusion, Garzón has not the capacity to make illegal any group, any association, just to suspend their activity as a caution before a trial.

3.- All the information referred to this trial in the web site of the "Euskal Herria Watch" initiative for the international
observation of the political trials in the National Court www.ehwatch.org

4.- We must take into account that the European Parliament has underlined the illegality of the procedure for the adoption of the 2001/931/CFSP Council Common Position as the Parliament has not been consulted for this decision. It forced the question made by Graham R Watson - DV\458818FREuropean Parliament 310.982- asking for the "democratic deficit" of this procedure.

October 2005

www.behatokia.info