Can Europe Make It?

European court ruling may be stealth incentive for ETA’s disbanding

A controversial European court decision requires the Spanish government to grant early release to jailed terrorists. Will it be secretly glad to have a pretext for doing so?

Robert Latona
1 November 2013

An anti-ETA protest in Bilbao, Spain. Flickr/dalequetepego. Some rights reserved.

The European Court of Human Rights has just made Inés del Río Prada very happy.

Not only will this early, enthusiastic and exceptionally cold-blooded enlistee in the Basque terror group ETA be getting out of prison four years ahead of schedule, the Spanish government was ordered to send her on her way with 30,000 euros compensation for having kept her incarcerated after 2008.

The ruling by the Strasbourg-based court’s Grand Chamber was made public on 21 October, two years and a day after ETA announced the “definitive cessation” of its “armed struggle” for an independent Basque homeland carved out of northern Spain and France, in which 857 people were killed.

The seventeen-member tribunal upheld a July 2012 ruling by a lower court decree that Inés del Río was denied her “right” to take advantage of a legal loophole that has since been sealed off. At that time, the Madrid government immediately appealed and declined to execute the release order, alleging reasons of “public safety".  But the new decision cannot be appealed. Inés and dozens more ETA killers will go free. The question is: will Spanish authorities be secretly relieved if that is the way the controversy plays out?

Del Río was convicted for her undisputed involvement in 24 murders and an additional 108 counts of attempted murder.  In accordance with the sticker-price penalties required by Spanish jurisprudence, she was sentenced to 3,200 years behind bars in February 1989. Spain’s 1973 Criminal Code, in force at the time of Inés’s sentencing, stipulated that lawbreakers could be put away for no more than 30 years, no matter how many felony counts accumulate on their rap sheet. Under an even earlier Franco-era dispensation, they were already entitled to a rebate of up to 12 years in return for study or vocational training, on terms (one day off for every two days of “productive” effort) that can only be described as generous. Since the 30-year cap on hard time was absolute, the criminal with the longest or bloodiest list of crimes to expunge could stroll out the gate after only 18 years behind bars.  

For Inés del Río, that would have been in February 2008 – making a balance sheet with one year and four months for each of the human lives she helped end without pity or regret. Only this time the authorities chose to invoke what has come to be known as the “Parot doctrine” to ensure that she was kept out of circulation until her full 30 years (including time spent in remand) are up in July 2017.

“Doctrine” here means case law and takes its name from Henri Parot, one of ETA’s most prolific killers. In 2008, he was preparing to re-enter the world in which he butchered 82 people. Though the limit on real time was upped to 40 years when Spain adopted a new criminal code in 2006, the changes could not be imposed retroactively, so Parot’s turn came when he had served just 18 of the 4,800 years in his sentence.  

Two years earlier, however, the Socialist government of José Luis Rodriguez Zapatero had found itself entwined in a politically corrosive, no-win controversy when another notorious ETA gunman - Iñaki de Juana Chaos: 25 murders, a 3,198-year sentence, 18 years actual time imprisoned - was about to be released. De Juana was obligingly stupid enough to publish a call for the assassination of various public figures, thereby scuppering his imminent release (until 2008) but fears that a similar debacle could trigger a public opinion backlash against the Socialists was the principal reason why, when it came Parot’s turn to walk in 2006, the government announced that remission benefits would henceforth be applied sequentially, not simultaneously, one sentence at a time. Spain’s Supreme and Constitutional Courts concurred that the upper limit remained fixed (in Parot’s case, at 30 years) but multiple sentences would no longer be automatically bundled together for the purpose of simultaneous remission.

The reason for the change was explained by then-High Court justice Javier Gómez Bermúdez. “How can you justify having the perpetrator of a robbery that ends in a homicide serve the identical sentence as someone who has committed 25 or 30 or 35 murders?” he argued. “It’s absurd to give special breaks to offenders carrying out the orders of a criminal organization and help them to extend their career of crime, but not to the poor jerk (pringao) who robs a jewellery store or holds up people on the street.” 

The Grand Chamber was not swayed by his reasoning and countered that insofar as early remission was not conditional or discretionary, but applicable to anyone who met the legal conditions of entitlement, Del Prado’s ongoing detention is “unlawful.” Her “fundamental right” to deeply discounted jail time was guaranteed by Articles 5.1 and 7 of the European Convention on Human Rights.

The ruling will also affect the last individual still jailed for the “GAL” crimes of the 1980s when senior members of the Socialist government then in power organized an off-the-books death squad to see how ETA liked a taste of its own medicine. Three Galician separatist guerrillas will also benefit, as will seven jailed members of the GRAPO, a Bader-Meinhoff-style nihilist knockoff that murdered over 70 people.

Finally, the Parot doctrine would have kept at least 14 “common” criminals out of circulation a few years longer, including one convicted of 72 rapes, and another who is doing time for the sickening rape, torture and murder of three very young girls. They will soon be stalking the streets again while Inés parties with 53 of her fellow ETA members that are eligible for early release under the Strasbourg ruling (out of 473 currently jailed in Spain). So that settles it. Or does it?

Spanish Premier Mariano Rajoy has made it clear that as a signatory to the European Convention on Human Rights, Spain has no choice but to abide by the court’s findings. There are, however, a number of other countries, Britain among them, that have simply ignored its dictates. The changing context made this the less likely outcome for Spain.

Since ETA’s operationally hobbled leadership called on Spain and France “to negotiate a solution to the Basque conflict” in October 2011, there has been no new violence, but also no negotiations. The Spanish government has said it will not talk politics with terrorists. Nor has ETA accepted the government’s demands for it to disband, decommission its weapons and make a public declaration of repentance.

Rajoy has signalled his willingness to make concessions. The hitman who spat in the face of former cabinet minister Ernest Lluch after he gunned him down has been granted a fertility treatment costing the Spanish taxpayer 48,000 euros. State prosecutors raised only token objections when torturer Josu Uribetxeberria Bolinaga was freed in September 2012 on a claim that he was suffering from “incurable and irreversible” cancer.  As of October 2013, he appears to be doing just fine at a resort in Navarra. 

One of the things ETA wants to talk about is “the consequences of the conflict” -- shorthand for a blanket amnesty. Rajoy’s policy is to consider parole requests individually. Candidates for early release are required to repudiate ETA, cease to associate with hardliners, renounce the use of violence, ask forgiveness of their victims’ families and collaborate fully with authorities. Few have accepted the terms, so the court ruling comes at a time of ongoing stalemate. But concerns that the terror group may decide to change the game the only way they know how cannot be totally disregarded.

It already happened once before. In December 2006, fed up with the scant progress in clandestine “peace talks” with the 2004-2012 Zapatero government, ETA blew up a parking ramp at Madrid airport, killing two people. The group’s legacy leadership, feeling cornered and slighted, might contemplate a low-risk, low-casualty bomb attack or assassination as a way of putting the government on notice. Such a course would carry risks and, most importantly, undermine the advantages, leverage and authority obtained by pro-independence parties in recent Basque Country elections. But it should be kept in mind that it is terrorists we are talking about, not strategists.

The ruling out of Strasbourg might therefore just be what the Rajoy government thinks it needs: a chunk of meat to be tossed through the bars at the beast pacing inside its cage. It gives ETA just enough of what it wants (9% of its prisoners freed) to make acceptance worth their while. It gives the ruling Popular Party an excuse for what would otherwise be a highly controversial move. Rajoy can say Europe made me do it (perhaps phrasing it somewhat more delicately) to make the bitter medicine go down somewhat easier.

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