The European Court of Human Rights orders Spain to release imprisoned ETA militant

It's been a while since I posted something substantial. I could blame traveling -- which is technically true -- but visits with family, drinks with friends, and long afternoon naps have kept me from writing. (I did find some time to review the season opener of Breaking Bad over at another blog.)


In the meantime, I missed something rather interesting: Last week the European Court of Human Rights issued a ruling on the continued imprisonment of ETA member Ines del Rio Prado. According to the BBC:

Spain was also ordered to pay the prisoner, Ines del Rio Prada, damages of 30,000 euros (£24,000; $37,000). 

Del Rio was jailed for 30 years but was due for release in July 2008, having been granted remission. 

However, the remission rules were changed in 2006 and Spain decided to postpone her release until 2017.

The ruling may have implications on many ETA members who were sentenced via Spain's Parot Doctrine, whereby convicted terrorists are effectively given life sentences, despite there being a legal limit in Spanish law on how long people can be imprisoned. People convicted of political violence in Spain -- excluding those whose crimes were commissioned by the state -- are often given ridiculously long sentences, often well over 1,000 years in jail. However, the Spanish Criminal Code limits actual imprisonment to 30 years. Through good behavior and the like, a prisoner can have his or her sentence significantly reduced. Prior to 2006, sentence reductions were made from the 30 year maximum. So, if a person was sentenced for 1,000 years, but received a reduction of one-third of their sentence, they would serve 20 years, rather than 666 years.

In 2006, the Audencia Nacional -- responding to public outrage over the release of many notorious ETA militants convicted in the 1980s -- decided to create a special dispensation for "terrorists," whereby reductions would be made to their total sentence, not the 30 year maximum. So, if an ETA member convicted of "blood crimes" (i.e. culpability in political violence in which a person was killed or injured) and sentenced to 1,000 years, any reductions he or she obtained would be deducted from the total sentence of ,1000 years, rather than the 30-year maximum that was now reserved for "normal" criminals. Thus the Parot Doctrine keeps convicted ETA members in prison for life.

The European Court's decision does not affect the Parot Doctrine entirely. Rather, it struck down the retroactive application of the doctrine. According to the ECHR:

The applicant, Ines Del Rio Prada, is a Spanish national who was born in 1958. She is serving a prison sentence in the region of Murcia (Spain). In eight sets of criminal proceedings for offences linked to terrorist attacks, she was sentenced to various prison terms. Served successively, the prison sentences would have totalled more than 3,000 years. 

The applicant started serving her sentence in February 1989. In November 2000, having regard to the close legal and chronological connection between the offences, the Audiencia Nacional combined the various sentences and fixed the term to be served at 30 years, the maximum limit applicable under Article 70 of the 1973 Criminal Code, in force at the relevant time. 

The case-law of the Spanish Supreme Court on prison benefits (particularly remission) changed in 2006. Although, under a judgment of 8 March 1994, the maximum term of 30 years provided for in Article 70 of the 1973 Criminal Code acted as a “new and autonomous sentence, to which the prison benefit provided for by law was applicable”, the Supreme Court changed its position in a judgment of 28 February 2006 and introduced the so-called “Parot doctrine”, under which remission was to be applied to each sentence individually, and not to the maximum 30-year term. 

On 24 April 2008, allowing for remission for work done in prison, the prison authorities proposed to release Ms Del Rio Prada on 2 July 2008. On 19 May 2008, however, the Audiencia Nacional asked the prison authorities to revise their calculation in application of the “Parot doctrine”, following which the Audiencia Nacional decreed 27 June 2017 as the final date for the applicant’s release...

Relying on Article 7 (no punishment without law), the applicant complained that the Supreme Court’s case-law had been applied retroactively. She also considered that her continued detention was contrary to Article 5 (right to liberty and security). Lastly, under Article 14 (prohibition of discrimination), she considered that the new case-law was applied by the Spanish courts for political reasons, to delay the release of prisoners convicted of acts of terrorism. 

The applicable provisions of the 1973 Criminal Code were somewhat ambiguous, and it was only on 8 March 1994 that the Supreme Court provided the first clarifications. 

Nonetheless, the practice of the prison authorities and of the Spanish courts consisted in considering the sentence to be served as a result of the 30-year maximum term established in Article 70 of the 1973 Criminal Code as though it were a new autonomous sentence, to which prison benefits such as remission for work were applied. Accordingly, at the time of the offences committed by the applicant and when the decision to combine her sentences was taken, the relevant Spanish law, including case-law, was, taken together, sufficiently precise as to enable her to identify the scope of the sentence and the manner of its execution. 

In contrast, the applicant could not have foreseen that the method for calculating remission would be the subject of a change in the case-law (decision of the Supreme Court of 28 February 2006), thus calling into question the date of her release. The Court reiterated that the principle that only the law can define a crime and prescribe a penalty (no punishment without law) enshrined in Article 7 prohibits the criminal law from being interpreted broadly, to the detriment of the accused. The application of the Supreme Court’s new interpretation had retroactively extended the applicant’s sentence by nearly nine years, as the remission for work done in prison from which she ought to have been able to benefit was rendered invalid. Thus, this measure did not merely concern the execution of the sentence imposed on the applicant, but also had a decisive impact on the scope of the “penalty” within the meaning of Article 7. 

The Court noted the absence of prior case-law along the lines of the Supreme Court’s new interpretation; moreover, the Government accepted that prison and judicial practice still continued to follow the judgment of 8 March 1994 at the relevant time. In this regard, the Court emphasised that the domestic courts could not apply retroactively and to the detriment of the persons concerned the spirit of legislative changes that occurred after offences had been committed. 

It had therefore been difficult, if not impossible, for Ms Del Rio Prada to foresee that the method for calculating remission would be the subject of a change in the Supreme Court’s case-law in 2006 and that this change would be applied to her retroactively, thus extending substantially the duration of her imprisonment. In consequence, the Court concluded that there had been a violation of Article 7...
 The applicant did not contest the lawfulness of her detention prior to 2 July 2008, the date initially proposed for her release. She complained about her detention after that date. 

As Ms Del Rio Prada had not been able to foresee the retroactive application to her case of the change in case-law on calculating remission, her detention had not been “lawful” since 3 July 2008, in breach of Article 5 § 1.

Though the ruling does not directly challenge the Parot Doctrine, El Pais notes that more than half of the ETA prisoners to whom this doctrine has been applied were convicted prior to the introduction of the Doctrine in 2006. Conceivably, this ruling -- which Spain is bound by treaty to enforce -- could lead to the release of many ETA militants currently in prison.

The Rajoy Government plans to file an appeal to the Grand Chamber of the European Court of Human Rights. The Interior Minister, Jorge Fernández Díaz, while speaking at a conference for the Association of Victims of Terrorism told attendees that del Rio "is not going to leave prison." He also criticized the court for making its ruling on the fifteenth anniversary of the murder of PP councilor Miguel Ángel Blanco by ETA. 


If the Grand Chamber of the European Court of Human Rights upholds the ruling, this could have a significant impact on the moribund peace process. Newly released prisoners could become key players in peace efforts. Militants, after all, have a specific credibility when it comes to making peace, a sort of revolutionary's "Nixon goes to China." The Basque ex-prisoners could play as vital a role as did their Irish counterparts did in the 1990s. Thus far, prisoners have been a positive force in pushing ETA to end their violent campaign.


On the flip side, the sudden release of many notorious ETA activists from the violent eighties may send the Spanish right and the Rajoy Administration into hysterics. What little progress has been made in the Basque peace process -- and there has been precious little progress -- could be undone. Of course, since little progress has been made over the last two years, there's really not much to reverse.