The right to defense and security

Recently, the ECHR has condemned Spain for violating the European Convention on Human Rights. It occurred in the case of ATRISTAIN. The punishment is not because it was unexpectedly harsh, but based on the refusal to provide incommunicado detainees with a reliable lawyer, and in any case forced to do so ex officio. The law has provided this for years and has a very special effect on those detained for terrorism offenses and interrogated without a lawyer appointed by them.

I say that conviction is pending because although it is prescribed by law and our courts have upheld this practice, many, if not most, of us condemned it years ago, just as we did in cases that were approved or sanctioned. He claimed that norms going in the same direction and that they could share the same fate.

It is a fundamental rule of the democratic penal process that no right can be limited on a generic basis depending on the crime committed or the person of the perpetrator. It is a fundamental requirement that the restriction be justified, necessary and proportionate in each case, so that the motivation in each decision is unique and specific.

There was no doubt that, in the context of terrorism, there was a general risk that lawyers formed or formed part of the ETA network and could jeopardize the investigation. But the same thing happened in the Franco regime, where the lawyers belonged to the illegal parties at the time.

However, this general presumption, being obliged to justify the existence of a specific, concrete and determined risk, and the lack of legal belief that the danger always agrees due to the crime or the perpetrator, is not valid in criminal proceedings.

Not surprisingly, after the sentence was imposed, many ETA members resorted to punishment in pending trials, and others who have been convicted will seek to enforce it to have their sentences quashed. And if the elements put forward by the ECtHR overlap, acquittal or annulment will undoubtedly be the logical consequence of a rule that does not respect the rights of the accused, whatever the crime. This is democracy and this is Europe with its flaws and virtues.

All of a sudden, in this environment of constant conflict, voices arose from both sides, ignoring the law, embracing the values ​​of “justice” that they consider superior to the law, and accusing the courts and determined judges of not surrendering alone. exclusively to the rule of law, which, as the Constitution dictates, is only partially unreadable and must also be accepted where we do not like. And it is not easy to accept the acquittal and release of convicted ETA members.

Justice cannot be blind. You have to look through both eyes and without covering it up. The judge must apply the law without succumbing to pressure from the parties, company interests or the media. This is a guarantee for everyone.

However, the decision of the ECtHR will not mean that all defendants who are not given a reliable lawyer will be acquitted, and that a new process will be opened by seeing the annulment of the sentences of the convicts.

In both cases, the only evidence against the charge would have to be the detainee’s confession, obtained without the assistance of his trusted lawyer; and about the convicts who have filed a lawsuit before the ECtHR for the annulment of their convictions, and that the only way to end the violation of rights is annulment.

Therefore, without adequate legal aid, it is not easy to annul sentences or acquit, except in cases where confessions are in themselves questionable and difficult to accept legally. Something that should never happen in the rule of law.

Now is the time to reflect on proposals made in specific areas that seek to limit rights in a general way based on facts or alleged authors. The fact that the victim is a woman, minor or disabled cannot imply that the law establishes general presumptions that limit the accused’s right to defense and the presumption of innocence. There are some examples and projects to consider before taking steps towards a future that seems very different from the already undemocratic criminal process views.

They are no longer just words. The ECHR determined the speed and warned. Legislative Power is governed by the Constitution and International Treaties. And those who protect human rights are preferred because these, fundamental rights, constitute the apex of the legal system. It is the great conquest of civilized societies that we must defend even when the consequences hurt us and our hearts are torn.

Is it law? And yielding to it is the final brake on the authoritarian tendencies of this century.

Source: Informacion

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