Recently, the European Court of Human Rights (ECtHR) ruled against Spain in a case involving the rights of detainees. The decision focused not on the severity of the sentence itself, but on the failure to provide incommunicado detainees with reliable legal counsel, and on mandatory, ex officio representation in certain situations. For years, the applicable law has required access to counsel, a measure that notably affects terrorism-related cases where suspects are questioned without defense counsel appointed by them.
The writer notes that a conviction remains pending because, although the practice has legal backing and has been upheld by courts, a substantial portion of the public already criticized it years ago, just as earlier cases did when they were approved or sanctioned. There is a sense that similar norms could face the same scrutiny if they were challenged again.
A cornerstone of the democratic criminal process is that no right may be curtailed merely because of the crime charged or the person accused. Restrictions must be justified, necessary, and proportionate on a case-by-case basis, with each decision reflecting a unique and specific rationale.
In the terrorism context, there was an understandable concern that some lawyers might belong to or assist insurgent networks and could compromise investigations. Historical parallels are drawn with past regimes where lawyers aligned with illegal groups, underscoring that fears alone do not justify blanket presumptions in criminal proceedings.
Nonetheless, the obligation to demonstrate a concrete and well-founded risk remains essential. The mere fact that a crime is involved or that the accused has a certain profile cannot automatically render a denial of counsel permissible without scrutiny.
Following the ECtHR ruling, some ETA members pursued punishment in ongoing trials, and others who were convicted may seek remedies to challenge their sentences. If the court’s reasoning aligns with the ECtHR’s concerns, acquittal or sentence annulment could follow in cases where rights were not adequately protected, highlighting the tension between democratic principles and the fight against terrorism.
In today’s charged atmosphere, voices from both sides sometimes dismiss the law in favor of a self-styled notion of justice. Judges and the courts, influenced by political and media pressure, can face calls to override the rule of law, which the Constitution makes clear must be respected even when unpopular. The acquittal or release of convicted ETA members remains a difficult test for the judiciary.
Justice cannot be blind, yet it must be principled. Judges should apply the law firmly, resisting pressure from parties, business interests, or media campaigns. This insistence on due process safeguards everyone’s rights.
However, ECtHR decisions do not automatically guarantee acquittals for all detainees without lawful counsel, nor do they guarantee new trials or the overturning of all convictions. The evidence in each case would still need to be weighed carefully, and in some instances a confession elicited without trusted legal assistance could be called into question. It is a reminder that the rule of law requires robust safeguards for the accused.
Now is a moment to revisit proposals aimed at limiting rights in a broad way based on alleged facts or alleged perpetrators. The presence of a victim who is a woman, a minor, or a person with a disability does not justify broad presumptions that curtail the defense or the presumption of innocence. There are ongoing discussions and proposals to consider before moving toward a future that may appear less democratic in the handling of criminal proceedings.
The ECtHR has made its stance clear, underscoring that legislative power must comply with constitutional and international obligations. Those who defend human rights protect fundamental liberties, the apex of the legal system, and this remains a pivotal achievement of modern civilized societies, even when it comes with painful compromises.
Is it lawful simply to yield to such standards? The question remains whether adherence to human rights will stand as the final check on authoritarian tendencies that persist into this century.