14 Apr

The spanish judicial fight against jihadism: rights, wounds and dubts

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Spain has a long judicial history in fight against terrorism. This history has been studied and analysed by the literature, especially after 1978 Constitution, which has tried to find an story that would be able to reconcile fight against terrorism with the respect for guarantees and fundamental rights. It was not possible in part because of the institutional, legal and officialdom continuity that entails the Spanish Transition in reference to the judicial machineries of dictatorship and of the constitutional system. Thereby, exceptionality regime come in throw the back door, producing a clearly expansive background of the Criminal Law of the Enemy in the fight against GRAPO, anarchism and, especially, ETA and “abertzale” surroundings. It’s famous the “slippery slope” of devaluation of rights and guarantees, that is produced when exceptionality becomes the norm. Nowadays, this model faces to another perspective concerning to its suitability in the fight against jihadist terrorism.

            When we talk about judicial action against jihadism it is essential to adopt a minimum empirical criteria and to make a distinction between researches about real events, which is the classical perspective of Criminal Law, and prospective investigation or research of possible future acts.

            In the first group we can find the judicial proceedings about the worst terrorist attacks. In Spanish framework we think about, for example, the facts of the 11th of March of 2004. Nobody can cast doubt on the necessity of clearing up this facts through an investigation that identify those responsible, with the intention of sitting them in front of the Court that examines their culpability and which will give its judgement. A different question is the orthodoxy of guarantees that is also necessary to call for in these cases and, often, it’s incompatible with the existence of procedural specialities and special courts, as it happens in the Spanish case. We neither can close our eyes in front of an obvious excess of state gesticulation which entails a large number of detainees and the use of indiscriminate police macro-operations with no procedural guarantees. In the Spanish example, the events of the 11th of March produced the detention of 120 people in solitary confinement of which have been judged only 29 and condemned by definitive judgement 19. A detailed report[1] of the UN Special Rapporteur on Human Rights and Counter-Terrorism, Martin Scheinin, identify and describe the deficiencies of summary process 20/2004 CCI 6 (Central Court of Instruction number 6) of the “Audiencia Nacional”, which is the process about 11th-M.

            What enable us to enter into a substantive discussion of interest is the second group of cases. That is to say, the prospective point of view of the legal system and the anticipation of criminal liability, which are characteristics of Criminal Law of the Enemy and they result specially interesting to check it in Special Part of Spanish Criminal Code (SCC), where they are introduced quietly[2]. First of all, we have to say that the prospective investigations are forbidden by the case law[3], and the Prosecution itself prohibited this in its Circular number 4/2013, which remembers that:

            “It must be assumed, in any case, that general investigations about the behaviour or activities of a person and prospective investigations are forbidden. It should not be started any investigation unless the notice of the commission of an specific event which have the features of a Criminal infraction.”

            However we can talk about abundant judicial activity referring to “sleeper terrorist cells”. With some variations, these are cases of groups of people who have been part of terrorist structures in the past in other countries, or who have had a relationship with these, and are now in Europe latently waiting to make a terrorist attack in the future. They would be a risky structure which has not even started any terrorist action. The great introducer of these types of prosecutions in the Spanish State was Baltasar Garzón through the Summary 35/2001, also known as “Dátil operation”. He was in charge of the investigation of the connections between some detainees and the 11th September attacks. If these cells have started the preparation –not the execution– of the crime will be prosecuted for conspiracy, according to article 17 SCC. However, conspiracy is basically nothing other than a kind of judgement of intentions, which is extremely difficult to be resolved by Courts. In the Spanish case, Supreme Court requires for conspiracy the development of “an accurate and specific activity within the material and corporeal reality, which reveals a clearly intention to produce a criminal event, without relying on simples conjectures or suppositions, so being mandatory for Courts to take into account the intentionality of prosecuted people[4]. Under conspiracy perspective, judgements have been, so far, acquittals, notwithstanding police reports, which established that detainees were on the verge of committing terrorists’ attacks. To give two Barcelonians’ examples, “Queixalada” and “Cantata[5] operations, both of them in relation with Pakistani community, they finalized in acquittal in the charge of conspiracy, but, paradoxically, in conviction for belonging to a terrorist organization as an “sleeper cell”.

            It is difficult to understand this approach, within a legal perspective. Spanish case law made an effort after 11th March attacks to establish an accurate determination of what behaviours could be considered as membership in a terrorist organization. Important steps in this area were the 11th March attacks and “Nova” operation judgements[6], so these Courts consider unpunishable the behaviours which consist in simply radical ideological or religious manifestations, so they require “going into action” in order to be criminally relevant. That is to say, this legal doctrine demand that those who defend these radical postulates have to execute some type of action directed to impose their ideology violently or through indiscriminate intimidation, characteristics that are typical of terrorism. So it demands for a verifiable and significant action which could prove the existence of actions aimed to achieve the objectives through terrorist methods or to cooperate with who is preparing to carry them out.

            Therefore, it is so difficult to understand why some judgements try to be respectful with these requirements going beyond the internal level of the subject, but they condemn for membership to terrorist organization despite referred actions are not a manifestation of conspiring to commit an specific and material terrorist act. Most probably, the criminal institution that best fits in this context is catchment, indoctrination or training of people for organizations which are outside the European context, behaviour that is punished as a collaboration act –not membership–, according to article 577.2 SCC, and, nowadays, this criminal institution constitutes the substratum of great part of police operations.

            For example, the summary process 4/2015 CCI 1, about Caront operation, which is at the present time pending trial, in processing judicial resolution establish the following events: “the acts could be considered as a crime of membership to terrorist organization or as a crime of collaboration with it because of the catchment and indoctrination of people with the aim of their incorporation to DAESH and the preparation of acts to commit terrorist attacks in Catalonia. […] In relation to A, he paid the travel of an individual (B, who seems to be dead in Syria), who was previously indoctrinated in order to his moving to Syria and his enlistment into DAESH, besides other type of payments. Regarding to C: phone-tappings in which he was talking to B when he was in Syria, covert agent and protected witness.

            Independently from evidentiary matter, the indoctrination submit some questions, being deeply controversial the issue of protected witnesses and convert agents. The SCC reform (LO 2/2015), which is the consequence of State Agreement against Jihadism, introduces correlatively the concepts of catchment, indoctrination and training. However Framework Decision 2008[7], which is supposed to be the source of inspiration of criminal reform, pivot on the concepts of provocation of crime (in similar terms of article 18 CP), catchment and training, but nothing in relation to indoctrination. Catchment is defined in Framework Decision as the request to other person to commit a crime of terrorism (maybe equally to the proposition of article 17.2 SCC) and training is defined as the instruction in the use of weapons or explosives. It is not any doubt that Framework Decision is a step forward to punishment of preparatory acts.

            But there is no explanation in the indoctrination figure. To indoctrinate in Spanish, “adoctrinar”, according to DRAE definition –which is the dictionary used by Suprem Court–, is the action of “impressing someone some ideas or beliefs”. This definition does not go beyond the described requirements of the Spanish case law and, consequently, we have to give more substance to this expression. On the one hand, we ask ourselves if it is a comparable action to the figure of inducement and, consequently, if it produce an overlapping with crime of inducement, established in the article 28 of the general part of Criminal Code. In these cases, to get a condemn it would be necessary to prove that the author is the only one who has convinced directly another person to enrol in a terrorist organization, what seems at least difficult when he have passed away or when he is in a third State, similar difficulties than the crime of inducing suicide of the article 143.1 SCC. On the other hand, there is also the possibility to understand “indoctrination” as a facilitation or supporting behaviour, in the context of the well-known anticipation of punishment, as we do with crimes against public health. Regarding to this hypothesis, it would be necessary to take into account that crime of membership to terrorist organization is also a crime of danger[8], therefore we will be linking anticipations of penal intervention, what make more difficult the justification of incrimination. What is clear is that paying a trip or phoning someone who is in Syria, as isolated aspects, are not indicators of the severity, nor is there causal relation regarding the decision of joining DAESH. It is also clear that indoctrinate is a verb that it is established only in the ideological or religious aspect of the crime.

            Maybe, if we are honest, incrimination of danger in these cases is related with a criminal-policy assessment, which have been constructed from the Criminal Law of the Author. Investigators think that who is in Europe and in contact with terrorist structures of Syria is a dangerous element not that much for Syria –which is not so relevant for European investigator– than for committing terrorist acts in Europe. In the referred summary process, the court considers acts of indoctrination of people in order to convince them to join DAESH in Syria and also it considers probable attacks in Catalonia. Despite this, the real core of imputation is related to Syria, Catalan reference is only a danger presumption which is established from the connection of these people with Catalonia. Because of this, later it is so difficult to particularize terrorist acts and prosecutions for conspiracy are useless because protected legal assets are so far from here.

            This reflection, obviously, is limited for those who live here. There is no doubt, and it seems that reality is aimed to remember us in Brussels, just a few weeks ago, that those who have been in Syria fighting in DAESH, in his return to Europe, they can constitute a serious hazard. But the question is: Is that danger equivalent and of the same size for those who are in this ideological postulates, regardless if they are here or there? And, should has the response of the legal system the same character? The more Criminal Law of Author the legal system has, the more there is security measure as a State reaction and also the less there is culpability principle. The principle of responsibility for own acts give up in front of the Criminal Law of the Enemy: it is not so important what you do as much as you are, a source of future dangerous acts[9].

            If there is a field where all these fears are taking relevance, it is in the so-called cyber-terrorism and in the diffusion of DAESH messages. In a recent police operation in Catalonia, the December of 2015, (DP 128/2014 CCI 6) some young people were detained because of diffusing official communications of DAESH and multimedia tutorials for constructing explosives, so criminal system assumes that they have been indoctrinated from Syria through the Internet. Also, presumably, they have been encouraging to commit terrorist attacks and justifying jihadist actions. Detention and imprisonment was justified by considering this acts as membership in a terrorist organization.

            The issue of DAESH broadcasting videos accompanied of the encouragement to commit terrorist acts have been treated from different perspectives in some recent judgements of “Audiencia Nacional”. For example, there is the librarian of Al Qaida judgement[10], which suppose a conviction to eight years into prison for membership in the terrorist organization Al Ansar Muyahidin. This organization have never commit any terrorist attack in Europe and it is not included in the UN and EU lists of terrorist organizations. Case particularity is that the attributed behaviour consists in an intervention, during a large period of time, in Internet forums and also sharing links of diffusion of Salafist ideas and manufacturing of explosives’ handbooks. In front of the processed allegation the absence of relation between propaganda and any terrorist attack, the Court established that it is enough to “catch new members, train them and support the existing ones ideologically” to be considered as a member of the terrorist organization.

            Thereby, the crime of membership in terrorist organization limits are now unassailable. In February of 2015 there were more detentions, in this case in the context of the Preliminary Diligences 21/2014 CCI 1, they supposed for a 21 years old man entering to prison because of “consuming terrorist contents from the Internet about jihadism, posting to his Facebook profile jihadist materials […] volunteering to participate in a television report in order to explain his activities as a sympathiser of Islamic State in an occidental society[11]. The same young person was set free in March of 2016 for considering now these facts as a crime of glorifying and justification of terrorism (article 578 SCC).

            The Prosecutor have focused on the “jihad speech” and this is sometimes a kind of legal oxymoron. Without having space enough to deal with this controversial crime of article 578 SCC[12], we must remember that there are three types of terrorist justification infringements[13]: 1) The retrospective mode, which is related to a post-crime behaviour linked with a committed crime, this infringement is unpunishable because it does not affect protected legal assets nor justice administration. 2) The actual model, related to an act that suppose the symbolic negation of the norm because of its reaffirmation of the crime and, thereby, it is constituted as an autonomous unjustness in the scope of public order. 3) The prospective model as a preparatory action of future crimes upon it really suppose an incitement of committing specific crimes. This third model is contained in the institution of provocation of article 18 SCC, otherwise exaltation crime, which is not linked to the penalty of the exalted crime, is a clear example of the actual model.

            Legal indeterminacy in dealing with this aspects, according to the given examples, shows the fact that the incrimination of cybernetic jihadist support has little to do with specific criminal actions and terrorists. Otherwise, it is related with the fight against an unknown enemy, whom we consider him in the otherness of occidental society and culture. But, often, the unfinishable list of sheiks, mullahs and other fanatics, those who appear in cyber-jihadist videos, is not linked with his identity or his political or religious adscription. Nor does our knowledge comprises the associative adscription of those who had committed the terrorist attacks in Europe. We only know that they were Muslims and radicals, some little things we know and it does not matter. In this sense, criminal process has lost his old hope of being useful to discover the Truth and it is just limited to data and understandable names compilation, what is useful only to strengthen our orientalism and to feed our islamophobia. The Prosecutor knows that this situation is located in a dangerous position. The spanish General Prosecutor’s 2015 annual report says:

            “Probably, antiterrorist policy, which is founded on a preventive and anticipated response and which has been able to minimize the risks of terrorist attacks, requires more sacrifices because of the role that the new communication tools are playing in the development of jihadist terrorism, but judicial system should take an extra effort to preserve guarantees when Courts are enforcing this new legal rules, which has been subject of criticism because of his adversely affecting and criminalizing strategy for citizens’ rights and freedoms.[14]

            Under the perspective of the proposed analysis, there is no doubt that the actual judicial response to jihadism is based on the Criminal Law of the Enemy. There is a weakness of procedural guarantees and there is also a disproportion on penalties –as it occurs in the analysed figure of indoctrination–. Because the anticipation of punishment is not considered in penalty modulation and most of judicial work is on the scope of preparatory acts, thereby it is done in anticipation of punishment sphere. This obsession in the matter of provocation is starting to be a little bit dishonest. The provocation institution of article 18 SCC punish the incitement of committing an actual crime. In fact, cyber-jihadism diffuse a lot of literature which encourages to commit terrorist acts, but we are losing ourselves in complacency if we think that the criminal beliefs of these young people is due to internet videos. Are we willing to reveal the underlying causes of their decision to enlist in terrorism?

            A few months ago, a young man of Vilanova i la Geltrú (Catalonia), son of immigrants, moves to Syria with the intention to fight in DAESH. When he was interviewed, he explained that the origin of his decision was the injustice of Xacal operation, operation that had taken place in his village in 2006. In this operation, 20 people was detained and 5 of them were convicted by Audiencia Nacional. Suprem Court, later, absolve them in a judgement that highlight the existence of tortures during de detention in the police stations of Guardia Civil.

            Someone might say that this legal analysis exercise could finish with a discussion between supporters and detractors of the Criminal Law of the Enemy. The right thing is that, finally, this discussion about Law and guarantees is the only space where we can situate general and specific prevention against jihadism, do not led the criminal law be a part of the problem, not the solution.


[1]Report A/HRC/10/3/Add.2

[2] CANCIO MELIÀ, Manuel, Los delitos de terrorismo: estructura típica e injusto. Madrid 2010, p. 20

[3] STC 49/1999 and STEDH Case Klauss against Germany (1978) p. 51

[4] STS 556/2006, 31st May

[5] SAN 1ª 28th May 2007 and SAN 1ª 11th December 2009 / STS 29th December 2010

[6] STS 18th July 2008 and STS 7th October 2008

[7] Framework Decision 2008/919/JAI of the Council 28th November 2008

[8] LLOVET ANGLÍ, Mariona, Derecho penal del terrorismo Madrid 2010, p.209

[9] LLOVET ANGLÍ, Mariona, id. p. 224

[10] SAN Sª4ª 21/2014 29th May and STS 789/2014 2nd December

[11]Police report, page 2087

[12] CANCIO MELIÁ, Manuel, id. p. 285

[13] SILVA SÁNCHEZ, Jesús-María, El nuevo código penal: cinco cuestiones fundamentales 1997 p. 154

[14]Informe FGE 2015 p. 213

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