Clara Eugenia Bayarri García was in charge of showing disagreement with the judgment, and the jury was composed of Ángel Hurtado Adrián (rapporteur) and Julio de Diego López. What has been known as the case of the Herriko Tabernas has been divided into two main sections: one, the so-called “institutional front of ETA” and the other, that of the “financial structure”. Twenty people have been sentenced to prison sentences – a total of 19 and a half years – (see box at the end of the article) for membership or cooperation with ETA. Basically, the judgment considers that HB, EH and Batasuna were parties and institutions of the structure of ETA and, therefore, those charged in them are of ETA or collaborators. In the second chapter, confiscation of the assets of the Herriko Tabernas 103, which are part of the financial structure of ETA, has been ordered.

Bayarri clearly and forcefully expresses his discrepancies with the judgment, according to the same source. One, because in the actions of the defendants there is no crime that can be classified as terrorist, since the actions of the defendants prosecuted do not fall within the forms of action that the Penal Code defines as a crime. Two, there is no other judgment or sufficient evidence to demonstrate that HB, EH and Batasuna have had terrorist activity and are therefore ETA; although the political activity of these parties is contrary to the Constitution, it was done in the terms that the Constitution endorses. There is also insufficient evidence that the defendants are from ETA, and there is a definitive unfounded leap: Since they are from HB, EH and Batasuna, they are from ETA. As for the three Herriko Tabernas, it is considered proven that they were HB, but that does not mean that they are ETA financing instruments, or at least has not been tested in the judgment.

The five consequences of the judgment

Bayarri’s discrepancies are firmly founded and reading his main conclusions many might think that the magistrate is a member of the jury or lawyer of the defendants:

1.“The HB and its successors cannot be judged in this procedure, because their legal representatives have not been called upon to defend them (…) The actions of the institutions were absolutely political, in the public space and only with the political means (…) ETA did have an interest in sucking them and controlling them, but – in addition to sharing their objectives – no concrete organic relationship with ETA has been demonstrated.”

2nd“Based on the thesis of ‘double militancy’, the majority judgment makes very extensive use of the concepts of terrorism and terrorist organization, that is, that the entire Abertzale left is ETA or is controlled by it (…) The inferences used for this are not decisive at all.”

3.“The activity of HB and its descendants is not suitable either to revolutionize the constitutional order or to influence public peace (…). In this case we refer to the declarations of the political rights recognized in the Constitution.”

4. “The equalization of the majority judgment seriously jeopardizes the principle of proportionality of the criminal response.”

Judgments not taken into account

Bayarri, in addition to asking for the acquittal and saying that there is no evidence, states in a particular 100-page vote that the majority of the court does not take into account data and documents that have been clearly exclaimed and that have appeared in the oral hearing. Several examples are given:

– The name of the defendants. From the testimony of police officer number 19242 of his expert report: “Your words make it clear that in the documentation that ETA has been seized of its political apparatus, no reproach or reference has been found for its names.”

– There are no documents. Both the reports of the Ertzaintza and the ICU (Intelligence Services of the National Police) of 7 August 2006 denied that HB was related to ETA. The ICU says: “There are no known documents linking the National Bureau to ETA”).

– They are hypotheses. The ICU report of November 18, 2002, was testified by the police 19242, who in the trial stated that “it was nothing more than a working hypothesis, but then these hypotheses were not demonstrated, that the report was generic and that it was not of an expert nature”. If there had been accurate data, they would already have been in the proceedings of the case, but there were none.

“The sentence recognizes what happened there, but it must be borne in mind that those who are today accused were acquitted of paying tribute to [the armed organizations].”

– The political activity of the Abertzale left. “The examining magistrate published four orders (in January, February, April and June 2007) in which he made it clear that no activity was suspended on the left of Abertzale. What he says in February is noteworthy: ‘In this case it has not been demonstrated that ETA leads the entire Abertzale left... there are structures that do not follow ETA’s mandate’.

– Herriko tabernas. The police testified to the police report of April 3, 2008 to explain the relationship of each bar with the structures of ETA-KAS. “They said that this could not be proven because the bars ‘have not investigated individually’.” In general, the judge points out that there is not a single document linking the Herriko Tabernas with ETA-KAS, either in the Udaletxe document or in the debate in Herrikoa, below, which Bayarri believes shows the opposite.

Jewelry

Bayarri’s vote destroys from start to finish the sentence of its two members, while destroying the political legal vision of “everything is ETA” that the Spanish State has turned into an instrument of punishment. Here are other examples of his arguments:

– That HB, EH and Batasuna are at ETA’s command. “None of the allegations made in the case have requested the declaration of these three parties as a terrorist association (...) was explained by a defense attorney in the oral case and this ruling I do not share makes a tremendous effort to argue against this lack of conditions, simply by saying that Herri Batasuna agreed to become an ETA instrument.”

- Karmelo Landa. The judgment uses the document called Portu, in which ETA officials are asked to “ask Landa for a greater commitment”. That is why the judgment concluded that if a greater commitment was called for, this meant that there was less commitment. Bayarri, on the other hand, says that “this cannot be done, especially because the defendant refuses to have ever participated in ETA (...) even more, the other point of view of that document is not taken into account, that Karmelo Landa had no commitment to ETA (...) yes, that he had infiltrated ETA in HB, and that they did not require responsibility (....)

– After illegalising Batasuna by analysing the political activity of Joseba Permach (the same can be said of other defendants): “It is not possible to say that some activities are the exercise of the rights of association, assembly or demonstration and freedom of expression, and that for others it becomes a symptom of belonging to a terrorist organization.” And it says the following of two indications of participation used in the case of Permach. One, during a demonstration against the legalisation of Batasuna, on 27 August 2004: “It is not possible for him that this is a crime, when it is not for the organizers, and they have not been prosecuted.” Another, who participated in the ceremony of the creation of the Udalbiltza held at the Euskalduna Palace in Bilbao in 1999. Bayarri: “Nothing that is said there can be seen as ETA’s support, because the events that take place there are judged and acquitted.”

It will be the Supreme Court that decides now on the appeal to be brought to the judgment and, again, the political impetus will be key to that. In addition, the fact that one in three judges has cast a separate vote may be taken into account by the Supreme Court. It should.