Amagoia Escudero, who led the round table, recalled that the precedent of this debate was another round table; Women*, prison, custody: former inmates explained why prison is even more oppressive for women, and that the solution is to abolish prison (chronicle of that round table we brought in this report). This has brought the feminist groups of Lursal the second topic to be addressed: How do we work justice? What path to take in the face of attacks?

In this video recorded by Lurgar you can see the full colloquium:

First, Escudero asked them about the penitentiary policy, and all showed their opposition to it, because it does not meet the objectives of “educating man” and “reinsertion” imposed by law. Biurrun showed his fundamental contradiction, “it is almost impossible to educate and socialize a person without freedom. Freedom is precisely the dignity and the core of the person. Psychologists say that from the age of 15 in jail the person is demobilized and loses his dignity because he has had to live without freedom and has no capacity to decide anything.”

Ugarte explained that the system is increasingly punitive: “The changes in the Penal Code are made ‘at the top’, depending on news and social pressure. There is no quiet legislation, thinking about how to face the challenges... Has anything really dramatic happened in Cuenca? There's a change of law. Consequently, the system is becoming more and more punitive. And it also has no imagination: most of the penalties are related to prison, because there is no other kind of punishment or legislation aimed at mischief.” After closing the door, he explained that there is complete impunity for violations of fundamental rights occurring inside the prison: “From all this we should have a paused debate, people should know what the administration of justice is and know very well what happens in prisons.”

Biurrun replied: “I don’t think society cares very much about the prison situation and the people in prisons. I know that in this country there is a particular concern for people in prison, but above all for some prisoners, not for all. I turn away from salvation, because he has always worked with all the prisoners. But let's not confuse one thing with another. Many prey don’t remember, worry and worry.” Ugarte, when his turn came, went to Biurrun: “It is very unfair that Biurrun should say so, because in February 2019, EH Bildu presented to Parliament a proposal of 100 measures for the transfer of prisons. What we say is not related to the issue of political prisoners.” Later, Biurrun took advantage of his speech to answer Ugarte: “The unjust I don’t know why he said it. I have said that this society has been particularly concerned about prisoners and not about all prisoners. I do not know which children of Tolosa have been imprisoned for the last 40 years, apart from the prisoners of ETA, because I know them and it is all very well. I too will reproach myself, that only a few prisoners have been concerned. I think that is undeniable. And it is true that in recent years there has been another awareness.”

French questioned the legitimacy of prisons: “Our view of prison in the complaint is that it is an institution that should disappear and has no other legitimacy than that given to it by the institutions. As a society and as an individual, we should not allow prisons to continue on our behalf. Prisons are totalitarian spaces where human rights are systematically violated. If there are enough arguments, because there should systematically be no area where rights are violated. Moreover, if prison did not harm rights, we believe it would not be legitimate, because deprivation of liberty is a punishment and inhuman and degrading treatment that directly attends to the dignity of the person.” He also questioned the reinsertion function: “How can you reintegrate from exclusion? And also, how can one intend the social reintegration of a person into the society that excludes them?” Instead of putting the emphasis on “crime,” he argued that it needs to be put into solving the underlying social conflicts: “If we analyze the profile of people in prison, it can be concluded that prison and the entire penal system are aimed at people: criminal policy, police, tax and judicial looks are directed at specific groups, and it is said that these people have done something that is wrong, a ‘crime’. Language has a lot of strength and if we call one thing ‘crime’ it seems much more serious, something that is from others and that we have to fight against it and that we have to punish. But we forget or hide the reality behind crime: social conflicts. Nothing else behind crime. Most incarcerated people are serving sentences for something that has to do with a social conflict as basic and as simple as poverty and social inequalities. At this round table, between 14% and 15% of incarcerated people are condemned for being related to the following social conflicts: machismo, gender violence and patriarchy in general. It is very important for us to put our eye on the conflict that is at the base, and not so much on the word “crime,” which is what you want you to see the systems to dazzle the rest. From there, we are committed to abolishing the culture of punishment, because we understand that maintaining an absolutely patriarchal criminal system is not appropriate to respond to any problem, but much less to respond to structural violence against women. For us, prison is not legitimate for any person or for any crime.”

Prison, the star punishment

Ugarte reminded you of the change made by President Aznar: “In 2003 Aznar undertook major reforms in the Penal Code, following the agenda of the right, to make it difficult to leave prison and stay in an open regime of difficulty. The closed regimen, called the second grade, became common.”

According to Biurrun, “in the Penal Code of 1995 prison sentences are reserved for serious crimes. Minor crimes are not punishable by imprisonment, but by other penalties such as fines, works for society… But what is happening in the Spanish State is that some of the less serious crimes are being punished by imprisonment. For example, the case of Pablo Hasélen. Things are often done badly, rules are very badly violated, other people’s rights are violated and others are greatly harmed. But to pay for it, to alleviate the damage caused, to alleviate it, is there no other way?”

French also confirms that the star punishment in the Spanish Penal Code is imprisonment: “The entire Penal Code is fixed so that the person ends up in jail as a last step. There are alternative penalties to jail, but there are basically two: fines and community work. When we have in our heads the imaginary of a rapist, or a stalker sex, or serious crimes of this kind, they usually go directly to jail. It is important to remember this, because sometimes it seems that the Penal Code is soft and not so at all, since 1995 reforms have been made and it has always been to tighten up. We have a harsh Penal Code, which has priority and the punishment that most imposes is imprisonment.” He explained that the suspension of convictions is also there: “That is, a person can be sentenced to prison, but if he fulfils a number of requirements he may not enter prison on the condition of having attitudes for a while. But this is not an alternative to jail, because jail is there. In some cases of sexual crime or gender-based violence there is the possibility of suspending the prison sentence for that person and in these cases the system is aimed at two conditions being met: the reparation of the victim's harm and the imposition of protective measures against the victim, such as removal orders, communication bans, etc. And, on the other hand, there is the possibility of being forced to undergo treatments related to gender or sexual violence”.

In connection with these treatments, French denounced the shortage of programmes in prisons: “There are basically two programs in jail: one for sexual assailants and the other for gender violence. Gender violence is implemented in almost all prisons, but according to the 2017 data I have from the aggressor sexes, it was only established in 29 of the 69 prisons in the Spanish state. For example, in the Pamplona prison there are no courses of aggressive sex, when this city has been so paradigmatic, not only for the case of Manada, but also for the case of Nagore Laffage. The program of aggressive sex has a duration of two years and the penitentiary institution itself says that in order for people to participate in it they have to be close to parole, that is, at 3/4 of the sentence. Therefore, it is not a job that the administration itself does from the very beginning. When we ask for the jail, we are asking that we practically do not work to reinsert ourselves, and what we do is enter into the person, close the door, lock the key and wait for it to leave as long as possible.”

Biurrun questioned the legitimacy of the prison's educational function: “We should ask ourselves whether the State has the right to educate an adult person. And what should I be educated about? I believe that human rights should be at the core and content of that education: to know them, to know them, that one has and the others too, and that they must be respected. And it's not a simple subject, because the state can make ideological control of people in prison. And it can decide what thoughts prisoners should have to decide that ‘well’ is educated or ‘capable’ of reinserting themselves.”

The court has more pain

Ugarte explained that judicial proceedings are very long and painful for both parties: the defendant and the victim. “There is in itself a law on the protection of victims, but under no circumstances are their rights guaranteed. This week I was touched by a girl, who has been sexually abused, who has had to explain for the fourth time what her father was doing to her with very little age. It's an example, but it's common. The innocent cannot, of course, be punished. But how can this be done without harming the victims? In the end, you end up telling many women to think twice if they are going to enter the administration of justice, because that will bring them a re-victimization, because for them it will be very hard, because in the courts the conceptions of gender violence or violence are not as broad and modern as those we have in society... once you cross the court door, it is as if you were in the past. There is often no evidence, and there you go into the war of credibility, with what that means in a case like this.”

Restorative justice and anti-punitivism

Biurrune explained what restorative justice is, but clarified that the system is an internal way: “In restorative justice what is intended is to establish a dialogue between the victim and the victim and between them a reparation. But that does not prevent the progress of the judicial system, although it can soften its response. But what is being sought is something else, and many victims say that it has been very well for them to enter such a different system.” Maixabel Lasa took as an example: “He has been the symbol of the favors that restorative justice offers us. He says the peace and quiet of interviewing and meeting Luis Carrasco and Ibon Etxezarreta, who murdered her husband, their feelings, their problems, their needs, etc. Carrasco and Etxezarreta have been asked to recognize what they have done and to be willing to pay, heal, repair. These are the foundations of restorative justice: to be willing to recognize and resolve.” Biurrune explained the direction he sees in moving forward in the future: “Recognition of the truth, justice and payment or reparation for all crimes has been a step forward. I believe that both on a personal level and for any society are a good starting point. The question is what kind of payment, what kind of reparation is made. And for that it is clear that prisons are worth nothing.”

The lack of knowledge and curiosity about anti-punitivism, whether it is for all crimes or only for minor ones, became apparent throughout the table... French took a space to explain the bases of: “Anti-punitivism is not a system, it is a philosophy that works to end the conflict resolution imposed by the institutions for there to be a criminal process and a place of punishment for serious crimes. What arises from anti-punitivism is a change of paradigm, philosophy and culture, so that we approach social conflicts from other logics. In order for us to realize that what is behind crimes is not the need to punish that person, but to satisfy the needs that as a society lead us to commit these crimes. This is what we need to apply when we talk about crimes that we all like very much: gender violence, sexual assault… What is behind is not just a person who has committed a crime, there is much more. We also point out that with people who commit crimes, this problem cannot be addressed from the penal code, from the judicial process and from the penalties. According to the 2019 Violence against Women Macroinkesta, one in two women has suffered any kind of gender-based violence throughout their lives. But 90% have not come to court. The main reasons for not denouncing are shame, fear, non-denunciation, which know that the solutions they are going to give them are not going to satisfy them... but the consequence is that in reality there is a very large space that does not give a punitive response and that there is no official punitivism”.

Frenchman responded to Biurrun by explaining how reparative justice looks from punitivism: “That the dialogues between victims and victimizers to which you have referred are obviously reassuring. From anti-punitivism, we encourage that the female victim is the part that must be protected and that care must be taken from her. It provides great empowerment to the victim and to society. But this must not mean the automatic acceptance of the other parties, the need to establish oneself… what is encouraged is dialogue and, ultimately, that the victim can be supplemented without the need for another person to complete it, that is, that he does not need the recognition and reparation of the other party in order to be able to complete the same. And that can be supplemented to go through a judicial process without having to live the trick, because that will do much more harm than it already has.” He proposed the following alternatives: “Restorative justice is, of course, an alternative. But not as it is being applied in Spain: today it is a tool at the service of the criminal process. For us, genuine restorative justice is the one that speaks of alternative solutions to conflicts. That they really create spaces for people to come to them to solve our conflicts, not to report a crime, which is a court. That there is a space in which I can say that I have had this conflict, yes, the one in the penal code, but that I do not want to fix it, but in another space.” He explained that these spaces already exist and are expanding, but that the State does not encourage this way of resolving conflicts: “What interests the State is that criminal proceedings, police and prisons continue to exist.” He ended with feminism: “Beware of the fashionable idea that justice has to be a feminist. We depart from these criminal, Christian, Machistan and patriarchal logics, which is constantly dedicated to seeking ‘justice’. What is justice? Everyone will have our own definition. So, feminist justice? No, but anti-punitive feminism.”

Ugarte said that we have to take into account “the balance between what we would like and what we can achieve”: “Would we like them not to be rapists or anyone to jail? Well, yeah. Would there be effective methods for this rapist not to be raped again? It is important to have a non-punitive system, but it is also important to ensure security in society. And I don't see that women live peacefully. We say very nice things, but then when we land in reality to see what we do. I think there are graduations in cases. We have to see what the context is and what the solution is to each one. It is not worth the same recipe for everyone.”

Item Transfers

Ugarte replied to the question “what is going to come with the prison transfer?”: “Three things: on the one hand, the prisoners are going to be transferred. Those currently present in the CAPV would become prisoners of CAPV prison surveillance. At the moment in the CAPV there are about 1,300 prisoners and another 200 in Navarra. There are another 800 CAPV-based prisoners in other State prisons. In theory, if a prison transfer occurs, these prisoners should also be able to go to CAPV prisons. The second thing that will be transferred is the officials. Those who are now State officials would become CAV officials. And thirdly, infrastructure. The infrastructure must be transferred with a sum of money, since, except for Zaballa, the prisons we are going to receive are totally osolete and works should be carried out... There is also Zubieta’s project, because you want to close Martutene…”. He explained that the execution of the transfer will take time and that within a couple of years it may be fully transferred. But then, what's not going to change? “That people will go to prison in accordance with the Spanish Penal Code. And that the applicable law will be Spanish penitentiary. In the case of political prisoners, the executing body of the National High Court would follow these prison sentences. And the prison surveillance court would not be from the CAV, but from Madrid. Because in order to change all of this, we would have to change the legislation in the Spanish Congress and in the Senate.” So, is there room for change? In the words of Ugarte: “Yes, the margin is very large in terms of length of sentence and prison conditions, and this second is the most interesting aspect.”

EH Bildu set out several points in a proposal for 100 measures in the transfer of prisons: “We have made a forward-looking approach to minimizing the prison sentence, to make that prison sentence as short as possible, and to ensure that the prison is held in the best possible conditions and is complied with as soon as possible on an open basis: In order to gain access to an open regime in Spain, that is to say to the third grade, the sanction has already to be very advanced. What we are proposing is that what should be common is an open regime: it should be usual to have a program, comply with the sanction with the community, greater permeability, greater transparency, greater public control… For example, in Catalonia prison is very controlled by Parliament and by the social partners, and they have removed the measure from isolation or have greatly reduced the application with social movements”. Ugarte relies on the social movements of the Basque Country: “There are a lot of social movements here who are concerned about this issue and who could be more transparent, who could have access to people’s inspection, who could have other policies and that the public power, the government and the agents who are going to take the prison competition, the families, the prisoners have another way of relating. Guaranteeing the health conditions and education of people, valuing with companies how to realize socio-occupational itineraries, how to relate with families…”. From the infrastructural point of view, he set as an example the prisons of Canadian women, on which the Tesina carried out: “In Canada, a feminist lobby was formed, self-organized in houses of women serving federal penalties, with daily visits, with boys and girls longer... we have to explore this kind of thing and that’s why we set out the 100 measures. And the truth is that, having heard the criteria that exist on the part of the government, I think there can be a lot of consensus to achieve such measures, also on the part of the institutions”. Biurrune gave a name: “What the Basque Government has appointed to work on the transfer of prisons is Jaime Tapia Parreño, a member of the Judges for Democracy group. He has a great experience and a special vision that gives me hope.”

French insisted on the need to work improvements in prisons “but for abolition, not to be perpetuated. But we cannot deny that it exists and, therefore, we demand from anti-punitivism respect for the rights of prisoners while prisons are in place. In 2017 we presented in Navarre a report on the need to acquire prison skills. These are things that can be done and do not contradict anti-punitivism. One thing is to propose logics to work the way to where we want to go, but without forgetting that this institution exists and without forgetting the people who are in jail”.

In this separate text we gather the explanations of Ainhoa Narbaiza and Marta Luxán, members of Joxemi Zumalabe, about the experiences of the self-management groups that have organized themselves to work on the sexist attacks in the villages.