15 september 2024 (3) (ENGLISH) (opinion)

15 September 2024

 

Nico Krisch: “It is an unavoidable obligation of Spain to clarify whether Es-Satti is alive”

Interview with the professor of  international law, who has just filed a lawsuit with the ECHR against Spain for not having sufficiently investigated the attack of 17-A

Nico Krisch (Berlin, 1972) is an expert in international law who, in a discreet position, has helped former political prisoners and exiles to combat the repression of the Spanish state against the independence movement in international bodies, such as the UN Commission on Human Rights. The condemnation of this body in the Kingdom of Spain for the violation of the political rights of President Puigdemont is, in large part, his work. And now you have a new case in your hands, that of Javier Martínez, one of the victims of 17-A who feel abandoned by the silence of the Spanish state on fundamental aspects of those attacks that it has refused to investigate. Krisch, who is a professor of international law at the Graduate Institute of International and Development Studies in Geneva, has just filed a lawsuit by Martínez against Spain for this reason.

1. —How did you come across the case of Javier Martínez?

—In recent years we had spoken a lot about this case with my wife, Neus Torbisco-Casals, who knew Javier through her dedication as an activist lawyer, and with Jaume Alonso-Cuevillas and Agustí Carles, who were taking the case to the Spanish courts. We all agreed that it was a case that had to be taken to the ECHR if the resolutions of the Spanish courts were not satisfactory in recognizing the violations of rights by the state. And this year, when the options in Spain were finally exhausted, we returned to talk about strategies and approaches to effectively claim Javier's rights as a victim, which ultimately represents the rights of all victims of a chilling terrorist attack over which unexplained aspects loom. With Dr. Alejandro Chehtman, an Argentine professor expert in international criminal law, we have worked hard on the lawsuit against Spain that we have now presented to the Strasbourg court. 

2. —What surprised you most about this case at first glance?

—It is a very complex legal case. You have to look at everything – facts, applicable law and jurisprudential developments in the domestic sphere – in detail to identify what the main obstacles are in terms of responsibilities and rights violated, according to international law. But once you do that, you see that there are a whole series of elements that the Spanish courts do not even want to consider. And this lack of attention to key aspects of the case contrasts clearly with what is required by European and international law – which Spain has the obligation to comply with – in cases such as this, of a terrorist attack with fatalities.

3. —What is Spain obliged to do? 

—To investigate these cases thoroughly to understand the circumstances, determine responsibilities and repair the damage caused to the victims as far as possible. In our opinion, the Spanish state has not been diligent in fulfilling its obligations, and this negligence has caused serious damage to fundamental rights, especially the right to truth and to demand responsibility and specific reparations, despite the fact that the damage suffered by Javier is clearly irreparable from a moral point of view. When you investigate the entire procedure, it is clear that the Spanish courts, the investigating judge, the prosecutor, have simplified the scope of the investigation to avoid assessing aspects that they do not want to touch.

4. —Despite the fact that there have been people convicted for the attacks… 

—But there is a crucial part that is not investigated. This part affects, in particular, the involvement and fate of the main person in charge of the cell, Abdelbaki Es-Satti, the former imam of Ripoll, who ends up “on the periphery of the case,” in the words of the Spanish courts, because they assume without conclusive evidence that he is dead and refuse to investigate in depth his role and the specific connections with the state secret services.

5. —And the responsibility of the Spanish state has not been investigated.

—The CNI clearly had some knowledge of what the cell was doing. But the degree of knowledge, and the specific contact with the imam, have not been clarified because they were ruled out from the start of investigation – the judges say that it remains outside the scope of the procedure. The implication of this rejection is the unjustifiable reduction – illegal, ultimately, as we explained to the claim – of the scope of investigation, leaving unanswered the crucial question about the involvement and responsibility of the state. This question is certainly important for the victims' families and also for society as a whole, insofar as a terrorist attack of this nature aims to terrify an entire society. And the direct victims and the public have the right to know the specific circumstances, whether anything could have been done to prevent the violation of the most fundamental right of all, which is the right to life, etc. We remember that individual and social damage is caused by action and omission. Certain omissions – for example, of communications between security forces – can have lethal results. Also, as we affirm and prove in the appeal, the right to truth is becoming more and more consolidated jurisprudentially in international human rights law. In a democratic society, secrets and reasons of state cannot legitimize the violation of fundamental human rights such as the right to life and the right to a fair trial.

6. —The attacks themselves, in Barcelona's Rambla and in Cambrils, were not investigated, with the argument that the perpetrators were dead. 

—Yes, this is very serious, because the right to life in the European Convention on Human Rights imposes the obligation on the state to fully investigate, in a comprehensive manner, all the facts and circumstances that led to the death. Therefore, we can conclude that this death, that of Xavi, Javier's son, and the death of all the other victims of the attack, have not been investigated. They are investigating other things, relating to the membership of some individuals in a terrorist cell and the possession and manufacture of explosives. It is understood that you cannot prosecute those who directly committed the attacks in Barcelona and Cambrils, because they are dead, but this cannot exempt the state from the obligation to investigate the specific circumstances surrounding these crimes, including the diligence of state agents in complying with international legal obligations in the area of ​​human rights. The investigating judge has to continue investigating even in cases where all the material authors of an attack have died, and even more so if there are suspicions of a potential involvement of the state itself, indirectly, by omission or negligence. We do not know, it is clear, but we have the right – legal, not just moral – to know, as victims and as a society.

7. —The point is that there are indications that at least allow us to question the first version or the official version about Es-Satti, but this is not being investigated.

—Exactly, and this investigation –which Javier’s lawyers repeatedly demand due to an accumulation of evidence and more than reasonable indications– is simply denied without any valid justification: the argument that it is a peripheral issue to the case does not hold up anywhere. It implies that, de facto, the attacks themselves are not being investigated, nor is the role and fate of Es-Satti, as leader of the terrorist cell and mastermind of the attacks. His case is very surprising.

8. —Why?

—Because when you analyse the case in detail, all the hundreds of documents and evidence produced, you realise that there are so many doubts about the facts that underpin the standard account of the Spanish Court, and which the Supreme Court then reproduces, that in a certain way they arbitrarily restrict the scope of what they want to know, without taking into consideration any argument or evidence that questions what had been assumed as legal truth (what had been taken as proven). All these reasonable doubts, according to the judges, cannot be investigated, nor do they admit further evidence, not even questions about the probative value of the existing objective evidence, especially with the DNA evidence obtained in Morocco, which is the main basis for establishing Es-Satti's death.

9. —There is no conclusive evidence of his death?

—In our opinion, no. The first three elements they use to prove his death are too circumstantial. The fact that Es-Satti was in the house in Alcanar when the explosion occurred on August 16 does not prove his death, because there are many controversial aspects: there could have been more people in the house, and there are witnesses who claimed that there was at least one more person. We do not know who it was, or if there really was anyone else, but it could be the dead person. The DNA test they did right after on a Coca-Cola can and on a djellaba they found in Es-Satti's apartment cannot be interpreted as conclusive. The van that contained the can was used by other members of the cell, and was found four days after the explosion in another place with fingerprints of eight people. Precisely because of these doubts, they did this #DNA test in Morocco.

10. —To Es-Satti's relatives.

—Yes, this is what the procedure calls for. But neither the circumstances nor the details of this test are well known, because the only thing that reached the Spanish Court in the end was a report from some Moroccan experts that established the genetic correspondence. But this is not what the judge requested with the rogatory commission: he wanted the genetic material to be sent to Madrid to carry out the analysis with the corresponding material that was found after the explosion. This was not done. The details of the genetic material were not included in the report, and for this reason it cannot be confirmed that the genetic material they obtained there corresponded to what they found after the explosion. The experts who prepared this report also did not appear at the trial before the Spanish Court; and, as a result, Javier's lawyers were unable to raise doubts about the bases of the report, which do not meet the required international standards, as we stated in the application to the ECHR

11. —It seems that there was a great rush to establish an official account like this.

—Yes, prematurely. In February 2018, the judge in Amposta declared Es-Satti dead, issued a certificate and ordered the burial of the remains. But at that time there were few elements to certify in a justified manner that the remains found were really Es-Satti's – the report from Morocco had not even arrived and, therefore, the judge's conclusion was hasty.

12. —To question this official version, Javier Martínez's lawyers have been accused more than once of feeding conspiracy theories.

—Yes, and it is very significant because this argument, at first glance, when you do not know the details of the case, may seem plausible but in this case it is used to re-victimize the plaintiff, who, in fact, the only objective he pursues is to know the truth of the circumstances surrounding the death of his son and demand the corresponding responsibilities. When you look at the case in detail, there are voices that there is no conspiracy theory, but very rational doubts about the version that was accepted about Es-Satti's death and also about the dimension of the case that remains judicially unexplored. But this accusation of conspiracy theory is typical as a response when you do not have good arguments to answer these reasonable doubts with foundations and you categorically refuse to continue investigating.

13. —You do not say that Es-Satti is alive, but that with the evidence that there is, it cannot be proven that he is dead.

—Exactly. We cannot know if he is alive or dead. The investigation is short-lived and assumes without sufficient evidence a legal truth that the victim in this case has solid reasons to question or doubt. That is why the Spanish courts would have to investigate more about what happened to him, who was the dead [from Alcanar] in the end, because it could have been someone else. If this were the case, and there was a possibility that fundido is alive, the state would have to do everything possible to find him, because he is clearly the main author of the preparations and the crimes that the other members of this cell were accused of. This arbitrary restriction of the procedure, the denial of the evidence requested by Javier's lawyers, etc., is one of the legal foundations of the claim for violation of fundamental rights. The state has tools to investigate more deeply.

14. —For example?

—Order more tests, repeat with more guarantees the DNA test on Es-Satti's relatives in Morocco, for example, to clarify these doubts and comply with international standards in this matter. We do not suggest that he be alive; the only thing that the lawsuit to the European Court of Human Rights says is that it is the unavoidable obligation of the Spanish state to clarify this fundamental point to overcome the reasonable doubts expressed.

15, —The responsibility of the state, and specifically that of the intelligence service, has not been investigated either.

—Yes, the suspicion in a certain way is that Es-Satti is not being investigated further to avoid having to also investigate his link with the secret services. We know objectively that there were some relations between Es-Satti and the CNI; that there were visits in the prison, when it was closed between 2011 and 2014; telephone conversations he had from Belgium, where there is a witness who says that he himself said that he spoke with the Spanish secret service; There are even documents showing that the CNI was closely following the cell's actions until just a few days before the explosion. And then there are those statements by Commissioner Villarejo to the Spanish Court in 2022, which also indicate that there was some knowledge or involvement on the part of the CNI in these events. Our claim says nothing about the foundations or veracity of these statements, because we do not know. But according to the European Court of Human Rights, it is not the victims who have to prove the involvement of the state; it is the state itself that has to create an independent mechanism to investigate it if there are indications.

16. —The state could tell you that investigating it could affect state security.

—This is potentially an important argument. But, according to the jurisprudence of the Strasbourg Court and other international human rights courts, reasons of national security cannot be used to deny an investigation or to find out the responsibilities of state and non-state actors in violations of fundamental human rights, such as the right to life. Even if there are reasons of public security, the state has the obligation to ensure an effective and independent investigation, which is one of these human rights. This has been the case in cases of national security with a capital letter, such as in the cases of the CIA secret detention program. 

17. —In the case of the CIA flights?

—Yes, the #CIA flights from Macedonia and Poland that transported prisoners to Iraq and Afghanistan. They were cases with very important national security implications, clearly. And even so, the ECHR established that the authorities of Macedonia and Poland had to carry out an investigation that went to the bottom of what happened, what was involved and who was involved, with the aim of finding out who was responsible for these violations of human rights. Well, if that was the case in these cases, it is clearly the case, too, in this case that we have now. The state cannot claim that this is a matter of national security. If that were the case, human rights would always be conditional and would have no impact on the defense against authoritarian or repressive states. In fact, the Spanish courts do not say anything about national security, nor do they weigh this value against the individual rights of victims of terrorism. They are very sophisticated in this respect. They simply dismiss the issue as important in a way that we consider purely arbitrary.

18. —Are you asking for Spain to be condemned and forced to reopen the investigation?

—Yes, this is the objective. That Spain, once it has been confirmed that it has not fulfilled its obligation, reopens the investigation and includes the facts that have been excluded until now.

19. —For years you have helped the Catalan victims of repression to present claims to international bodies. What assessment can be made today of the real effectiveness of all these resources?

—The first thing we have to highlight is that we have won in almost all of these cases. Now, we must know that these mechanisms are not automatic in their effects, unlike in the procedures before national courts, where at least you can have the hope that they are complied with directly. With international courts or quasi-judicial institutions such as the UN Human Rights Committee, states clearly do not always do so, and there is no way to force them. But the ECHR enforces more of its rulings and there are also possibilities of imposing some sanctions. It is limited, but, in any case, it has been shown that these procedures have an effect on reputation and have a very important effect on other courts. For example, the courts that had to decide on the extradition of the exiles have this link. And an international consensus has emerged on the fact that the process carried out in Spain did not conform at all to the standards of the rule of law and human rights that apply to Europe. That is why all these procedures – on extradition, on the rights of MEPs in courts in other countries and also in the European Union – have failed from the Spanish point of view. There was a consensus forged in these United Nations bodies according to which there was a human rights problem. This created a lot of frustration for the Supreme Court, because it was unable to imprison the exiles.

20. —At the very least, has Spain's international reputation been damaged?

—Yes, clearly. If you talk here in Geneva with the special rapporteurs on freedom of expression and human rights, it is clear that this is now a fact for everyone. It is a very big doubt about the Spanish procedures against fundamental critics of the state. There is a reputational effect, and Spain has made efforts to counteract it politically, because they have been aware of the risk of losing the central cases of political prisoners in international legal instances. The partial reversal of the repressive strategy through pardons, for example, avoided this defeat in the legal field. But I think that it has not managed to rectify it, despite all the resources that have been put forward and the pragmatic and political conditions, especially from the government of Pedro Sánchez.

21. —Diplomatic resources? 

—Yes, trying to present Spain as a full democracy through global campaigns. The government of Pedro Sánchez has put forward many efforts, but clearly on a European scale this has not been rectified. And to the Council of Europe, to the United Nations, in Luxembourg, to the Court of Justice of the European Union, these doubts still exist and, unfortunately, it seems that they will remain for the defenders of fundamental rights and democracy. And the arbitrary action of the Spanish judges against the amnesty of President Puigdemont and other pro-independence leaders is only a confirmation of these serious problems that Spain has with human rights and with the promotion of a democratic, anti-authoritarian legal education and culture, which is a precondition for the effective guarantee of human rights and respect for the law, both domestic and international. Indirect, by omission or negligence. We do not know, it is clear, but we have the right – legal, not just moral – to know, as victims and as a society. 

Opinion:

Summarizing seven years of strange circumstances, of administrative neglect of the victims, of doubts and suspicions that a criminal sentence has not been able to fully clarify, of continuous problems in the procedures and paperwork, of deception by the competent administration in the matter… it is going to be very difficult to summarize in a written document.

But I will try.

Regarding the interview with Nico Krisch, I want to say that it is an interview that should have been done years ago with other lawyers… Jaume, Agustí, Antonio… could have said publicly many of the things that we have now been able to read. 

The lawyer says that “it is an unavoidable obligation of Spain to clarify whether Es-Satti is alive.”

Obviously it is true, totally true. We are talking about the person responsible for 16 murders and 345 official injuries (plus another 123 in the summary).

We are talking about someone who had more than proven dealings with the Spanish CNI.

We are talking about someone who could lead a life as a “double agent”, a quality that already existed in the Middle Ages.

We are talking about someone who knew how to use some “fully integrated” young people in Ripoll.

Fully integrated? That is where the lies begin…

We must remember what I have explained in this same blog and in numerous interviews since August 2017. There are numerous doubts that already arose in October 2018 in an indictment that does not include and identify even half of the victims that appear in the sentence of May 2021.

Who has searched for them, located them and advised them for years with minimal resources, and that is assuming that they have ever arrived? Except for the UAVAT (created after the attacks of August 2017) and the colleagues of the Association 11-M Affected by Terrorism, where were the associations, foundations, platforms and similar satellites to search for them, advise them and assist them?

Why did the Data Protection Act prevent such localization and subsequent advice, especially after the 2021 ruling?

Why does a Judge say in the ruling that “the victims have been the great forgotten” and absolutely nothing happens?

Why did no one resign after reading those words? I am not going to continue commenting (at least today) on the disastrous assistance that the vast majority of victims have received. There will be time to continue with that…

But let's continue with those doubts that ALL the victims I know (and there are more than 270) have raised about what happened in their attacks from August 16 to 21, 2017…

Why was the relationship between the Ripoll imam and the CNI not thoroughly investigated?

Why was the relationship in the Castellón prison not thoroughly investigated?

Why were the reasons why a person convicted of crimes against public health was not expelled from the country and returned to the country of his birth not thoroughly investigated?

Why were the reasons why a person convicted of crimes against public health could become the imam of a mosque in Ripoll not thoroughly investigated?

Why was the disappearance of some 120 butane cylinders not thoroughly investigated?

Why was the strange presence of someone fleeing at the time of the first explosion in Alcanar on the night of 16 August not investigated?

Why were the reasons for not complying with the legislation on dangerous materials dating from 2014 not thoroughly investigated?

Why has no one wanted to explain the reality of the monitoring and surveillance of the terrorists until a few hours before the incident?

Why has no one wanted to explain the reality of the monitoring and surveillance of the biological evidence transferred to Morocco?

Why did more than 20 senior political and police officials not go to the Commission of Inquiry of the Parliament of Catalonia under the surreal argument that "we are not obliged to go to a lower-ranking parliament"?

Why has the Commission of Inquiry of the Congress of Deputies of Madrid not yet been started? I sincerely believe that 16 murders and 345 official injuries (plus another 123 in the summary) deserve much more respect and that if the sentence of May 2021 itself says that the victims have the right to know the truth about what happened, why are those who do not allow that same truth to be known not investigated?

What steps have been taken by each of the countries that had victims among their fellow citizens, whom they are supposed to assist and represent?

We will continue to report.

I hope that in the near future I can provide more positive news, including the collaboration of the Catalan administrations in helping the victims to know the truth.

And a huge hug to Javier and his daughter Mireia, true leaders of this investigation.