The full jurisdiction of the Criminal Chamber of the Supreme Court has unanimously agreed that the trial of the general coordinator of EH Bildu, Arnaldo Otegi, and four other national leaders must be repeated for the attempt to rebuild the outlawed Batasuna, the so-called Bateragune case. The Chamber directed by Manuel Marchena, which last July annulled that sentence by assuming the Strasbourg sentence that determined that the trial had not been fair Due to the lack of impartiality of one of the magistrates who tried them, it has now ruled on the request that this oral hearing be repeated, which has been made by the Verde Esperanza victims’ association, which exercised the popular prosecution in that process.
The Supreme Court annuls Otegi’s sentence for belonging to a terrorist organization in the ‘Bateragune case’
This group, linked to the deputy of Vox Francisco José Alcaraz, appealed to the High Court after, last October, the National Court refused to repeat the trial, alleging, among other reasons, that “the punitive consequences have already been met.” Otegi and the other leaders were sentenced by the National Court in 2012 to up to ten years in prison for belonging to a terrorist organization. The Supreme Court lowered those sentences to between six and six and a half years in prison, which they all served.
The decision has been adopted by the Plenary of the Chamber, composed of 16 magistrates, in compliance with art. 4.2 of protocol 7 of the European Convention on Human Rights, which excludes the prohibition of double prosecution in cases such as the one now being resolved. Judge Miguel Colmenero has been the speaker of the sentence, which will be known in the coming days. This decision is also based on the precedents of the Court’s own jurisprudence, the Supreme Court has reported.
The decision has the endorsement of the Office of the Supreme Court Prosecutor, who argued that a “procedural defect cannot be converted into a criminal exemption” and requested that the retroaction of the proceedings be agreed upon prior to the appointment of the components of the court that He tried Otegi and the rest of the leaders and that, after appointing new judges, the trial against the five defendants was repeated.
“Partiality” of a magistrate
After exhausting the legal channels in Spain, Otegi and four other leaders of the abertzale left convicted of the Bateragune case appealed to the European Court of Human Rights (ECHR), which proved them right in November 2018 for the “partiality” of a court magistrate who sentenced them, Angela Murillo.
At the origin of this appeal is the answer that the magistrate gave when Otegi, in the hearing of a previous case, did not want to answer the question of whether he condemned the violence: “I already knew that I was not going to answer that question” . To which Otegi replied: “I also knew I was going to ask.”
The National High Court then sentenced Otegi to two years in prison for exalting terrorism. He appealed Murillo’s partiality and the Supreme Court agreed with him. Another Chamber of the Court acquitted him in the repetition of the trial. Two months later, in the Bateragune trial, the challenge against Murillo was repeated, but this time without success.
In the Strasbourg trial, this meant that Otegi and the other four convicts did not have a fair trial and condemned Spain for not addressing the challenge for partiality against the judge. For the ECHR, accepting the judge’s first challenge for partiality against Otegi in one case and rejecting it in a different proceeding against him only a few months later violated the European Convention on Human Rights.