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Parole for a dying killer

Faced with contradictory reports, the judge opts for release of the ETA terrorist Bolinaga

The National High Court’s prison supervision judge, José Luis Castro, on Thursday decided to grant parole to the imprisoned ETA terrorist Josu Uribetxeberria Bolinaga, who is terminally ill with cancer.

To this end, the judge had in hand two medical reports on the prisoner's health, partly contradictory, and a legal framework that is also contradictory, or at least allows of differing interpretations. The report of the oncologists of the Donostia hospital says that the prisoner is in an irreversible clinical situation; that he can hardly live longer than nine months, and that only 10 percent of patients in his situation live longer than a year. The report of the National High Court forensic specialist, Carmen Baena, considers that the prisoner’s long-term prospects are very bad, but that for the moment he is not in a “terminal phase;” and that there is a 50 percent chance he may live longer than 11 months.

Both reports, then, consider it unlikely that the prisoner will live longer than a year, but the second adds that he is not in a terminal phase. The applicable norms do not define what is considered to be a terminal phase, but article 196 of the Penitentiary Regulations, titled Parole for septuaginarians and the terminally ill, identifies the latter as “persons very gravely ill with incurable or irreversible diseases.” And this is the interpretation applied in the 23 cases of ETA terrorists to whom, in the past, parole has been granted on the grounds of serious illness.

The National High Court prosecutor, Javier Zaragoza, added to the forensic specialist's arguments the observation that the prisoner has not distanced himself from ETA, or asked forgivenness of the victims. These are two of the requisities established in article 90 of the Penal Code in support of favorable prospects of rehabilitation, which in turn is a precondition for granting parole to persons convicted of terrorism. But article 92 establishes that “notwithstanding the content of previous articles,” they may obtain parole if the prisoner’s life is “patently” at risk. And it attributes to the supervisory judge the evaluation of the prisoner’s “capability to commit new crimes, and risk that he may do so.”

It does not seem outlandish to interpret such an impossibility as a guarantee that the prisoner will not relapse into his criminal ways, which is the basis of a prospect of rehabilitation. Article 104 of the Penitentiary Regulations says that “prisoners with incurable diseases” may be granted parole for “reasons of humanity and personal dignity, in view of the slight risk they will return to criminal activity.”

Without bending of logic, this criterion may also be applied to release. If there is no risk of his returning to terrorism, and if limitations are imposed on his conduct outside the prison, to assent to the request that someone who has not got long to live be allowed to die in his home is only proper to a civilized society. Even if Josu Uribetxeberria was not in the least civilized in his treatment of his victims.

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