Dogmatism and lip service

Spain, of late, is a land of champions in sport. But other candidates for championship status are the judges of Spain's Supreme and Constitutional courts. Some of their rulings have been condemned in international courts, in virtue of treaties that Spain has signed. And, far from bowing their heads and trying to right the wrong they have done, they persist to the bitter end, casting about for technicalities by which to dodge the manifest sense of the rulings. Champions!

But it wasn't always so. Indeed for decades the top Spanish courts have oscillated between mere lip service to international court rulings, and strict compliance with them. During the transition to democracy after Franco's death, Spain's top judges were well aware of the gross excesses against prisoners' rights that had been committed in the climate created by the fascist regime. Now, however, they seem more reluctant to rectify rulings in which they have overstepped the law, to the prisoner's detriment.

In 1982, the National High Court sentenced three Catalan independence activists to terms of over 30 years for the bombing death of a hostage. The Catalans argued that their trial was not one of due process, while the 1978 Constitution allowed a maximum jail sentence of 30 years. Yet the ruling was confirmed by the Supreme Court and then by the Constitutional Court.

In 1988 the European Court of Human Rights (ECHR) condemned Spain for omission of due process. The problem was, there was no protocol for Spanish compliance with ECHR rulings. Not that the imprisoned killers were innocent, but to keep them in prison was to validate the illegal nature of their trial.

Now comes the first ECHR condemnation of the so-called Parot doctrine, "an attempt by the custodians of the law to cheat at solitaire"

The Supreme Court declared that the ECHR ruling had a "declarative" and not an "executive" effect, and refused to annul the prison sentences. But in 1991 the Constitutional Court did an about-face and annulled them, noting that while ECHR rulings have "no executive effects" in Spain, they are "obligatory and binding for our state." That is, strict compliance.

However, a couple of years later the Constitutional Court, in connection with the Ruiz-Mateos case (a massive pyramid swindle) declined to enforce an ECHR condemnation of Spain for omission of due process, and unreasonable delay.

In 1998 came another condemnation of Spain, also ignored, in the Castillo Algar case of a colonel sentenced to three months' imprisonment by a military court. Three members of the Constitutional Court had dismissed the officer's appeal out of hand, indicating prejudice, and should not have formed part of the panel that then proceeded to convict him.

Now comes the first ECHR condemnation of the so-called Parot doctrine, which (overruling the more liberal parole terms of the previous Penal Code under which they were convicted) has served to prolong, arbitrarily and retroactively, the sentences of more than 50 prisoners, mostly ETA terrorists. "An attempt by the custodians of the law to cheat at solitaire," in the words of one judge. Many more ECHR condemnations can be expected on this count, because, as various jurists and the ECHR itself have explained, it is a manifest violation of fundamental rights.

So far the judges, far from complying with the order to release the ETA terrorist Inés del Río, have looked the other way, and the government has ordered an appeal to the Grand Chamber of the ECHR, so that by the time it rules (presumably in her favor), Del Río will have spent perhaps another year in prison.

Many countries have been repeatedly condemned for violation of prisoners' rights. The UK is the current champion. But the rulings against the Parot doctrine are likely to put Spain at the head of the list, for whatever that is worth.