A farewell to the Parot doctrine, devised to keep ETA terrorists in jail?

The intense debate over the Parot doctrine in recent days has been more political than judicial in nature; the dozens of terrorists that could be instantly freed, the atrocities they committed and the social alarm generated have been the key notes. Very little has been said about what the European Court of Human Rights (ECHR) is to decide as of this week: whether this doctrine respects the content of the 1950 Human Rights Convention, which must be adhered to in the 47 member states of the Council of Europe. Essentially, the tribunal will decide if the doctrine is legal in a democratic state.

In 2012 Strasbourg gave a firm, preliminary answer: the doctrine violated the right to not be sentenced to a jail term longer than the maximum enshrined in law when the crime was committed. The Spanish government appealed and now hopes the 17 members of the Grand Chamber will reverse the ruling and has been lobbying for some time to secure a jurisprudential interpretation that is essential for its penitentiary policy.

The key to the debate is the maximum sentence of 30 years laid out in the 1973 Penal Code. Although sentences of hundreds of years are handed down, the system of sentence reduction gained by working is applied to the 30-year limit and thus prisoners rarely serve the full term. The Parot doctrine, so-named for ETA terrorist Henri Parot, the first prisoner to whom it was applied, altered this status quo by applying sentence reduction incentives to the full term, not the 30-year maximum. The doctrine came in to affect in 2006 and was applied to crimes committed before the current Penal Code came into effect in 1995. Subsequent reforms to the code also increased the maximum prison term to 40 years.

Controversial from the beginning, the doctrine excited the judicial ire of three of Spain's Supreme Court justices. The matter now in front of the ECHR was battled over in 1994 in Spain when a regional high court sentenced a man to 28 years for murder and 16 for rape, ruling that any term reduction must be discounted from the total of 44. The Supreme Court overturned the ruling.

The case of ETA member Inés del Rio, which is before the ECHR this week, challenges the constitutionality of the doctrine. Sentenced to 3,000 years for her part in several terrorist attacks, including the 1986 bomb that killed 12 civil guards and wounded 78 other people in Madrid. Del Rio was jailed in 1989 and, under the reduction system laid out in the 1973 code, should have been released on July 2, 2008.

Before she could walk, however, the High Court invoked the Parot doctrine and set Del Rio's release back to June 2017. Del Rio appealed to the Constitutional Court unsuccessfully in 2009. Three years later the ECHR has admitted her appeal and sided with Del Rio in two of her arguments: that the Spanish state's actions violated Articles 5 and 7 of the convention, due to her freedom being restricted after her sentence had elapsed on July 3, 2008. Spain was ordered to pay Del Rio 30,000 euros in compensation and to release her "in the shortest possible timeframe."

The Spanish government has thus far avoided releasing her by appealing against the ruling.

A former head of the High Court's Penal Chamber, Javier Gómez Bermúdez, disagrees with the Strasbourg ruling: "It cannot be that someone sentenced to 20 years for robbery-homicide serves the same amount of time as a terrorist who has killed 30 people. It's not necessary to talk about terrorism, it's pure logic. Someone who rapes 30 children should not serve the same sentence as someone who has committed eight robberies."