Abide by the law, and apply it

On Monday the European Court of Human Rights, based in Strasbourg, rejected an appeal brought against a previous ruling (from July 2012) of one of the chambers of that court, which annulled the application of the “Parot doctrine” to the imprisoned ETA terrorist Inés del Río. By confirming the annulment, Strasbourg opens the door to the release of some 100 prisoners, most of them members of ETA, to whom that doctrine has been applied from 2006 onward.

The Parot doctrine concerns the reductions of prison sentences due to a convict’s good behavior and work, which was provided for in Spanish law until the new penal code entered into effect in 1995. It holds that, in cases of multiple convictions, these reductions are to be applied to each one of the sentences successively, and not to the maximum of 30 years’ imprisonment stipulated in the previous code. In application of the old 1973 code, Inés del Río, who was arrested in 1987, ought to have been released from prison in 2008; under the Parot doctrine, she could have been held there until 2017. Strasbourg considers her continued imprisonment after 2008 to be irregular.

This doctrine was controversial from the beginning, but it was conceived in response to a real problem. Reductions applied to a general 30-year ceiling brought about a situation where the real time spent in prison might be the same for persons convicted of one murder, or of 23 murders (as in the case of Inés del Río). This is an absurdity, at odds with the principle of proportionality of sentences, essential to penal law. The 2012 Strasbourg ruling, now confirmed, does not question this new method of computation, but only its retroactive application. Retroactivity is clearly inapplicable if we are talking about a law, but not necessarily if what changes is the jurisprudential interpretation of the same. Precedents have been adduced of acceptance of this latter principle by the Strasbourg court itself.

It is around these questions that the legal controversy surrounding the case has revolved — not only in Strasbourg, but also in the passage of the case through the Spanish Supreme Court and more particularly the Constitutional Court, which endorsed the doctrine by a narrow margin. But the matter has now been decided by the competent body, and nothing would be more dangerous than for the government to pay attention to the voices calling on it to disobey the ruling, sometimes under the threat of mounting a protest campaign.

It is true that the public has very strong opinions on the issue, but this is largely due to an alarmist feeling that has been whipped up about its consequences. It is not true to say that there is “impunity” without the Parot doctrine, or that murder is “cost-free,” as has been claimed. The prisoners who are to benefit from its non-application have, in most cases, spent more than 20 years in prison — this is not impunity. Nor is it true that their release is going to leave the law-abiding citizen unprotected against terrorism. On the other hand, if the state refuses to comply with a ruling issued by the Court of Human Rights, this option would incite the fanatics of the underworld of ETA to renewed action, given that they have spent decades saying that Spain is not a real democracy.