Esteban Beltrán (Madrid, 1961), director of Amnesty International Spain since 1997 and as such one of the main experts in human rights, analyzes in this interview what he defines as “chiaroscuros” of the proposed amnesty law for the process, whose Approval will be voted on this afternoon in the Congress of Deputies, and among other issues he expresses his disagreement with the criteria of the judge of the National Court Manuel García-Castellón to classify as terrorism the events for which he accuses former president Carles Puigdemont and eleven other people. in the cause of the Democratic Tsunami.
What is your opinion of the text of the amnesty law as it is going to be voted on in Congress?
This bill that is going to be approved has chiaroscuros. There are positive aspects, but there is one that in our opinion is very negative and that is that the victims of crimes and the victims of human rights violations have not been at the center of the debates on this amnesty law, neither when it was drafted nor during its processing. .
What do you think has been at the center of the debate, then?
Other issues that have more to do with political polarization, or other aspects, but not the victims.
Amnesty International sent the parties some recommendations for the law, have they been listened to?
We have been sending our technical reports to the parties that have negotiated and there are positive aspects that have been included. For example, that acts that constitute torture or inhuman or degrading treatment be excluded from the amnesty, or that criminal liability be extinguished, that the criminal records of Jordi Sànchez and Jordi Cuixart be cancelled. Or, also, that the infractions committed within the framework of the application of the Citizen Security Law are covered by the amnesty, and that is important because it applied to peaceful protesters and journalists, interfering in the exercise of their rights.
What has been left in the pipeline, then?
Very relevant aspects have been left out and do not comply with international standards. For us, there are two elements that should definitely improve. One, that all acts of human rights violations committed by security forces can advance in the courts. And two, that victims of crime, victims of attacks, see their right to receive compensation and medical-social assistance measures recognized. None of this appears in the amnesty law. And it is very important because, according to international law, victims of human rights violations and victims of crimes have the right to know the truth and to effective reparation for what happened to them.
Are the guarantees established by international law in the amnesty law not respected?
Not entirely, of course.
What human rights are violated?
In cases of human rights violations committed by security forces, for example, states have the obligation to investigate them and ensure that they are not committed within their jurisdiction. Furthermore, they cannot deprive individuals of the right to effective reparation, including compensation and the fullest possible rehabilitation. But compensation, for example, has been expressly excluded from the law. This is a fundamental concern for us and we still cannot accept that it will not be included.
Article 2 of the amnesty law talks about exclusions, including torture or degrading treatment “that exceed a minimum threshold of severity.” What is your opinion that some forms of torture are amnestiable and others are not?
The European Court of Human Rights (ECtHR) indicates that when a person confronts law enforcement officers, any recourse by them to physical force that was not strictly necessary due to the person's conduct undermines human dignity and constitutes a violation. violation of the right set forth in Article 3 of the Convention, which is the right not to be subjected to torture or inhuman treatment. It says nothing about a minimum threshold of severity. These cases should not be part of the amnesty, regardless of their severity.
What margin will judges have in these cases of application of the law?
Well, in the case of compensation, if it is prohibited, judges have little leeway. However, in what are investigations of human rights violations, they can consider whether the amnestied cases comply with the doctrine of the ECtHR, there is room for victims of human rights violations not to be left defenseless.
The investigating judge in the Democratic Tsunami case sees signs of terrorism against former president Puigdemont, what does Amnesty International think?
The two cases that we have analyzed, which are that of the Democratic Tsunami and that of the CDR, but especially the first, because in the case of the CDR it is necessary to analyze a little more, do not respond to the principles of the United Nations rapporteur for judge them as acts of terrorism. The facts investigated do not reach the threshold of acts of a terrorist nature, which are serious crimes committed with the intention of causing death, serious injury, kidnapping, trying to force a State to carry out an act or to frighten the civilian population. In our opinion, they should never have been considered terrorism.
They agree with the Prosecutor's Office, which does not see terrorism in the case of the Democratic Tsunami either.
In fact, the Provincial Court of Girona already confirmed in June 2022 the shelving of the investigation against 49 people for the interruption of the AP7 in Salt. And also the Investigative Court 4 of Figueres agreed to file the investigation against nearly 200 people who participated in said mobilizations in the municipality of La Jonquera.
But it is not just Judge García-Castellón, Judge Aguirre has reactivated the Voloh case this week, which compromises the amnesty for Puigdemont due to links with Russia. Is there a judicial offensive to empty the amnesty law of its content?
I prefer not to go into this point, what I do indicate is that, of course, in our opinion the prosecuted cases of terrorism are not such. No person should be tried for terrorism in the case of the Tsunami, or that of the CDR, although in the latter I already said that we are studying all the information, but the Prosecutor's Office, for example, does not attribute the commission of any violent act to the people. That is to say, there may be a criminal response, for example the possession of explosives, but it should be resolved in an ordinary criminal process.
What it is telling me is that in some way the judicial cases are being forced.
Of course, there is a double aspect here. The first is, speaking of the future, what have we learned from all this and what should be corrected. For us, in 2015 the types of terrorism were reformed in the Penal Code in a disproportionate manner and far exceeding the threshold established by international standards. It is legislation that clearly restricts rights. Sometimes it has been applied in a disproportionate manner that violates human rights. And this has the consequences that it has now and that is that the judges, some judges, may think that there is terrorism in those acts that we have talked about before. I prefer not to get involved in the judges' intention, but I do tell you that it does not clearly seem like it is terrorism.
The amnesty law qualifies terrorism by including cases in which "serious violations of human rights" have not been caused. Wouldn't it have been better to directly reform terrorism crimes in the Penal Code?
Correct. What we have asked of the parties that are negotiating the amnesty law is that there be a reform of the Penal Code, of several of the articles, which implies that in the future there will never be these accusations of terrorism again. That is to say, all the articles that suffer from vagueness and disproportionate breadth, which are for example articles 573, 575.2, 577, 578, all of them should be reformed to, in some cases be eliminated, such as the humiliation of victims of 578 and The rest must be done in accordance with international standards in this regard.
Do you see this reform of the Penal Code in 2015 as reasonable in the context in which it was made?
I think it was due to an attempt to offer tougher legislation regarding terrorism at a time when there was perhaps a stronger Islamist threat, but it makes no sense because it has then been little applied. And in some cases, for example what has to do with humiliation of victims, it has been applied to people who had nothing to do with this threat from terrorist groups. In the end, what it has caused is also an impact on freedom of expression and assembly.
Does this legislation encourage terrorism to be used as a political weapon?
The risk, which is happening now, is bringing terrorism charges against participants in civil disobedience actions, as we have seen with climate change activists and other areas. Governments should be clear that terrorism cannot be used as an excuse to violate or restrict freedom of expression and assembly because that also has a deterrent effect, people censor themselves due to the risk that they could be accused of something. crime related to terrorism.
Closely linked to the process is the cause of espionage on the mobile phones of the independence leaders with Pegasus, do you think they will get to the bottom of this matter?
We have followed the case, we appeared at the Pega commission in the European Parliament, which concluded that the devices of at least 65 people in the Catalan independence circle, including politicians, lawyers and civil society, had been infected with spyware like Pegasus, and they asked the Spanish State and the Prosecutor's Office to promote an investigation and provide an effective remedy to these victims. Our concern is currently very serious that these cases may go unpunished. Of all the open cases, documentation has been partially declassified in that of President Pere Aragonès, but there is a lack of progress in the other cases.
What can be done?
There is enormous cause for concern about the entire Pegasus area, not only in Spain but in other countries, and what should be done, and that is Amnesty International's claim, is that it not be used until there are legal changes. The lack of progress in the investigation into these cases shows the lack of resources available to the victims, to which they should be entitled. But in addition, in Spain the Commission on Official Secrets of Congress has been used to report whether or not there have been practices that could violate human rights. It is incredible, it cannot be, there is still a lack of transparency in this case and we do not even know if the Government continues to use the software.
Do you think it could be that the Government continued spying with Pegasus?
We do not know. This entire circle of impunity is closed with a 1968 Official Secrets law that has not been reformed and a CNI law that clearly must be reformed and the Government committed to doing so to guarantee that there was an effective remedy for the victims, and a control judicial that deserves that name. None of this has happened, the cases in court are not moving forward and there is an enormous risk of impunity.
