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Tsunami judge tells Switzerland that treaties prevent refusing to cooperate for political reasons in terrorism cases

He considers it "inadmissible" for the Swiss country to ask for explanations about the amnesty law and says that his job is to "judge and have what is judged executed.

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Tsunami judge tells Switzerland that treaties prevent refusing to cooperate for political reasons in terrorism cases

He considers it "inadmissible" for the Swiss country to ask for explanations about the amnesty law and says that his job is to "judge and have what is judged executed."

The judge of the National Court in charge of investigating 'Tsunami Democràtic' has responded to Switzerland that the international treaties signed by both countries prohibit rejecting the request for judicial assistance based on political reasons in cases where terrorism crimes are investigated.

In an order this Wednesday, collected by Europa Press, the head of the Central Court of Instruction Number 6 considers it "inadmissible" for the Swiss authorities to request explanations about the amnesty law while recalling that the job of the judges "is to judge and to execute what has been judged".

The magistrate considers "striking" the request for an explanation contained in the Swiss communication on the possible consequences of an amnesty law in relation to the members of the 'Tsunami Democràtic' platform and with the general secretary of ERC, Marta Rovira, investigated in the cause.

It should be remembered that it was this same Tuesday when the letter was revealed in which Switzerland refused to provide judicial assistance to the judge because it understood that it had to first decide if there was a political nature in the request in which it requested information about Rovira. That document was dated last December, but it was yesterday when it was received by the magistrate.

Now, García Castellón recalls that both in Spain and in the EU democracies the function of judges "is to judge and enforce what is judged" and adds that the Judicial Branch is a separate and independent power from the Legislative and the Executive and that, Therefore, it is not the function of judges to make laws or participate in their drafting, nor is it the function of the legislator or the executive to interfere in the function of judging, qualifying or sentencing.

Along these lines, he indicates that in the communication received by the authorities of the Swiss Confederation he is urged to give "explanations" about a law that "is being prepared" of which the executing authority has learned "through the press." "The explanation is manifestly inadmissible and cannot be substantiated by this magistrate, without entering into more substantive considerations," he answers.

Furthermore, the judge emphasizes that, "in a State with separated powers, it is not up to judges to formulate advisory opinions on laws in progress, or hypotheses on regulations that are not published or in force, as is undoubtedly the case in Switzerland." . "This magistrate is unaware of any issue related to the norm cited in the communication, nor does he fail to notice what interest it may have for someone responding to a request of a jurisdictional nature to question a hypothetical non-approved norm," he maintains.

"As a corollary to this singular request," García Castellón warns of the "inconsistency that is noted in the wording of the petition, since on the one hand the sender refers to an alleged political background to the request for judicial cooperation and simultaneously is strikingly interested in an issue of an eminently political nature outside the strict jurisdictional framework in which this type of requests must be heard".

"Such inconsistency could make us think that the political bias rather responds to the will of the person in charge who receives the communication. Since a question is raised that has nothing to do with the function of this instructor, the answer cannot be other than to abstain from any consideration," he continues.


Regarding the request to locate Rovira, the judge explains that he has resorted to judicial cooperation because when it comes to collecting information about the address of a person that affects a fundamental right recognized in the Constitution, he has understood that the The instrument that offers the greatest guarantee is this route and not the police.

From a point of view of proportionality, García Castellón explains that although it is personal data and responds to the refusal of the person under investigation to provide her whereabouts, it has minimal invasive effects.

Regarding the request for banking information, the judge specifies that it is set until June 2020 because it is the date on which the will to carry out actions by 'Tsunami Democràtic' is known.

The Swiss authorities asked in their letter why movements were requested in the account in question until June 2020, "to the extent that the events organized at the respective airports of Barcelona and Madrid that were supposed to have received financial support through the mentioned account had taken place on October 14, 2019".


The magistrate also adds that the actions of this group or organization are not limited to a single act, as described in the rogatory commission sent, but rather encompasses various actions, which are interrupted by the health crisis at the beginning of 2020, and that try to reactivate, without success, in mid-2020.

Finally, in his order the magistrate explains that since November - when he carried out the first rogatory commission - an urgent coordination meeting was also requested within the framework of Eurojust with the aim of clarifying the issues relating to judicial assistance of the Court. National, without having obtained a response from the Swiss authorities.

This situation, for the judge, is particularly strange considering the reciprocal trust that usually characterizes cooperation between both States. "The reason why the meeting requested by this instructor has not been held so far is unknown, but it must be remembered that experience shows that the best way to avoid repetitive communications, references to press news or misunderstandings is direct communication between the competent authorities," he laments.

The magistrate, in fact, recalls that he has developed a large part of his professional career in the field of international judicial cooperation, serving as Spain's liaison magistrate in France and Italy. "The accumulated experience allows us to affirm that judicial cooperation is based on an essential principle for the proper functioning of existing mechanisms, trust between the authorities when responding to what is requested," he says.