The National High Court refuses to apply the 'Atristain doctrine' to those convicted of the 17-A attacks

He insists that "what is relevant" is whether the solitary confinement deprived them of a "fair trial"

MADRID, 9 Jun. (EUROPA PRESS) -

The National Court (AN) has refused to apply the 'Atristain doctrine' to two of the three convicted of the attacks perpetrated on August 17, 2017 in Catalonia, which resulted in 16 deaths, considering that it is an "extemporaneous" request " which, moreover, does not detail what evidence obtained during the incommunicado regime of Mohamed Houli Chemlal and Driss Oukabir would have been key to their conviction.

In two resolutions from the end of May, to which Europa Press has had access, the Appeals Chamber rejects the incidents of annulment that the defenses of Oukabir and Chemlal had raised that same month as an extension of their appeals, as well as the petition that said incidents collected for a hearing to be held where the application of the 'Atristain doctrine' to his case will be analyzed.

The magistrates explain that neither of the two incidents can even be admitted for processing due to "their manifest extemporaneity." In this sense, they indicate that they represent an extension of their respective appeals, which were presented when the sentence of the European Court of Human Rights (ECHR) on the ETA member Xabier Atristain had already been issued.

To this they add that the incommunicado regime included in article 527 of the Law of Criminal Procedure (LeCrim) "was already in force on the date on which the oral trial was held", without either of the two defenses, " with full knowledge of the entirety of the case and of the actions carried out in the investigation phase, has denounced at the appropriate procedural moment the alleged violation of his client's right to a fair trial".

Likewise, they underline that "what is relevant is whether, in view of the procedure as a whole, the restriction of communications has deprived the accused of a fair trial without reference being made in the brief presented, nor was it made previously, to what evidence obtained as a result of the plaintiff's statements in incommunicado detention constituted an important part of the material evidence on which the conviction was based".

On May 27, 2021, the AN sentenced Chemlal and Oukabir to 53 years and 6 months in prison and 46 years in prison, respectively, for belonging to a terrorist organization; possession, deposit and manufacture of explosive substances or devices of a terrorist nature; and havoc in an attempt of a terrorist nature in competition with 29 crimes of injuries due to serious negligence. The third defendant, Said Ben Iazza, was sentenced to 8 years in prison for collaboration with a terrorist organization.

Chemlal and Oukabir appealed, alleging, among other things, a breach of procedural guarantees and the nullity of the evidence due to an alleged break in the chain of custody, and questioning the death of the imam of Ripoll Abdelbaki Es Satty in the explosion of the house of reach.

Subsequently, they demanded that the doctrine enshrined in the sentence issued on January 18 by the ECHR on Atristain be applied to them, which establishes that the ETA member's incommunicado detention was legal but "of a too general nature", for which he declared that Spain violated his rights to a fair trial and to choose a lawyer, and ordered compensation of 20,000 euros.

Oukabir's defense, to whose brief this news agency also had access, argued that the Strasbourg ruling "has to do with the application of the incommunicado period for a detainee for a terrorism crime" and that the same thing happened to his client. than to Atristain because --he argued-- his statements while he was held incommunicado were "essential for the investigation of the facts and his subsequent conviction."

"The incommunicado regime to which Oukabir was subjected, also deprived, like Atristain, of the total services for his legal assistance --preparing, organizing and discussing his defense-- that Europe demands to be made available to him," he stated.

Despite obtaining a favorable ruling from the ECHR, Atristain saw his appeal for review before the Supreme Court frustrated. The Criminal Chamber determined on June 1 that there were no reasons to review his sentence because there is other evidence, in addition to his statements incommunicado, on which he is based.

Consequently, the ETA member was arrested a few days later in San Sebastián in compliance with the sentence of the National High Court that sentenced him to 17 years in prison for the crime of belonging to a terrorist organization and possession of weapons and explosives.