The Supreme annuls the acquittal of three ETA members for the murder of a policeman in Galdácano and orders a repeat trial

The high court believes that the AN was wrong to prescribe the alleged crimes for this crime

MADRID, 21 Jul. (EUROPA PRESS) -

The Supreme Court (TS) has annulled the sentence of the National Court (AN) that acquitted the former members of ETA Carmen Guisasola, Óscar Abad and Jose Ramón Martínez for the murder in 1990 of the national policeman Ignacio Pérez Álvarez in Galdácano (Vizcaya) , understanding that the AN was wrong to consider the crimes derived from this crime prescribed, for which it has ordered a repeat trial.

In a ruling on July 7, the Supreme Court has annulled the sentence issued on October 16, 2020 by the magistrates of the Second Section of the Criminal Chamber of the AN José Antonio Mora Alarcón -- who served as president --, Julio de Diego --who was the rapporteur-- and María Fernanda García, stating that now it should be another court that judges again.

According to the facts proven in the annulled ruling, the attack took place around 3:00 p.m. on January 30, 1990, when a bomb placed "in the saddlebags that a bicycle was carrying" that had been placed next to the national police car exploded as it passed of the agent, ending his life.

The Second Chamber of the TS, in a sentence delivered by magistrate Manuel Marchena, agrees with the Prosecutor's Office, which appealed the acquittal, putting on the table two resolutions of the same chamber that rejected the extinctive effect of criminal responsibility derived from the prescription giving free way to judge the three ETA members.

For the Public Prosecutor, it was incomprehensible that later the same Chamber, before the formulation of the prescription raised again by the defense, acquitted for this reason, omitting any argument or reasonable justification about it.

The Supreme Court believes, as does the prosecutor, that the court should have appreciated that a ruling notified on June 1, 1993 by the Central Court of Instruction Number 5 interrupted the statute of limitations. Said resolution entrusted the Civil Guard with "the corresponding study and ballistic analysis of the weapons that were seized from the 'Comando Txalaparta'".

The Supreme Court considers it essential to connect the aforementioned order with the report of the Public Ministry to which it responded, which expressly requested "a report determining the number of the judicial proceeding and investigating court of the criminal acts recognized by the accused Óscar Abad and José Ramón Martínez in their police statements.

The Supreme believes that "the resolution whose functionality is intended to be underestimated was clearly expressive of the jurisdictional will to continue the investigation of all those criminal acts recognized by those who, on the date on which the report is requested, were already accused in different procedures." "They were, therefore, fully identified and they mentioned Carmen Guisasola in their recognition," he underlines.

Thus, it maintains that said order "had the interruptive effect that is typical of those resolutions of material content called to activate a procedure that, do not forget, sought to clarify a criminal act attributed to the terrorist organization ETA."

"And it is the State's desire to clarify its participation in different criminal acts with respect to which different criminal cases had already been initiated, which is reflected in the prosecutor's report and the jurisdictional resolution through which it is answered," he stresses.

The Second Chamber explains that the statute of limitations pursues, among other objectives, "not to attribute normality to the laziness of the State when it comes to making the action of 'ius puniendi' a reality, although at the same time it emphasizes that "none of this happened in the case at hand."

Thus, it indicates that, although "it is true that the time elapsed between the issuance of the ruling and its completion is absolutely unacceptable, a faithful reflection of a defective organization of the judicial office, which took more than ten years to respond to two reports requested by the prosecutor", "the stoppage time was not enough to cause the extinguishing effect of criminal responsibility".

The ruling of the TS has a particular vote of Leopoldo Puente, one of the five signing magistrates, who agrees with the majority in that the change of criteria on the prescription made by the Criminal Chamber of the National High Court "would have deserved a justification argumentation more detailed", but considers that the referred ruling is not enough to interrupt the statute of limitations.

In his opinion, "the well-deserved order has a compilation, preparatory, almost bureaucratic purpose", because, although the purpose was the practice of investigation proceedings, "this purpose did not materialize, it did not mean the reactivation of the present procedure".

All in all, it concludes that the "deficit" in the reasoning of the AN Criminal Chamber to justify its change of criteria "would only produce the nullity of the decision, with reinstatement of the proceedings at the time immediately prior to its dictation, for the sole purpose that said sufficient motivation be expressed".