ELPAIS.com
TRIBUNE: José Antonio Martín Pallín
The policeman and the milkman
as PP asks, would have been illegal, according to the judge of the Supreme
José Antonio Martín Pallín 24/04/2011
said Winston Churchill that a democratic country is one in which a citizen hears the bell home at six in the morning and think it is the milkman. The English custom of serving these bottles at home has fallen into disuse, but police work is still essential.
A democratic country can support decisions
questionable judicial
Spain can not afford to violate
rule of law
The prosecutor's appeal did not alter
the legal situation:
remained illegal surveillance
The right to self-ambulation
can only be affected by court order
police operation can not be governed by guidelines rigidly regulated. Their work, as indicated by law, ranging from prevention to detention, through investigation of criminal offenses. Services may be established to monitor the suspects in public places, but never take steps that affect fundamental rights such as privacy or free walking. These rights can only be affected by the required judicial authorization. The Supreme Court has never authorized police to follow people when they are the subject of an investigation carried to discover the existence of a crime and identify potential authors.
The case of Antonio Troitiño terrorist, condemned thousands of years in prison for numerous murders, has triggered an intense debate. The penalty mathematical product of the sum of all those that have been imposed, is of vital reasons, impossible to fulfill. So all the stops include temporary laws that can be transferred without violating the law, or deviation from the constitutional purpose of punishment, which is none other than the social reintegration and rehabilitation of the prisoner.
Our Penal Code, as a ceiling, a maximum 20 years in prison. Exceptionally you can reach the age of 25 and 40 when the case of persons convicted of two or more crimes of terrorism. Constitutional principles and content of legal texts allow for multiple interpretations. Punitive exacerbation was reached with the so-called doctrine Parot, a Supreme Court decision was not taken unanimously, and whose suitability or not the Constitution is pending an appeal to the Constitutional Court.
Troitiño was convicted of the 1973 Penal Code, for what ever you could apply the laws force today. The High Court made the mathematical calculation of the maximum penalty permissible then discounting the time of detention. Others believe that the discount can be made partially to each of the sentences, so the length of the sentence would be longer. This is the Supreme Court's majority position, but remember that in our system, its jurisprudence is not binding, and that any judge or court may depart from its standards if properly justified their dissent.
The truth is that Troitiño was released by the Court, and this resolution demanding its immediate implementation. You could ask the same court to reconsider its decision not to force him the ruling of the Supreme known days later. It would be devastating for the rule of law, and a very serious attack on judicial independence, accountability of judges by the free exercise of their powers within the acceptable criteria for the letter and spirit of the law.
The new Penal Code admits probation measures beyond compliance of the custodial sentence, but not retroactively. Then any decision to follow the ETA would be contrary to law. This is a free man even has the right to appeal a decision which increases the time of execution of the sentence. In my opinion, the defense of superior value of freedom would allow him to go to Constitutional protection, and even the Human Rights Court in Strasbourg.
The Prosecutor's appeal against the first decision of the Court could not alter the legal status created. The surveillance measures remained illegal. If the correction occurred, would be launched all legal mechanisms designed to enforce the sentence.
The European arrest warrant and surrender could only be activated when the second decision was final. We are therefore faced a person released to that required to return to prison to serve a new settlement of condemnation. In its regulation is not addressed clearly such a case. Maybe so he sought clarification on this?
unleashed noise should not obscure the circumstances of this case. This is a person convicted of terrorist offenses has completed 24 years of prison confinement in first grade. This entails a tough prison regime isolation prison no access to other means smoother implementation. A democratic country can withstand questionable judicial decisions, but can not afford to violate the principles basic rule of law.
Jose Antonio Martin Pallin.
Supreme Court Justice.
Commissioner of the International Commission of Jurists
based in Geneva.
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