“Mulier Caesaris non fit suspecta etiam suspicione vacare debet”. This proverb employed by Gaius Julius Caesar in connection with an alleged infidelity of his wife, Pompeia, contains another reading: Caesar’s wife should not only be virtuous, but should also appear to be so. Like Pompeia's virtue, judicial impartiality must not only be present but must also appear to be so.

Arnaldo Otegi is a Basque politician and current General Coordinator of Euskal Herria Bildu. He was also a member of the Basque Parliament for two political groups (Herri Batasuna and Euskal Herritarrok) who were banned in 2011 because of links with the terrorist group ETA.

In the case at hand, the European Court of Human Rights was asked to rule whether Spain had violated Article 6 of the Convention, because of the impartiality of the Audiencia Nacional in prosecuting Otegi and other plaintiffs for membership and leadership of a terrorist organisation. The outcome of this judgment is most important for the plaintiffs because it will allow them to challenge their exclusion from elected office until 2021.

What are the facts of this case?

On 2 March 2010, Arnaldo Otegi was sentenced to two years’ imprisonment by the Spanish Fourth Section of the Audiencia Nacional for encouraging terrorism. The reason was that Otegi had participated in a tribute to Etarra prisoner Jose María Sagarduy in the Biscayan municipality of Amorebieta using the ETA flag.

During the trial, the President of the Section asked the applicant whether he condemned ETA's terrorism. Refusing to answer the question, the President replied that she “already knew that he was not going to give an answer to that question”. Faced with these events, Otegi decided to lodge an appeal arguing the lack of impartiality of the President. In 2011, the Supreme Court ruled in his favour.

In another case in 2009, several criminal proceedings took place before the Audiencia Nacional (“Beteragune case”). Otegi and the other applicants wanted to create a political party under the control of the terrorist organization ETA. All were accused of belonging to that terrorist organization. The prosecution was assigned to the same Section composed of the same panel of judges who were part of the first criminal proceedings against Otegi.

The applicants decided to file several appeals. After failing to obtain the reparation sought via the domestic courts, they decided to make a final appeal to the ECtHR. The applicants argued, invoking Article 6.1 of the European Convention on Human Rights (ECHR), that the Fourth Section of the National High Court lacked impartiality.

The analysis of the ECtHR

The Court found a violation of Article 6 ECHR, for the following reasons:

1. Concerning the composition of the panel, the Court found that the same panel of judges who had participated in the first criminal proceedings participated in the second proceedings. However, the Government argued this was irrelevant as both criminal proceedings related to different facts and had different purposes; therefore the panel of judges in charge of prosecuting the second proceedings could not have been impartial. In spite of these nuances, the Court established that the central element of both proceedings was the terrorist organisation ETA.
   
2. In relation to the President´s lack of impartiality in the first criminal proceedings, the Court stated that it cannot be completely ruled out that the unfavourable opinion of the President of the Court regarding the guilt of Otegi in the first criminal proceedings could also have had a negative impact on the rest of the plaintiffs and on Otegi too in the second criminal proceedings.

Although this case does not present any new elements as regards the interpretation of the requirement of impartiality under Article 6 of the Convention, some points do merit some attention.

On Just Satisfaction (Art. 41 ECHR)

The judgement concluded by six votes to one, that “the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the third applicant”. In her dissenting opinion, Judge Keller recalled that just satisfaction not only serves to compensate the plaintiff for the violation of the fundamental right, but also serves as an incentive to the Government to change its malpractice.

We should note that in the ECtHR document on just satisfaction claims it is indicated that “The award of just satisfaction is not an automatic consequence of a finding by the European Court of Human Rights that there has been a violation of a right guaranteed by the European Convention on Human Rights or its Protocols.”

By the same token, finding a violation of a right guaranteed by the ECHR should not in itself (automatically) imply the award of just satisfaction as this decision shows.

In sensitive matters (such as those related to terrorism), courts always rule with caution. In a way, this may be to attenuate public opinion. However, in this case, there were good reasons for damages to be awarded. The Court’s failure to award damages will mean that the plaintiffs, after already having waited for many years, will now have to go through national proceedings once more to obtain just satisfaction, with all the psychological distress such proceedings will entail. Secondly, in a similar case Alony Kate v. Spain, the ECtHR not only found a lack of impartiality on the part of the Audiencia Nacional - in the framework of a criminal process concerning the terrorist organisation Hamas – but also awarded damages.

On the Spanish Judicial System

Since Spain has ratified the ECHR, the Court has found that the right to an impartial judge was violated on as much as 9 occasions (three of them relating to the Audiencia Nacional).

The ECtHR’s case law seems to reveal a more fundamental problem as regard judicial impartiality in relation to the Audiencia Nacional. The criminal chamber of the Audiencia Nacional, in charge of prosecuting terrorist offences, has four sections, each composed of four judges responsible for prosecuting the different cases. In my opinion, the limited number of judges and the heavy workload of the Audiencia Nacional may result in related cases (as was the case in Otegi) being prosecuted by the same Section or that the same Section that issued a preventive measure is the same Section that pronounces on the conviction (as can be seen in the Alony Kate case). This leads to an apparent lack of impartiality, especially in the eyes of the defendants. In other countries such as France, the Cour d´Assises of Paris is competent to prosecute terrorist crimes. However, the crimes of drug trafficking or association of criminals come before the Cour d´Assises of the place where the alleged acts took place. If this model is followed, it could overcome the risks that a jurisdiction such as the Audiencia Nacional host.

Despite this Achilles heel, it would go too far to say that the Otegi case calls into question the Spanish judicial system. It does demonstrate that in a specific case the right to effective judicial protection has been violated, in particular in respect to judicial impartiality.

This present case has had political repercussions, adding to the call by the doctrine for the abolishment of the Audiencia Nacional and to attribute jurisdiction to the ordinary criminal courts to try terrorist offences. However, for the time being, the Audiencia Nacional will continue to be responsible for handling such cases and the risk of further complaints being lodged in Strasbourg therefore remains.