Spain: Punishment without a sentence

On 29 November, the trial of Gabriele Kanze will begin before the Audiencia Nacional, the central Spanish criminal prosecution court. The 48 year old teacher from Berlin has been in prison for two years and eight months, first in extradition detention, then on remand


"I am glad that finally something is happening", Gabriele Kanze wrote in June this year from her pre-trial detention in Brieva in the Spanish province of Avila. In March 2002, she was arrested whilst crossing the border to Switzerland. In January 2003, she was extradited to Spain and since then she has been held on remand. According to Spanish procedural law, pre-trial detention can last up to two years without being reviewed if the charges could lead to long sentences. In Kanze's case, the authorities could therefore detain her without trial until January 2005. The Spanish justice authorities gave the bill of indictment Gabriele Kanze's lawyer only in April this year, though it is dated December 2003. After some delays, the first trial day is now set for the end of November.

Varying information about flats and weapons

In its bill of indictment, the public prosecutor accuses Gabriele Kanze of possession of arms and explosives as well as of supporting an armed group, namely, the ETA commando "Barcelona". The prosecution demands 8 years each for the first two charges, for the latter a six years prison sentence.. Only 10 lines of the nine page long indictment however relate to Gabriele Kanze, the remaining pages outline the membership and actions of the ETA commando. She is accused of having rented two apartments in Barcelona together with her partner and current husband Benjamin Ramos, which allegedly served as the commando's hiding place and weapons and explosives depot.

The flats in questions were discovered by police on 28 April 1994, after the arrest of Felipe San Epifanio, one of the commando's members. San Epifanio was, said his lawyers, tortured during his five day long incommunicado detention (being held without the right to communicate) - this form of detention being legal in terrorism cases under Spanish procedural law - but rejected by the court.

The police only found weapons in one of the flats identified by San Epifanio and this flat had not been rented by Gabriele Kanze but by Benjamin Ramos, who was arrested in Berlin in 1995. He was extradited one year later and sentenced in 1997 by the Audiencia Nacional on grounds of support of the ETA commando. Significantly, the court then found that Ramos was not to be made responsible for the weapons depot in the apartment. After leasing the apartment he did not have power of disposition over the property anymore, the court found, thereby clearly exonerating him from all charges concerning the arms depot. He was sentenced to 11 years imprisonment for fleeing the police when he escaped with the rest of the group after the arrest of San Epifanio and for having fitted a car with a fake license plate.

The contract for the other flat, actually rented by Gabriele Kanze, is dated the summer of 1993. At this time, she was working as an exchange teacher in Barcelona, counting on a much longer duration of her stay. These plans changed and she returned to Berlin in September 1993. In the Audiencia Nacional in 1997, the commando members confirmed they did not know Gabriele Kanze. In April 1994 - when the police found thje flats - she had already been back in Germany for six months, and she did not leave Germany until her arrest at the Swiss border in March 2002. It was therefore impossible for her to have power of disposition over the property.

At that time Kanze could not be extradited from Germany so the Spanish authorities filed a request with the German authorities in 1994 to take over the prosecution of Kanze on grounds of the Spanish charges. At the time, a prosecution on grounds of supporting ETA was not possible in Germany, because the criminal offence of forming or being a member of a "terrorist organisation" as laid down in § 129a of the German Criminal Code was only applicable to domestic organisations. As the same crime must be punishable in both countries the Berlin public prosecutor was only able to investigate on grounds of the accusation of weapons and explosives. The prosecution found that Gabriele Kanze had no connection to the flat rented by Benjamin Ramos and the weapons depot found there. It also found that no weapons or explosives were found in the apartment rented by her, only a "glass container of two by four centimetres which contained a black powder of unknown composition". In September 1995, the Berlin public prosecution demanded more information from the Spanish authorities about the mysterious finding. The reply came three months later: the substance was lead sulphide. The Federal Office of Criminal Investigation (Bundeskriminalamt) confirmed at the end 1995 that there were no translation mistakes and that the substance was clearly not used in the making of explosives. Lead sulphide is, amongst other things, found in ceramic glaze. In April 1998, the public prosecution stopped the preliminary investigation on grounds of lack of suspicion (§ 170, paragraph 2 of the German Criminal Procedural Code).

The charge of possession of weapons and explosives was invalid and on closer scrutiny the related charge of association therefore vanished into thin air. At the latest in 1998, the Spanish authorities could have closed the case and stopped all proceedings. However, they kept the arrest warrant active. Neither in the extradition request to Switzerland, nor in the bill of indictment, is there any attempt to resolve the obvious contradictions in the argumentation or to mention the outcomes of the investigations of Madrid or Berlin.

Legal harmonisation downwards

The defence and supporters of Gabriele Kanze have called on the public and in particular on critical lawyers associations to follow the trial closely. Firstly, to avert the wrongful sentencing of Gabriele Kanze. Secondly, to put in the spotlight the intensified efforts to 'harmonise' European criminal codes. The first outcome of these efforts, the framework decision of the Council of EU Justice and Home Affairs Ministers on the European Arrest Warrant, was introduced by the Lower House into German national law in June this year. The central mantra of this harmonisation politics, which has also found its way into the draft EU Constitution, is: judicial decisions are to be mutually accepted.

In reality, all criminal- and criminal procedural excesses are accepted with a shrug of the shoulders, says Heiner Busch of the Committee for Fundamental Rightsand Democracy (Cologne), such as those to be found in the procedure against Gabriele Kanze: from the demand for high sentences and extremely long remand periods to incommunicado detention in political trials and the related danger of being tortured. The "harmonisation" amongst European democratic constitutional states therefore contains significant dangers for the rights of the accused and the defence. Simply because one member state makes a request to another under "mutual recognition" under the European Arrest Warrant the procedures and methods by which evidence has been gathered is not open to question, he said.

The European Arrest Warrant marks the end of extradition law in the EU. The extradition procedure is exchanged with a 'handing over' procedure. Although the Council of Europe's Extradition Convention, valid until recently, did not lay down a comprehensive material testing of the charges and evidence, the courts could demand explanations from the requesting state if the extradition request showed obvious inconsistencies. They could also refuse the extradition if the evidence had been gathered through illegal methods.

Although Switzerland is not an EU member state and will not implement the EU Arrest Warrant straightaway, the Swiss Federal Court has anticipated central aspects of this regulation. The Swiss authorities did not make an attempt to acknowledge the contradictions in the extradition request, but simply argued that they would have to be examined by the judge in Spain.

Furthermore, the court did not respond to the fact that the statement by Felipe San Epifanio, which initiated the prosecution in the first place, was say his lawyers extracted by the use of torture and that the torture of a third person in the same procedure would constitute a barrier to extradition. However: as Spain is a constitutional and democratic state, it is claimed, that as a signatory to the European Convention on Human Rights and the UN Anti-Torture Convention:

"The serious critique by human rights committees ... of individual cases of assaults and grievances ... proves the efficiency and functioning of international legal control mechanisms" [from decision of Federal Court]

And therefore, says Heiner Busch, there is apparently no need to question the methods used in individual cases.

The Swiss court refrained from using any of the possibilities laid down by the Council of Europe Convention. In the end it merely followed the demands of the EU as laid down in its framework decision on the Arrest Warrant: it accepted the arrest warrant of the Spanish investigation authorities. In practice, the extradition procedure became a delayed 'handing over' procedure.

The Swiss Federal Court did not want to recognise that Gabriele Kanze had been largely exonerated by the halting of the preliminary investigation in Berlin. The court argued that ending of the investigation on grounds of insufficient suspicion "did not constitute a material acquittal."


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