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Spain/Germany/Switzerland: Trumped-up charges, extradition, preventative custody and plea bargaining

01 March 2005

Case 10/95, involving the German defendant Gabriele Emilie Kanze, who was charged of collaborating with an armed group (ETA’s Comando Barcelona) and for whom prosecutors demanded a 28-year prison sentence before reducing their demand, was tried in the Audiencia Nacional (a court that has exclusive competence for terrorist offences) on 29 November 2004. The case began in 1994, when Spain issued an international arrest warrant against Kanze following searches conducted in two flats used by the ETA cell in Barcelona, one of which she had been responsible for renting in the summer of 1993, shortly before returning to Berlin. She was arrested in Germany before being released following an extradition procedure in which a German court refused to extradite her due to lack of evidence of the offences of possession and storage of weapons for the ETA cell. German courts did not have competence to initiate proceedings into the offence of cooperating with an armed group, because national legislation only pursued domestic terrorism at the time. She was later arrested at a border point when travelling to Switzerland on 14 March 2002 and Spain requested her extradition, which was granted by Switzerland in January 2003, although Kanze filed an appeal to prevent her extradition based on the risk of her being tortured, which was turned down by the Swiss Federal Court, which also argued that it would be up to a Spanish court to examine the merits of the case.

Kanze spent ten months in detention in Switzerland before her extradition, and a further year and ten months in prison in Spain before her case was heard in the Audiencia Nacional. It emerged during the trial that Kanze had been out of the country for several months before the weapons cache was found by police and that the charges of possession and storage of weapons and explosives were unsubstantiated, leading the prosecution lawyers (one representing the state, and the other representing the Asociación de Victimas del Terrorismo, AVT, Association of the Victims of Terrorism) to withdraw them, and to reduce the length of the sentences that were requested (originally 22 years by the public prosecutor and 28 years, 14 for each of the offences, by the AVT lawyer). The prosecutors lowered their request further, to two years and eight months, as result of a deal that was struck with the defence, after arguing that Kanze had rented the flat (which they considered to be evidence of her collaboration with ETA) because of her “sentimental relationship” with her partner Benjamín Ramos, who she later married. Kanze admitted renting the flat, but denied any association with ETA, or knowledge that her partner was involved in the activities of the so-called Comando Barcelona.

At a press conference held on the day after the trial by the “Commission to monitor the trial of Gabriele Kanze in Spain”, which travelled to Madrid to monitor the trial because of “concern over whether they could expect Mrs Kanze to receive a fair trial before Spanish justice”, a number of concerns were raised in relation to the trial. Firstly, they expressed the view that without the presence of the delegation and of the German consul, the defendant may not have been offered the deal that was struck. They added that “justice was not done” in the trial, because there was a lack of evidence against Kanze, but that nonetheless, the most important thing was that she was free. The defence lawyer, Jone Goirizelaia, argued that in spite of her admission that she had rented the flat, Kanze had not admitted to charges of collaborating with an armed group, in spite of being found guilty. She claimed that the reason for accepting the deal was the long period of detention that Kanze had already experienced, the length of the sentence that the prosecutors initially requested, and the risk that the Audiencia Nacional could have found the defendant guilty on the basis of evidence that may have been