Terrorism in Spain - Exchange of information between Law Enforcement Agencies and the Intelligence Sector on Terrorism

Meeting with Mr. Jesus Santos

Former Deputy Chief Prosecutor, National Court of Spain, Legal Attaché to the Spanish Embassy in Rome, UNICRI Scientific Advisor.

Turin, 27 February, 2008 – Mr Santos, former Deputy Chief Prosecutor of the National Court of Spain and Legal Attaché of the Spanish Embassy in Rome. As Deputy Chief Prosecutor in Spain, he was a pioneer in the UNICRI witness protection project, being one of the prosecutor's who was involved in the largest number of terrorist cases at international level (he reached an average of three investigations a week).

He is acting as Scientific Advisor to the UNICRI Security Governance/Counter-Terrorism Laboratory within the framework of the programmes: Security Governance in Post Conflict/Promoting the legacy of International Tribunals as well as in Witness Protection in terrorism cases.

He was invited by UNICRI to provide the Laboratory and other relevant UNICRI personnel with an overview of his experience in the “Exchange of information between Prosecution/Law Enforcement agencies and the Intelligence sector".
For this purpose, Mr. Santos decided to discuss the case of international judicial cooperation for the combating of terrorism in Spain.

Terrorism in Spain

“Spain is a very interesting case study in relation to coping both with the local separatist terrorism and the international jihads.
The Euskadi Ta Askatasuna (ETA – Basque Homeland and Freedom) started their terrorist activity in 1968. Since then, according to the Spanish Ministry of Interior official statistics, ETA has killed 818 persons since 1968 and more than 2000 have been wounded in almost 3500 terrorist actions.
Jihad terrorism struck Spain just once, in the well-known 11th March 2004 Madrid bombs, which alone killed 192 persons leaving around 2000 wounded. The attack was carried out on the eve of Spanish general elections, with a view to influence poll results.
Given the problems it needs to face, Spain is a country that needs to unite its efforts to combat terrorism.

ETA separatist terrorism investigations

ETA finances its activities both by legal and illegal means. Being able to piece together information on the financing means cutting a terrorist organisation’s ability to act.
Illegal means of financing can include extortion of entrepreneurs and other similar activities. It also previously included kidnappings, however, they suspended this means due to the high number of attempts foiled by the police.
Legal means include contributions from supporters, sales of products, and collecting revenues from recreational activities such as bingo. Financing from enterprise is the heart of the source of revenue. Spanish judges discovered that part of the revenues earned by a Caribbean travel agency, a fish seller and a newspaper were delivered to the ETA group.
A major problem emerged when ETA benefited from institutional financing: The Batasuna party - benefiting from government financing for having party status - was accused of being subordinate to ETA terrorist activities and eventually declared illegal.

Spanish investigations on Jihad terrorism

In the 1990s I started analysing international Jihad terrorist activities when – as Chief prosecutor of the Fiscalia de Audencia National - I conducted investigations on sleeping cells. Some groups were involved in credit card falsification and similar common crimes, but it was difficult to demonstrate that these activities were in preparation for terrorist attacks.
Then, in 2001 the presence of a jihad terrorist cell was discovered in Spain - abu dada (barakat yarkats) cell - and afterwards, it was demonstrated that a September 11th terrorist Mr. Mohamed Atta was connected to the group.
In 2004, only three weeks after the Madrid explosions, Spanish Police found in Leganés, south of Madrid, the apartment that was used as a base by the presumed culprits of the Madrid attack. While the police were surrounding the apartment, the affiliated, who locked themselves into the flat, committed suicide by setting off the explosive – which turned out to be the same type as the one used in the Madrid bombs. This eliminated the potential importance the executors’ testimonies could have had in a trial.
Now, four years after the Madrid attack, the Spanish Prosecutor's Office could have at his disposal two presumed material executor and two presumed intellectual creators of the Madrid train bombing. One of these last is Mohammed “The Egyptian”: thanks to the cooperation of Prosecutors of Milan as Mr. Mauricio Romanelli and Mr. Armando Spataro we obtained Mohammed “the Egyptian's” extradition and we could use his phone calls - recorded by the Italian police on Italian territory – as proof in the Spanish trial. Actually, the trial against him concluded stating that there wasn't enough evidence to affirm he was the international cell’s leader.

Spanish response

As it is evident from the above-mentioned experiences, two objectives have to be targeted for combating terrorism: intercepting its financial resources and creating stronger international cooperation against terrorism.
The initiative taken by Spanish authorities took a step in this direction when a Finance Watchdog Commission, responsible to the Ministry of Interior was created under 12/2003 Act. Commission’s resolutions are not penal judgements, but it has the power of blocking balances, bank accounts and capital movements. Its actions are non-sanctionary, precautionary measures.
In 2003 Spanish law was modified to insert the crime of collaboration with terrorism, under 12th May 12/2003 Act on the prevention and blocking of terrorism financing and its Organic act together.
The criminal law prescribes a punishment between 5 and 10 years to the accused, plus confiscation of money (crime of collaboration with terrorist groups).

The repentant figure
The insertion of the repentant figure( with a reduction for repentant terrorists, modelled on the Italian “pentiti di Mafia”) could be a good step, but in an organisation such as ETA it has proved to be quite useful, due to the organisation’s very hierarchical structure, and to the discipline demonstrated by its members. An example is the assassination of a former terrorist “Yoyes”: her partner killed her in a public garden when she was with her two year old daughter for her decision to collaborate with the police when jailed.
On the contrary, Juan Manuel Soares Gamboa, ETA Madrid Unit, represents a success repentant story. He escaped in Venezuela and from there he started collaborating with Spanish investigators, becoming the most important source of information Spanish authorities ever had regarding ETA rules, structures and objectives.
Among the other information shared, he revealed the details on a failed ETA attack against a general prosecutor of Spain. Gamboa himself had placed a car bomb in the planned place. But another ETA member, nicknamed “la tigresa” (tigress) for her sex appeal, who was supposed to activate the bomb, arrived late at the meeting because she fell asleep after a night spent with her partner. This saved the life of the prosecutor. According to Soares Gamboa another terrorist act planned in Zaragoza failed because ETA members’ car broke down.

International judicial cooperation and intelligence information sharing

These cases open also the issue of international judicial cooperation. When “la tigresa” eventually escaped in France, Spain asked for her extradition, but French authorities refused it believing that the request was motivated by political reason.
After the 2001 terrorist attacks though, there has been a change in governments’ attitude toward terrorism. A fruitful bilateral cooperation between French and Spanish authorities has been established through the creation of four mechanisms:

Immediate access to information, as the unofficial delivery – from French to Spanish authorities - of a terrorist’s personal agenda found in the south of France. Thanks to the information received by the agenda, Spanish authorities could solve a kidnapping case organised by ETA.
Temporal delivery for extraditions and detentions, rapid administration of justice: if a terrorist is found guilty and jailed in one of the two countries, once he will be released, if it is the case, he will be send to the other government’s authorities to respond to the accuses moved on that country.
Joint groups of investigation: Spanish police will be allowed to conduct an investigation on French territory, under the supervision of a French police authority, and vice versa. So far 11 such groups have already been created, especially focusing on drug trafficking. This kind of cooperation is extremely important, but it is possible only if the governments are fully cooperative. Italy, for example, has not yet ratified 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union and it has only recently ratified the Palermo Convention. Italy hasn’t even implemented the Convention on judiciary assistance linked to Schengen. At European level it is Eurojust that promotes the sharing of information and cooperation between judges. All these instruments are very important, and they should be applied in a multilateral way.

Intelligence sharing is a problematic issue concerning international judicial cooperation, because intelligence agencies aren’t usually willing to let the information they have collected be used in a trial.
For example, if the intelligence collected proves that a suspect has cooperated with terrorism, the passing of the information to the Prosecutor's office is not automatic. First of all, the intelligence board has to approve the delivery. Then, in order to be used in a trial, the proof needs to have been legally obtained. But how can you control how another states’ intelligence got the information and who obtained it?
Additionally, the defence attorney needs free access to that information. But seeing as they come from an intelligence source the access to such a data is again problematic”.

The opinions expressed in these reports are the sole responsibility of the authors concerned and do not necessarily reflect the views of the United Nations Interregional Crime and Justice Research Institute.