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In this article signed by Jon Landa, Sabino Ormazábal and myself back in February 2011, we maintained that presumption of innocence is a «fundamental human right» and a «penal-juridical maxim» that establishes the innocence of people as a rule. We also analyzed «Schadenfreude», the German term that designates the feeling of joy created by the suffering or unhappiness of others, how well it sells and how it is being used. And we also commented a series of judicial cases. We also said that in the confrontation between political parties, presumption of innocence was already back then «directly extinct».

Not so long ago the newspapers reported that one of the individuals involved in Operation Greyhound (a full-fledged operation by Spanish police against doping in sports) was found hanging from the ceiling in his home. One could come to the conclusion that he must have had a skeleton or two in his closet. Alternatively, one could also conclude that he simply could not handle the accusing fingers that were pointed in his direction, any longer.

Article 11 of the Universal Declaration of Human Rights very clearly stipulates that any person charged with a penal offence has the right to be presumed innocent until proved guilty according to law, in a public trial at which he or she is guaranteed proper defence. Presumption of innocence is, therefore, a matter of fundamental human rights and a penal-juridical maxim. Even when applying precautionary measures, judges and prosecutors must, not only consider this, but also apply it when considering action. In other words, until any individual is proven guilty before a court of law, the defendant is innocent; with all their rights intact including, of course, their right to image and honour.

Schadenfreude is the German word that designates the pleasure derived from the misfortune of others. In English, it is akin to the morose pleasure one would feel over an enemy’s misfortune.

We have all seen Schadenfreude at work, when, for example, we read leaked details of the judicial investigations under nondisclosure orders in media reports, details which otherwise we would have no knowledge of. And such media reports contain only those aspects of the proceedings that are incriminatory, leaving aside precisely those details that could be attenuating or even exculpatory. There is no respect for the right to privacy, nor sensitivity for the possibility that the accused could be a minor, nor for any other circumstance. The reason for this is that Schadenfreude sells.

In autumn 2009, Diego P.V. rushed his girlfriend’s daughter straight to the emergency ward in a hospital in Tenerife. A preliminary inspection revealed a cardiac arrest but, also, the girl had signs that indicated the possibility of abuse and ill treatment. She later died in spite of the efforts to bring her back to life. Diego P.V. was arrested under the suspicion of allegedly having been responsible for this situation. Fortunately for him, he would later be released without bail when it was proven that the cause of the little girl’s death was that she had fallen from a swing a few days before, and died from her injuries. However, during the brief period of time in which P.V was being investigated, Schadenfreude worked with unprecedented intensity. The man was innocent, but he was nearly lynched and the media immediately pronounced him guilty. What measures of redress has Diego P.V. had access to after such a regrettable incident?

In more recent events, the case of the newspaper Egunkaria (see note below) comes to mind here, in which the defendants were also not given their right of the presumption of innocence outside the courts –and, unfortunately, this often influences what is dictated inside the courts. In the end, the final sentence clearly stipulated that “the accusations have not proved that the defendants have the slightest relationship with ETA, with this alone, the accused were acquitted “with all the Court’s blessings”. And now, yet again, another similar situation has occurred with the members of Udalbiltza; as no relationship with ETA has been detected either.

It would be an interesting endeavour to seek out similar situations and cases within the Basque Country, where other individuals have been detained and later released without being charged, as well as those who have and were eventually condemned by a court. It would be equally noteworthy to study the coverage of the arrests and compare it with that of those that were released without charges.

And if we enter into the slippery terrain of party politics, it would be incorrect to say that the presumption of innocence in this arena is in danger of becoming extinct because in reality it has long since vanished. Unfortunately, as we have seen in many other cases, you can wave goodbye to the presumption of innocence if you become involved in a judicial case, which later is used as a bone of contention between parties outside the courts. Whether you are innocent or not does not matter in the least. Evidence of this is seen in case of Jorge Ibarrondo, a councillor in the town of Vitoria, who was condemned in September 2009. He was forced to pay a fine and was barred from public office for seven years because he awarded the building license for seven houses in an area where there was only room for six. However, in March 2010 he was acquitted by the High Court of Alava of the crime of breach of legal duty in urban planning, as the Court considered that the whole matter had an “infinitesimally small relevance”. Schadenfreude, here again, had bared its ugly face. A similar phenomenon is currently taking place, again, with regard to how the media is covering the cases of the two special commissions that are now being investigated in the Basque Parliament. As soon as details of one of the cases became public knowledge, guilt of the defendants had already been publicly decreed.

Human rights are not there simply for decoration. They are the objects of an international consensus of guiding principles that are to be respected in their entirety. Nobody can engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth in the Universal Declaration of Human Rights. Therefore, nobody, not even under the protection of the right of freedom of information or freedom of thought can suppress the right to the presumption of innocence. Schadenfreude is no excuse.

By Andres Krakenberger, Jon Landa and Sabino Ormazabal in representation of the Argituz Pro Human Rights Association.

Translator’s Notes: Egunkaria was the only Basque-language newspaper which was closed down under Aznar’s government under the suspicion of collaboration with ETA. Udalbiltza was an assembly of Basque municipal councillors of which there were two versions, one set up under the auspices of Batasuna and one under the auspices of the other Basque Nationalist parties. The former was also closed down under Aznar’s government under suspicion of collaboration with ETA.

Andrés Krakenberger, Jon Landa, Sabino Ormazabal, Argituz, Human Rights Association

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