To focus the matter will start saying that an Islamism text, a sort of manual, found in the Leganes suicides apartment teaches terrorists how to deny their implication in the 11-M attacks. This may be the reason why many defendants are following the so-called “STRATEGT OF SILENCE”

One of the documents found includes guidelines such as:

Try not to answer. Insist on saying that you have nothing to do with such group or person. You need to be firm despite evidences, policemen accusations or confessions because you can deny them and beat about the bush so you can avoid the question with honor; on the other hand, confessing will be your conviction (…) Your confession in front of the judge will be the best evidence against you, don't let anything make you confess (…) You must also remember that the examination and torture always have an objective and it's up to you weather to behave like a miserable coward and a traitor or to be a hero(…) Mujahidins must never disappoint or betray his brothers (…). Partial confession is the beginning of total confession, the beginning of the end. “You should not yield, you must keep everything secret”.

Another important “guideline” is:

“If, for any reason, you cannot deny your relation with the evidences found, you don't have to confess their source or their objective. But we can assure you that6 if you try, you will be able to find an excuse for having them and deny they belong to you. “You must be stubborn and unyielding”.

And “luckily”, for the islamist defendants, Spanish law has constitutionalized the right of defendants not to testify against themselves and not to plea guilty. In effect, ARTICLE 24 OF THE SPANISH CONSTITUTION states that:

1. Everybody has the right to be protected by judges and courts to exercise his rights and legal interests avoiding defendlesness.
2. Defendants shall enjoy the right to have a Judge legally chosen, to have assistance of counsel, to be informed of the accusation against him, to a public, speedy and fair trial, to use evidences to defend himself, not to incriminate himself, to plea not guilty and to the presumption of innocence. The law specifies the cases in which a person is not obliged to testify due to professional secrecy or kinship.

However, this statement does not mean the judge cannot assess the defendant's silence. In our criminal procedure act the judge does not have to weight the evidence by statute, on the contrary, the judge must apply his good judgment.

See:

Article 741 of the Spanish Criminal procedure Act explicitly determines:

The Court, after weighting the evidences presented, the reasons exposed by the defense and the accusation and the depositions of the defendants, will sentence in accordance to the law.
Whenever the Court exercises its good judgment, to decide the crime and the punishment, it shall explain if it has taken into account the judgment principles that it is legally obliged to take into account.

The drafting of proved facts of the sentence is an obligation of the sentencing Court, which will have to make it according to its knowledge about them, as it must only consider proven facts those facts that it has analyzed and be sure that they are proven. It must do so in order to be able to qualify the crime, although it is not necessary to give all the details that the parties might consider necessary to describe the facts because it is not sure of them being sufficiently proved or because it considers they are not necessary to qualify the crime. The weighting of evidences is a procedure that is an exclusive competence of the Court ( SSC Sala 2ª, S 14-11-2003, nº 1541/2003, rec. 1222/2002. Pte: Puerta Luis, Luis Román)

The Court is entitled by law to weight the silence of the defendant and so the fact that the defendant does not give an exculpatory version of the facts.

The Supreme Court has stated in the sentence 30-12-2004:

In relation to the denial to testify, this Court in it s sentence 20.9.2000would like to remind that in the cases Murray 8.6.96 and Landrome 2.5.200 and in case law of the European Court of Human Rights 137/98 de 7.7 y 202/2000 de 14.7, “we cannot state that the defendants refusal to testify in a criminal case does not have any implication as for the weighting of evidences. On the contrary, we can say that his decision not to verify the version of the facts given by the defendant should always be taken into account by the Court. The legal and necessary weighting of the defendants silence ratifying what has already been proven … is a situation that clearly requires an explanation of the defendant about the accusation evidences, so common sense tells us that not giving this explanation implies that there is no explanation possible and therefore the defendant is guilty.”

This Court has repeatedly stated in (s. 12.9.2003, 31.10.94) and many other sentences that: If a defendant testifies in the hearings and has also testified in a different part of the procedure, such as in the police investigation or before the magistrate, the sentencing court can give credibility to any of the depositions, as a whole or to some parts of them according to the principle of appreciation, and it can sentence taking into account any of the depositions according to their credibility (art. 741of the criminal proceedings act. ), if the formal requirements are met: 1st that such depositions respect the procedural rules applicable to them and 2 nd that they have been generally included (that is not specific details) in the hearings and therefore the parties have been able to examine them.

About this last requirement, if the deposition used was not stated in the hearings but prior to it, the procedure in art. 714 of the criminal proceedings act must be followed. That is, reading prior depositions and asking the defendant to explain the differences and contradictions. This article is applicable both for the depositions asked by the defense and by the prosecution.

However, this requirement must not be interpreted strictly. That is, we must not understand that if art. 714 is not respected, it is not possible to take into account any information prior to the hearings as it is enough if they have been somehow taken into account in the hearings which can be proved through the questions and answers. What cannot be done is to include in the sentence the data obtained prior to the hearing without giving the parties the opportunity to examine them.

If those two requisites are met the Court is free to determine the facts using the circumstances or data in any of the depositions. This selection cannot be revised by the Supreme Court or the Constitutional Court as these instances can only verify if there are enough evidences to be sure the defendant was not found guilty without following the rules stated by the Constitution and the Law and they cannot weight these evidences as thus is competence of the sentencing court”

We must also look at the Supreme Court sentence of December 5 th 2006:

About the defendants refusal to testify in the hearings, the defendant appeals the decision because of the 5 th legal principle in the sentence, pages 19 and 20 of the sentence:
".... The complete silence of all the defendants in the hearings, who refused to answer any question, ratifies the result of the analysis of the evidences presented …” The Court analyses the case law from the Constitutional Court, of these Court and of the ECHR.

The reason of the court is absolutely correct, the defendant was not convicted due to its silence but due to the existing evidences. From the silence of the defendant it can be understood that there is no other possible explanation but the one offered by the accusation evidences as he could have contradicted them and he refused to do it, and so, his silence ratifies these evidences.
We also bear in mind the sentences of the ECHR in the cases Murray, Averil and Condron.

“.... It is obviously incompatible with these rights to convict the defendant only on his silence or refusal to testify. On the other hand, this court thinks it is also obvious that such rights cannot and must not avoid, when an explanation is clearly necessary, considering the defendant's silence as a ratification of the evidence presented by the prosecution…”.

The Constitutional Court in its sentence 202/2000 of July 24 also states:

".... The right to remain silent can only be considered breached after analyzing the specific circumstances of the case, and according to them, t is justified to extract negative consequences of the defendant's silence, if, having accusation evidences, an explanation from the defendant is necessary…”.

This sentence, in relation with the defendant's appeal due to the use of her refusal to testify against her, continues:

".... In this case we cannot say that the sentence appealed is free of logic reasoning, as the sentence is not only based on the defendant's refusal to testify. Contrary to what the defendant claims, there have been other evidences that prove the existence of a crime…”

Finally, we3 can quote the sentences 976/2002 of May 24 th , 205/2004 of February 18 th , 359/2004 of March 16 th , 1440/2004 of December 9 th or 558/2005.

The defendant was not convicted for exercising a ius tacendi right, given by the law, but for the accusation evidences. His silence only reinforced the credibility of the Court on the evidence, so the defendant did not have any bad consequence for exercising his rights (SSC 985/2005 of July 7 th ) We can understand from it that without taking into account the defendant's silence, the sentence would have been the same. Weighting the defendant's silence is clearly a dispensable and unnecessary piece of information and in those cases it can confirm the evidences.

The sentence from the Supreme Court 927/2006 of October 10th (which confirms the conviction of the defendant, who after confessing he is guilty in the police station, refused to testify in the magistrate's office and in court) understands that the defendant's silence or evasive answers if he had confessed being guilty before, is information that can be judged as evidences against him in the context of other evidences, as his silence can be understood as a confirmation of the incriminating evidences. We must take into account that not all the judges agreed on the weighting of the defendant's silence.

Its legal foundations take into account the sentence 830/2006 of July 21st the court, talking about terrorism stated the following:

In cases like this one, in which the defendants silence is not by itself the base of conviction but it complements the true evidence, which is in this case the deposition of a codefendant, a prior deposition, that was not changed in the hearings, can be taken into account.

The sentence of the Supreme Court of November 14 th states:

“The refusal to testify in the hearings allows the application of art. 714 of the criminal proceeding act (SSC of February 6 th ), it is illogical to read prior depositions if the defendant is nor present, and not being able to do it if he is present but refuses to testify.
In this sense, the court has stated “we cannot state that the defendants refusal to testify in a criminal case does not have any implication for the weighting of evidences. On the contrary, we can say that this decision not to verify the version of the facts given by the defendant should always be taken into account by the Court. The legal and necessary weighting of the defendants silence ratifying what has already been proven … is a situation that clearly requires an explanation of the defendant about the accusation evidences…” (Vid SECHR Case Murray 8.6.96 and Case Condrom 2.5.2000 and SCC 137/98, July 7 and 202/2000, July 24).

The defendant's silence when exercising a right can be weighted if the accusation evidences require his explanation of the facts. His silence can be understood as a confirmation the incriminatory content of other evidences.

This criterion is also based on case law from the Constitutional Court according to which if there are objective evidences presented by the prosecution, the refusal to explain the facts exercising the right to remain silent can be used by the judge to base the conviction unless the reasoning was arbitrary. (CC 220/1998, FJ4) or if it was only based on the decision of the defendant to remain silent. So, without questioning the refusal to testify, the conviction is based on other evidences that the defendant has not questioned and as the legal weighting of evidences is reasonable, there is nothing to appeal about (SCC of July, 24 2000)”.

In case law from the ECHR quoted in the sentence of May, 8 2003:

“The European Court of Human Rights in Murray against the United Kingdom, 08/02/96, stated that if the defendant does not give any alternative explanation, we can understand that there is no alternative explanation. That means that besides the defense statements, the silence of the defendant is also taken into account as a confirming element. (SSC918/99, 554 and 1755/00 or 45/03). It is obviously impossible to base the conviction on exculpatory statements of the defendant even if they are illogical or implausible, and the same applies to his silence. But if there are other evidences, they can confirm or reinforce them. SSC

1443/0 on cases Murray and Condrom and case law from the Constitutional Court (SCCISCC 202/00),”the defendant's silence when exercising a right can be weighted if the accusation evidences require his explanation of the facts. However, his silence can be understood as a confirmation of the incriminatory content of other evidences”.

Despite all this, we must not forget the rationale of the judge that disagreed with the sentence 927/2006, honorable Mr. Perfecto Andrés Ibáñez:

I disagree only in the case of Juan Ramón, as the bases for his conviction come from: a) his confession in the Police Station; b) the deposition of the Codefendant Echaniz. So, a) the treatment of this deposition by the Audiencia Nacional and most of the Court of Appeal, is clearly a misuse of art. 714 of the Criminal Proceedings Act, that states that, if the parties ask, the deposition of the defendant in the magistrates office to be read, to highlight possible contradictions and require an explanation, as a mean of assessing the credibility of the defendant's deposition in court. In accordance to that article it is clear that only the defendant's deposition in the magistrates office can be used to assess the defendants deposition. So, the content of police investigations cannot be presented in court by reading them in accordance with art. 714 or art. 730 (SCC February, 23 1995 and SSC September, 20 1993). (...)

And finally: as said in the Supreme Court sentence of September, 26 2006, the behavior and corporal movements of a witness can not be taken as signs of credibility of the witness.