The Spanish Supreme Court this week rejected Judge Baltasar Garzóns request for dismissal of the private prosecution against him. As Pia Navazo reports, Judge Garzón is far from alone in his struggle to defend his attempt to investigate crimes of the Franco era.

In a majority decision of four to three, the judges on the Spanish Supreme Court rejected this week requests from both Judge Baltasar Garzón and Spain’s State Prosecutor to dismiss the case against Garzón. This ruling is independent of the final ruling on the merits. Judg Garzón is accused of malfeasance in having exceeded his powers when declaring his competence to investigate crimes of the Franco dictatorship and the Spanish civil war, in alleged contravention of Spain’s 1977 Amnesty Law, passed during the country’s transition to democracy and still in force.

Prosecuting judges for malfeasance is very rare in Spain, but as reported here earlier, Judge Garzón faces this charge in three separate cases proceeding at the Supreme Court. It is equally rare for the State Prosecutor to support a defendant’s request for dismissal. Still, the Supreme Court dismissed the arguments put forward by Judge Garzón on the grounds that “they didn’t have sufficient weight”. As a result, the private prosecution of Judge Garzón was allowed and the trial began immediately.

Judge Garzón told the court that he did what he felt compelled to do in pursuing the investigations, drawing on precedents set by the Scilingo case. In that case, Argentine military officer Adolfo Scilingo was convicted by the Spanish Supreme Court (the same Court today trying Garzón) for attempted genocide and other crimes committed during Argentina’s Dirty War in the 1970s. In Scilingo, the State Prosecutor initially challenged the investigation but changed its position and supported the case on the basis that the crimes being investigated were crimes against humanity. At the time, the Spanish Supreme Court affirmed the judge’s obligation to investigate facts that could amount to such crimes.

Judge Garzón argued that he had received reports regarding facts that took place during and after the civil war, facts concerning alleged crimes such as extrajudicial executions, enforced disappearances and torture. He argued that the Amnesty Law only applies to crimes “of a political nature”, meaning crimes with a political connection. Garzón rejected the allegation that he had the intention to proceed in violation of the Amnesty Law in investigating these crimes, arguing that crimes against humanity cannot be considered political acts. Crimes against humanity have effects that continue over time, and are not limited in time. Judge Garzón pointed out that forced disappearances were crimes which had a “permanent” and ongoing effect as long as no bodies have been found in part because this prevents relatives from their right to give a proper burial.

Judge Garzón reiterated that he sought only to defend victims’ rights to truth, justice and reparation. He denied all accusations of political bias or ideology in accepting the case. It is not a matter of ideology, he said, that “There were hundreds of thousands of victims whose rights have not been addressed”. In this, Judge Garzón, known to be close to the Spanish political left, was addressing the accusations of bias arising from allegations that he had earlier relied on procedural reasons for denying his competence to investigate crimes of the same era in response to complaints filled by right-wing victims associations.

Judge Garzón concluded by stating that he had always respected the law and that he took his decision based upon respect for both the national law of Spain and international laws governing human rights – he cited several precedents of the European Court of Human Rights in particular – and that he did so by following an acceptable and defensible line of interpretation.

Judicial Politics

For some, this week’s ruling to allow the trial to proceed must be seen as a concession by the court to Judge Garzón’s multiple enemies, both political and judicial. Others argue that it is imperative to be clear whether he has indeed committed a crime of judicial malfeasance. In any case, the legitimacy of Spain’s judicial system hangs in the balance.

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So, too, does the global fight against impunity for international crimes. A conviction of Judge Garzón for a crime that amounts to trying to investigate mass atrocities will set a negative precedent and will be a set-back in generating the will to pursue such prosecutions in other parts of the world.

Reed Brody, legal counsel of Human Rights Watch, told Democracy Now that Judge Garzón’s application of the principle of universal jurisdiction in the Pinochet case generated the so called “Garzón effect”: a justice cascade that empowered victims all over the world to challenge transitional arrangements, including amnesties in different countries (such as Uruguay, Argentina Guatemala, and several countries in Africa). The effect was to force courts to confirm that the obligations of a country to investigate mass atrocities cannot be extinguished by amnesty laws or the passage of time. The irony, says Brody, is that Judge Garzón is being prosecuted in Spain for trying to apply the principles that he successfully promoted internationally.

In Spain, lawyers and human rights activists reacted in support of Judge Garzón. María Ángeles Siemens, UNHCR Director and President of the Civil Rights Association said that “victims’ right to reparation is a part if international law and international law on human rights. In Garzón’s trial, what is being discussed is not simply the case itself, but a defense of international law when the Spanish Supreme Court has rejected to hear the victims.” Manuel Ollé. President of the Spanish Association for Human Rights, said it was incomprehensible that a judge could be prosecuted when the crimes of the Franco era are crimes against humanity. Under International law, he said, Spain has clear obligations in this regard.

If a judge is not competent to investigate such crimes in Spain, who shall then be competent to provide justice to victims of the dictatorship and the civil war?

Pia Navazo

Image: elfer