The well-known and high-profile Spanish judge Baltasar Garzón faces a private prosecution over his attempt to investigate crimes committed under the regime of Francisco Franco, which ruled Spain for thirty-six years following his forces’ victory in the civil war of 1936-39.
Garzón is accused on three separate charges of “malfeasance” for having exceeded his powers and contravened Spain’s amnesty law, passed in 1977 - two years after Franco’s death, and in the early stages of the country’s transition to democracy. Garzón himself and Spain’s state prosecutor appealed to Spain’s supreme court to dismiss the case against him, but on 31 January 2012 the judges on the court voted (by a four-to-three margin) to reject requests from both. This ruling is independent of the final ruling on the merits of the charges.
A prosecution of judges for malfeasance is very rare in Spain. 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 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. He drew on precedents set by the Scilingo case when the Argentine military officer Adolfo Scilingo was convicted by the Spanish supreme court for attempted genocide and other crimes committed during Argentina’s “dirty war” of 1976-83. The state prosecutor initially challenged that 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 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 detailed events that took place during and after the civil war, which involved alleged crimes such as extra-judicial executions, enforced disappearances and torture. He argued further that the amnesty law only applies to crimes “of a political nature”, meaning crimes with a political connection, and - on the grounds that crimes against humanity cannot be considered political acts - rejected the allegation that he had the intention to proceed in violation of the amnesty law in investigating these crimes.
Moreover, crimes against humanity are not limited in duration, they have effects that continue over 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 arrange 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”. This part of Garzón’s contribution was designed to address accusations of bias against him as a result of claims that he had, in response to complaints filed by right-wing victims’ associations, relied on procedural reasons to deny his competence to investigate crimes of the same era.
Judge Garzón concluded by stating that he had always respected the law; 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.
A question of responsibility
For some, the supreme-court 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 event, the legitimacy of Spain’s judicial system hangs in the balance.
So, too, does the global fight against impunity for international crimes. A conviction of Judge Garzón for a crime that amounts to an attempt to investigate mass atrocities will set a negative precedent and will be a setback in generating the will to pursue such prosecutions elsewhere in the world.
Reed Brody, legal counsel of Human Rights Watch, comments that Judge Garzón’s application of the principle of universal jurisdiction in the Augusto Pinochet case created 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 African states). 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 expressed support for Garzón. María Ángeles Siemens, local director of the UNHCR 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 defence of international law when the Spanish supreme court has refused 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, after all, the crimes of the Franco era are crimes against humanity. Spain has clear obligations in this regard under international law, he said.
Indeed, if a judge is not competent to investigate such crimes in Spain, who shall be competent to provide justice to victims of the dictatorship and the civil war?