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Spain: Justice for the judge?

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Sir Geoffrey Bindman QC, one of Britain’s most distinguished civil rights lawyers, has been involved with human rights in Latin America at least since 1974, when he travelled to Chile to be an observer at trials of former members of Chile’s Popular Unity government by thePinochet regime. The trials were never held, but Bindman met some of the prisoners. He also represented Dr. Sheila Cassidy and the disappeared prisoner William Beausire, both of them British victims of Pinochet’s secret police. In 1998 he had the satisfaction of representing Amnesty International in the House of Lords following the arrest of General Pinochet in London and the subsequent action to set aside Pinochet’s claim to diplomatic immunity.

 

 

The Garzón case  — A severe blow to the cause of international justice
by Sir Geoffrey Bindman QC       21 February 2012

The prosecution of Judge Baltasar Garzón in Spain sent shock waves through the international human rights community. Judge Garzón has long been idolised for his commitment to using his powers to seek justice for the victims of some of the most notorious human rights abuses of the modern era. The prosecutions allege misconduct in relation to three separate cases investigated by the judge in his own prosecutorial role. They have been brought by individuals who have long been opposed to what they regard as Garzón’s politically motivated exploitation of his professional authority.

Yet most of us regard him as a hero. Surely, the Spanish courts would not uphold these complaints? We now know the contrary. On 9 February, a court convicted him of illegally wiretapping conversations between remand prisoners and their lawyers in a corruption case involving members of the People’s party (PP) led by the prime minister Mariano Rajoy. The corruption case is based on allegations of the siphoning off of public money by PP politicians and corrupt businessman.

The sentence on Judge Garzón included his suspension from office for the period of 11 years. He is now 56 years old. Unless the suspension can be lifted or varied, this means the effective end to his illustrious career. Fortunately, the second of the three cases, alleging bribery, has been dismissed but the third, yet to be decided, is the most serious and the most controversial. It attacks Garzón’s investigation of the conduct of supporters of the late General Franco, some of whom are still living.

Reed Brody of Human Rights Watch comments on the verdict in the first case: “it looks like Garzón’s enemies got what they wanted… the criminal prosecution of a judge for his judicial actions undermines the independence of the judiciary. The accumulation of charges against him raises the appearance that they have been brought in revenge for his handling of cases involving vested interests.”

It is important to remember that the widespread esteem in which Judge Garzón has been held has been shared by the Spanish legal system itself which has been at the forefront in developing the concept of universal jurisdiction over human rights abuses. Thus it has been possible for Garzón to initiate proceedings in Spain against Pinochet for torture and other crimes carried out in Chile and for crimes against humanity perpetrated in Argentina.

Garzón is usually referred to as a judge or as a magistrate – and he has the status and authority of a judge – but his role is much closer to that of prosecutor in the British and American legal systems. In Spain the criminal law allows proceedings to be initiated in a variety of ways. There is a state prosecution service conducted by a public prosecutor and a team of subordinate prosecutors who are state officials. Examining judges or magistrates like Garzón may also initiate and manage criminal investigations independently of the prosecution service and prosecutions may also be initiated by private individuals. Ultimately all prosecutions are subject to the overriding jurisdiction of the Supreme Court.

Thus it has been a panel of supreme court judges which has been hearing the three present complaints against the judge. The complaint still ongoing concerns the deaths of opponents of the Franco regime – numbering about 114,000 – between 1936 and 1975. Like the Pinochet case, it seeks justice for the victims of a fascist dictatorship which perpetrated lethal violence against the supporters of democracy in defiance of human rights and the rule of law.

As in Chile, amnesty laws were passed in Spain to relieve Franco and his associates of responsibility for their crimes. Judge Garzón has successfully argued that such laws do not apply where victims have disappeared, as the crime of kidnapping and causing the disappearance is one which continues so long as the victim remains untraced. Many of the bodies of those victims are believed to be in unidentified mass graves.

Garzón used the same argument successfully in a Spanish court when he secured the conviction of Adolfo Scilingo, an Argentinian naval officer, who was imprisoned in 2005 after being found to have thrown drugged Argentinian prisoners out of an aeroplane into the sea. As in the Pinochet case, but unlike the current case concerning the victims of Franco, the Spanish court applied the principle of universal jurisdiction where the crime had occurred outside Spanish territory and where the accused and victims were not Spanish citizens.

However, in the Pinochet case Garzón did not have to rely entirely on the Spanish court because Pinochet was in the UK. He was able to persuade the Spanish government to seek the extradition of Pinochet to Spain where, had the extradition taken place, there could well have been some reluctance on the part of the Spanish court to accept jurisdiction to put him on trial.

As we are now seeing in the Spanish judiciary’s attitude to Garzón in the current cases against him, there are at best divided views about universal jurisdiction and about the approach to his professional responsibilities of Baltasar Garzón. It seems unlikely that previous cases, such as that of the Argentine naval officers will be re-opened. Garzón himself, however, is effectively denied all appeal, because the finding against him was by the Supreme Court, Spain’s highest judicial authority. Only a petition to the European Court of Human Rights could over-ride that court’s decision. The judge’s departure, if it is not reversed, will be a severe blow to the cause of international justice.

See also the letter ‘Garzón’s extraordinary contribution to law‘ signed by a group of prominent Irish human rights lawyers in the Guardian.