The upcoming trial of the Spanish judge Baltasar Garzón for investigating abuses from Spain’s past threatens the concept of accountability in Spain and beyond, Human Rights Watch said.
Garzón’s prosecution in a second case, for issuing a judicial instruction to intercept lawyer-client communications in a corruption scandal, raised questions as to whether the judge is facing retaliation for his actions in controversial cases.
“What bitter irony that Garzón is being prosecuted for trying to apply at home the same principles he so successfully promoted internationally,” said Reed Brody, counsel for Human Rights Watch. “Thirty-six years after Franco’s death, Spain is finally prosecuting someone in connection with the crimes of his dictatorship – the judge who sought to investigate those crimes.”
Garzón is scheduled to go on trial on January 24, 2012, for alleged criminal malfeasance (prevaricación) for investigating cases of illegal detention and enforced disappearances committed during the dictatorship of General Francisco Franco and the Spanish civil war, despite Spain’s 1977 amnesty law for “political acts” (actos de intencionalidad política).
Garzón’s decision not to apply Spain’s amnesty is supported by international law, which imposes on states a duty to investigate the worst international crimes and which considers “disappearances” to be a continuing crime as long as the fate of the missing has not been clarified. Indeed, the justice cascade touched off by Garzón’s historic 1998 indictment against Gen. Augusto Pinochet of Chile for the murder and torture of thousands brought down amnesty laws around the world.
In the other trial, which was apparently brought forward to begin on January 17, Garzón is accused of criminal malfeasance and the violation of constitutional rights. It relates to the interception of the communications of detainees in a massive corruption scandal, known as the “Gürtel,” involving figures in the now-ruling Popular Party.
Garzón ordered wiretaps on the conversations with their lawyers of the detained alleged ringleaders, on the ground that they were using the lawyers to launder the proceeds of the scandal. One lawyer has been indicted for money laundering. However the recordings extended to conversations with other lawyers not involved in laundering the proceeds.
In both cases against Garzón, the state prosecutor has opposed the criminal proceedings, saying that no crime was committed, but the cases have proceeded as private prosecutions and were accepted for trial by the Supreme Court, which alone can try sitting judges. In the Franco-era case, the plaintiffs are two pro-Franco organizations. In “Gürtel,” they are the lawyers and detainees whose conversations were recorded.
Garzón was suspended from his duties in 2010 after the Franco-era case was set for trial.
The “Gürtel” case against Garzón was accepted for trial by the Supreme Court in February 2010, nine months after the Franco-era case, in May 2009. A recently-retired Supreme Court judge, among others, told Human Rights Watch that he believed that Garzón’s enemies in the judiciary leap-frogged “Gürtel” so that the more controversial Franco-era case against Garzón would be held in its shadow. El País said the Franco-era case became “strangely frozen” in time, a reference to the delay in bringing it to trial.
Human Rights Watch has not taken a position on whether the recordings were lawful or could be justified. But the extreme measure of a criminal prosecution, over other possible sanctions, did not appear warranted. Prosecutions of judges for prevaricación are almost unheard of in Spain, Human Rights Watch said.
United Nations special rapporteurs on the independence of judges and lawyers have held that judges should not be prosecuted for their judicial decisions absent the most exceptional circumstances and that “[i]n order to protect judges from unwarranted persecution…it [is] essential that judges also be granted some degree of criminal immunity.” These UN experts have concluded that “judges must not be removed from office because of errors in judicial decisions or because their decision has been overturned on appeal or review by a higher judicial body.”
“Absent clear and compelling circumstances, prosecuting a judge for his judicial acts undermines judicial independence,” Brody said. “Many undemocratic rulers would love to use criminal sanctions to silence judges whose work challenges vested interests.”
In addition to the Pinochet case, Garzón has taken up cases relating to abuses in a number of countries. Adolfo Scilingo, an Argentine naval officer charged by Garzón with the murder of political prisoners during the country’s military dictatorship, is serving a 30-year sentence in Spain. Garzón’s request to Mexico led to the extradition of Ricardo Miguel Cavallo, another former Argentine military official. Cavallo was extradited to Spain in 2003 and was eventually sent to Argentina to be tried by Argentine courts.
More recently, in April 2009, Garzón accepted a complaint filed by civil parties and initiated a criminal investigation into the alleged abuse of four Guantanamo detainees with ties to Spain. Diplomatic cables divulged by Wikileaks reveal that US officials privately and repeatedly attempted to influence Spanish prosecutors and government officials to curtail the investigations and to have them taken away from Garzón, considered by the US Ambassador to Spain, Eduardo Aguirre, Jr. to have an “anti‑American streak.”