Bush Six, were responsible for "an authorized and systematic plan for torture" at Guantanamo. (See No Spain, No Gain) The torture investigation languished when Garzon was suspended after being charged with abusing his powers to investigate Spanish Civil War atrocities, and the case was assigned to another judge. As Pia Navazo writes below, Garzon's efforts to investigate killings of civilians during the era of General Franco’s dictatorship has made him a legal target, raising profound legal and moral issues. -- Lovechilde
By Pia Navazo, cross-posted from openDemocracy
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.
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.
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
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
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?