Baltasar Garzón And The Politics Of Justice

Spanish judge Baltasar Garzón is a heroic figure who gained international notoriety in 1998, when he ordered the arrest of Chilean dictator Augusto Pinochet for the alleged deaths and torture of Spanish citizens.  Ten years later, he tried to fill a vacuum left by the Obama Administration by seeking to investigate whether six senior Bush administration officials, the 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.

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.