Spanish Criminal Cases Against Spanish Judge Baltasar Garzon

As we have seen in a prior post, Spanish Judge Baltasar Garzon was suspended from his judgeship in May 2010 after he was charged with a crime for allegedly exceeding his judicial powers when he initiated a criminal investigation of human rights violations during the the Franco regime. After these criminal charges were brought against Judge Garzon, he was hit with two other and apparently unrelated criminal charges.

We now examine these three criminal cases. In a subsequent post I will explore reactions to these cases.

Case Relating to Judge Garzon’s Franco-Era Investigation

In 2008 Judge Garzon approved a popular criminal complaint brought by groups of relatives of people allegedly killed and “disappeared” by the Franco regime in the 1930’s and 1940’s. The Judge in October of 2008 ordered exhumation of 18 mass graves and charged Franco and his associates of murder and disappearances of over 114,000 people. The Judge refused to apply a Spanish amnesty law that barred prosecution of any crimes of a political nature during the Franco era because under international law such amnesties are invalid fro crimes against humanity. The chief prosecutor, however, challenged this order as violating that amnesty law, and in late 1988 the Spanish Supreme Court reversed Judge Garzon’s order.

Thereafter two groups–Manos Limpias (Clean Hands) and Falange (the successor to Franco’s political party)–brought a popular criminal case against Judge Garzon for alleged prevarication (knowingly overstepping his authority) by refusing to apply the amnesty law.

The trial of this case opened on January 24, 2012, with a motion by Garzon and the public prosecutor to dismiss the case because of a doctrine in Spanish law that a criminal trial cannot be based only on a people’s complaint, especially when the public prosecutor also asks for dismissal, and because the judge in this case against Garzon had helped the attorneys for the private groups in amending their complaint to make it admissible. On January 27th, however, the Supreme Court, 4 to 3, denied the motion. (An article in el Pais said that four of the judges hearing this case were regarded as conservative while the other three are deemed to be progressive.)

The trial itself resumed on January 31st with testimony from Judge Garzon. On February 1st for the first time in history the court heard testimony from Franco-era victims and their families. Further hearings through early February are anticipated with a decision to follow.

Case Relating to Judge Garzon’s Authorization of Bugging                 Attorney-Client Communications

In this case Judge Garzon was accused of “prevarication” or “trespass” (knowingly making an improper decision) in February 2009 by approving police wire taps or bugging of attorney-client communications in a corruption investigation involving the political party of a former Spanish Prime Minister.

In the underlying corruption case, Judge Garzon was presented with evidence by the police that three of the men charged with corruption who were in pre-trial detention were continuing to launder money via third parties, including their attorneys, who visited them in prison. Judge Garzon, therefore, granted the police application for tapping these conversations. Subsequently the police edited the transcripts of those conversations to delete the portions about legal strategy for the upcoming criminal trials of the detainees before the transcripts were presented to Judge Garzon. Another judge was prepared to testify about his continuation of the taps with verification by two prosecutors, but this testimony was barred in the case against Judge Garzon.

This went to trial, January 17-19, 2012. We await the decision.

Case of Alleged Bribery of Judge Garzon

In the last of these three criminal cases, Judge Garzon is charged with bribery in his dismissal of a tax fraud case against a top executive of Spain’s Banco Santander. On February 3, 2012, Spain’s Supreme court indicted Garzon on this charge. The trail in this case has not been scheduled.

If there were such bribery, this would be a serious charge against the Judge. But it appears that neither the executive nor the bank paid anything to Judge Garzon personally.

Instead, the bank and New York University (NYU) were partners in a Strategic Collaboration on Global Education whereby the bank’s gift of Euros 300,000  to NYU financed selected NYU undergraduates’ foreign study, NYU graduate fellowships in Spanish creative writing, NYU student internships at the bank and NYU’s hosting international visiting faculty (presumably including Judge Garzon, who for nine months in 2005 held NYU’s King Juan Carlos I of Spain Chair and was a Fellow at the NYU School of Law’s Center on Law and Security).

Assuming the latter is a correct summary of the evidence, it is difficult for me to see how this is a valid basis for the criminal charges against Judge Garzon.

Conclusion

As a U.S. lawyer, I find these cases difficult to understand, especially through rough English translations of articles from a major Spanish newspaper, and I plead for comments by those more knowledgeable about Spanish law and procedure to clarify or correct my accounts of these cases.

At least the Franco-era case against the Judge is being tried by seven judges on the Supreme Court of Spain. This is contrary to U.s. practice as justices of the U.S. Supreme Court do not try cases, and almost all trials, criminal and civil, are conducted by a single trial-court judge. This Spanish procedure, therefore, seems strange and made me wonder whether the Judge would have any right to appeal any adverse decision in these cases.

Wikipedia says Spain’s Supreme Court has 74 judicial positions organized into five chambers, one of which is the criminal chamber. Presumably each chamber has 14 or so judges, potentially leaving seven other judges of that chamber to hear any appeal. An article in el Pais, however, said that crimes allegedly committed by individuals with privilege like judges are tried by the Supreme Court’s Criminal Chamber without any appeals.

Thus, I still wonder if Garzon has any right of appeal from an adverse decision. If not, this seems to me to be a denial of what we in the U.S. call due process of law.

Another feature of Spanish law and procedure that is difficult for this U.S. lawyer understand is the ability in Spain of private citizens or groups to act as criminal prosecutors, especially over the objections of public prosecutors. This does not happen in U.S. law with a few exceptions not relevant here.

If a U.S. trail court judge in a position equivalent to Judge Garson commits errors in the conduct of a case, as sometimes happens, the remedy is to seek appellate court review and reversal of the erroneous decisions. In rare instances, it might be appropriate to seek discipline of the judge by the agency that regulates their conduct under rules of judicial ethics. It is difficult, if not impossible, however, to imagine situations in which a U.S. trial court judge would be subject to judicial discipline or criminal sanctions for doing things similar to what Judge Garzon did in the first two of these cases in which he has been charged with crimes.

As I understand these cases, Judge Garson had legitimate legal reasons for doing what he did. He did not make decisions that totally “were off the wall,” to use an American slang phrase. Most significantly, in the Franco-era case, there is abundant international law that amnesties may not immunize people for genocide, crimes against humanity and war crimes (all of which are now well defined in international law). Therefore, Judge Garzon’s conclusion that Spain’s amnesty law did not bar the instigation of the criminal case regarding the Franco-era abuses was supported by law. There certainly are some counter arguments to this legal conclusion, but, in my opinion, they are weak.

I pray that Judge Garzon is acquitted of all of these charges and that he will return to the bench to continue to be an independent jurist who seeks to apply Spanish and international law in an objective and fair manner to crimes of the gravest concern to the international community.