A prior post reported that on February 9th the Supreme Court of Spain, 7-0, convicted Judge Baltasar Garzon of prevarication (knowingly making an unjust decision) in the case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. Judge Garzon was sentenced to removal from the bench for 11 years plus a fine of Euros 2,500. The last post examined initial reactions to this conviction.
Further Comments on the Conviction Decision Itself
Before we look at additional reactions, articles in El Pais have provided more detail about the court’s decision itself. (The decision itself (en espanol) is available on the web.)
One commentator said this entire wiretap case was based on the interpretation of article 51.2 of Spain’s General Penitentiary Law (Ley General Penitenciaria) that allows prisoner communications to be monitored “by order of the judicial authority and in cases of terrorism” (“por orden de la autoridad judicial y en supuestos de terrorismo”). This commentator noted that other judges in non-terrorism cases–without controversy–had used this statute to approve monitoring of prison conversations.
El Pais reported that the court’s decision set forth the following seven reasons for the conviction:
- The right to defense was restricted without justification. The rights of the criminal defense are important to having a fair process. Therefore, any restriction of that right must be “especially” justified. In the underlying corruption case, there were no “data of any kind to suggest that the lawyers mentioned in the events were taking advantage of the exercise tested the defense to commit new crimes.”
- Judges are also subject to the law. It violates the rule of law when the judge, under the guise of law enforcement, serves only his own subjectivity. This case against Garzon is not an attack on judicial independence, but “a democratic requirement imposed by the need to criminally condemn” any conduct that “under the guise of law enforcement, frontally infringes the rule of law. Judge Garzon did not commit a “misinterpretation of the law,” but rather “an arbitrary act.”
- Judge Garzon had to have been aware of the unfairness of his decision to allow the monitoring of the conversations. The Judge’s use of the statute (51.2 of Spain’s General Penitentiary Law) could not be reached by any of the methods of interpretation of the rules permitted by law.
- The confidentiality of the relationship between the accused and his counsel is essential. The court cited the Court of Justice of the European Communities and the European Court of Human Rights to support the thesis that one of the fundamental requirements of a process is the defendant’s right to communicate with his lawyer without being heard by others.
- The limits of the right to confidentiality of communications of inmates are regulated by the General Penitentiary Law. This Law, as it stands, can only be applied to cases of terrorism and prior order of judge. To apply it in other cases requires an amendment to the law.
- There was not an error of interpretation, but an arbitrary act. Judge Garzon did not use any of the accepted methods that would have allowed restrictions to the right of defense. Therefore, Judge Garzon did not commit a “misinterpretation of the law,” but rather “an arbitrary act.”
- Judge Garzon’s approval of monitoring these attorney-client conversations puts Spanish criminal proceedings at the level of totalitarian regimes. The Judge’s approval is a practice today only found in totalitarian regimes in which all attempts to obtain information of interest to the state are valid “regardless of the minimum guarantees for citizens.”
Apparently the court made no mention that Garzon’s order to monitor the attorney-client conversations in a non-terrorism case was approved by two anti-corruption attorneys and by a judge of the regional Madrid High Court. None of these individuals was permitted to testify by the court in the case against Garzon.
Criticisms of the Conviction
A spokesperson for the U.N. High Commissioner for Human Rights stated “”judges should not be prosecuted for doing their job,” and that international law establishes “that amnesty should not be granted to perpetrators of crimes against humanity.” This individual also recalled that in 2009 the U.N. Human rights Committee had recommended that Spain should revoke its 1977 amnesty law as being inconsistent with international human rights laws.
The Argentine Human Rights Secretary said Garzon was not the person convicted, but rather the Spanish judicial system. The decision, he added, “bares . . . the black memory of Franco.”
Similar views were expressed by Argentina’s Mothers of Plaza de Mayo, who said it had filed a habeas corpus petition before the European Court of Human Rights to challenge the case against Garzón.
Newspapers around the world have criticized the conviction decision. The New York Times editorial stated, “Convicting a jurist over a court ruling is an appalling attack on judicial independence. . . . [The]decision by the Spanish Supreme Court to remove [Garzon] from the bench is enormously damaging to the prospects of fair and impartial justice.” Britain’s Guardian stated: Garzon’s “enemies celebrate the fall of a human rights defender.” France’s LeMond said the victims of Francoism lead the defense of the judge. The Argentine newspaper Clarin rejected the decision and quoted the son of a man who had been killed by Franco’s forces as saying the judgment had fallen “like a bomb there, here and around the world.”
A Spanish commentator expressed the opinion that the wire-tapping case was the most important and the strongest of the three criminal cases against Garzon and, therefore, was put on a fast track by the court. For Garzon’s critics and enemies, the commentator suggested, it would be poetic justice to convict Garzon for violating the basic rights of Spanish citizens, the presumably innocent lawyers, not their clients, the criminal defendants.
Defense of the Decision
The Spanish government continues its defense of the court’s decision to convict Judge Garzon. The Deputy Prime Minister said, “[A]ll judicial decisions are worthy of respect. All Spaniards must respect court verdicts, but even more so public representatives. When [such representatives] question the institutions, [they] are also questioning democracy – here and beyond our borders. I am appealing to their sense of responsibility. Spain is a democratic country. I am very worried about the image that some are trying to convey about a Spain that is not really Spain.”
Thee presidency of the Spanish Supreme Court itself and Spain’s General Council of the Judiciary issued a statement saying that the court acted “with absolute independence and impartiality.”
As a U.S. lawyer with no first-hand knowledge of Spanish law and procedure, I see this case on the surface at least of being primarily one of statutory interpretation, and as an outsider I can understand different points of view on that issue. Article 51.2 of Spain’s General Penitentiary Law (Ley General Penitenciaria) allows prisoner communications to be monitored “by order of the judicial authority and in cases of terrorism” (“por orden de la autoridad judicial y en supuestos de terrorismo”). One interpretation would be the one adopted by Spain’s Supreme Court: such monitoring is only permissible by court order in terrorism cases. The other interpretation would be monitoring is permissible (a) when ordered by a court in any kind of case; and/or (b) in terrorism cases with or without court order.
This kind of issue, however, is one to be resolved in the normal appellate review of trial court decisions, not in a criminal case against the trial court judge who made the initial decision on the issue.
This case along with the other two against Judge Garson are far from over. Anyone who is interested in human rights, judicial independence and the rule of law needs to be concerned about these cases and to be vigilant in seeking to protect these values in Spain and elsewhere around the world.