Commentary on the Spanish Criminal Cases Against Judge Garzon

A prior post summarized the three pending criminal cases against Spanish Judge Baltasar Garzon.

This month has seen significant developments in these cases. On February 8th, the trial of the Franco-era case ended with Judge Garzon telling the court that he was motivated by “the helplessness of the victims.” The decision in that case is still to come. On February 9th, Judge Garzon was convicted of the charges involving his approval of wire-tapping attorney-client communications. On February 13th the court dismissed the case about the Judge’s alleged bribery by Banco Santander.

Now I have further commentary about these cases.

Reaction to the Criminal Charges Arising Out of the Franco-Era Investigation

The case that has drawn the most attention is the one with respect to Judge Garzon’s investigation of Franco-era human rights violations.

This case against the Judge has been severely criticized by the major Spanish newspaper, El Pais, which proclaimed that the case was reckless for “being charged . . . with apology for and defense of a dictatorial regime of cursed memory for many Spanish people. it also has a tone of provocation and insolence, which is hard to accept in democratic Spain. . . . The overtly fascist ideological tone of the legal action has contaminated the proceedings from the start, and is causing serious damage to the international image of Spain.”

Spanish citizens supporting the Judge have demonstrated in front of the Supreme Court building with signs saying “Stop the Persecution of Judge Garzon.” This obviously is only one segment of Spanish society which still has deep-seated divisions over its Civil War of the 1930’s.

Similar criticism has been leveled by international human rights organizations and leading newspapers. Amnesty International said this case was “a threat to human rights and judicial independence.” Human Rights Watch had similar harsh words: the case “threatens the concept of accountability in Spain and elsewhere.” The International Commission of Jurists said this case was “an attack against one of the pillars of the rule of law.” An author in Dissent said the main purpose for these charges was to “silence . . . those who’ve dared give voice to memories of political abuse and those who might pursue universal jurisdiction.” In the U.S. a New York Times editorial observed that this case was “a disturbing echo of the Franco era’s totalitarian thinking.”

Moreover, these charges against Garzon have spawned at least two collateral proceedings.

In March 2011 a British human rights organization, Interights, filed a complaint with the European Court of Human Rights asserting that under international law there could be no valid amnesties or statutes of limitations for crimes against humanity, that Judge

Garzon could not validly be punished for his reasoned interpretation of law and that the charges against Judge Garzon were threats to judicial independence. The European Court, however, is unlikely to take any action on this complaint for many months.

The prior year, May 2010, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights and nine other human rights organizations filed a complaint with the U.N. Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers (and five other U.N. special rapporteurs and working groups) alleging that these criminal charges against Judge Garzon were an improper interference with the Spanish judiciary. I have not been able to find any action or report about what these U.N. entities have done, if anything, with respect to this complaint.

It should be noted that this May 2010 complaint to U.N. entities was submitted before the WikiLeaks disclosure of the U.S. diplomatic cables about U.S. efforts to stop Spanish criminal cases against U.S.officials, and there was no allegation in this May 2010 complaint that the U.S. or Spanish officials improperly caused the criminal charges against Judge Garzon to be made.

As reported in prior post, on January 19, 2012, two of these same human rights organizations–the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights–alleged that U.S. and Spanish senior governmental officials improperly had attempted to interfere with the Spanish judges handling three criminal cases against U.S. officials. The asserted bases for the allegations were U.S. diplomatic cables released by WikiLeaks; these cables are now available on the web. The allegations themselves were set forth in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. However, this recent complaint to the Special Rapporteur does not allege that the U.S. or Spain or both improperly had instigated the criminal charges against Judge Garzon. Perhaps the unstated hope of this complaint is that the Rapporteur would uncover evidence of such an improper attempt.

The absence of such a direct accusation in the recent complaint to the Rapporteur is significant, in my opinion, because simultaneously with filing of that complaint, the Center for Constitutional Rights and the European Center for Constitutional and Human Rights along with seven other human rights organizations released a joint statement supporting Judge Garzon on his investigation of crimes related to the alleged crimes of the Franco regime. The statement asserts that application of international law to such crimes as was done by Judge Garzon does not constitute judicial malfeasance under Spanish law. Indeed, the joint statement elucidates the international law against the validity of amnesties for genocide, crimes against humanity and war crimes. But the joint statement did not allege that this criminal case against the Judge was the result of improper actions of U.S. or Spanish officials.

Reaction to the Other Two Criminal Cases Against Judge Garzon

There has been considerable commentary about the Judge’s conviction in the tapping of attorney-client communications that has been discussed in posts on February 10th and February 11th.

The El Pais editorial about the conviction should also be mentioned. It said that the Supreme Court’s rationale was  “hair-brained, absurd and even offensive.” This rationale asserted that Judge Garzon sought to weaken the suspects’ “defense strategies” to such a degree as to place “the Spanish penal system on the same level as that of totalitarian regimes.” That absurdity of this rationale was shown by the facts that the wire taps were sought by the Office of the Public Prosecutor, were maintained by another judge who replaced Judge Garzon in the corruption investigation and were initially approved by the Madrid High Court. Absurd though it was, the rationale served the Supreme Court’s “objective: eliminating Garzón as a judge.”

The dismissal of the third case involving alleged bribery of Judge Garzon makes it unnecessary to make further comment on that case.

Conclusion

The criminal cases against Judge Garzon are very important. First, they are obviously important for the Judge personally. Second, they are important, in my opinion, for the independence of Spanish judges from internal (or external) political opposition to judicial decisions. Third, they are important around the globe for judicial enforcement of international human rights.