Argentina’s Exercise of Universal Jurisdiction Thwarted by Spain

An Argentine court has invoked universal jurisdiction over a case brought by relatives of people who were victims of torture and other crimes committed in Spain during the Spanish Civil War (1933-1939) and the Franco regime (1939-1975).[1]

In September 2013 the Argentine court issued an international warrant for the arrest of four suspects in that case. Two of them are residents of Spain; the other two are deceased.[2]

Spain’s High Court’s Denial of Extradition

One of these suspects who lives in Spain, Jesús Muñecas, earlier this month appeared in Spain’s High Court to contest the Argentine court’s request to have him extradited to Argentina to face charges that while a Spanish Civil Guard captain in August 1968, he tortured and beat an individual at a Spanish prison. Muñecas’ opposition to extradition was supported by the Spanish prosecutor on the ground that the statute of limitations had expired on these charges.

On or about April 25^th Spain’s High Court denied the extradition request. It said the Argentine charges did not reveal any facts that could be construed as genocide – a crime without a statute of limitations – and that even if torture were proven, Spain’s 10-year statute of limitations for torture had expired and, therefore, barred the case.

Spain’s High Court’s Invitation to Argentina To Start a Case in Spain

 In denying extradition of Senor Muñecas, the High Court added that Argentina could try to get the case opened in Spain. According to the High Court, “This would give the victims the possibility to access proceedings and, in some way, satisfy their desire for justice.”

This invitation is utterly disingenuous and ironical as shown below.

Previously Spain’s High Court had opened a criminal investigation of certain crimes committed during the Spanish Civil War and Franco regime, but the investigation was quashed in May 2010. Simultaneously the judge who initiated that investigation, former High Court Judge Baltasar Garzón, was charged with a crime for doing so and suspended from his judicial service.

In February 2012, this criminal case against Garzón was dismissed when Spain’s Supreme Court decided that he had not abused his judicial power in initiating the investigation even though, according to the Court, he had overstepped his authority and “exceeded himself in the interpretation of the law” in doing so.

In the meantime, however, two other criminal cases were brought against Garzón.

One of these prosecutions resulted in his February 2012 conviction for prevarication (knowingly making an unjust decision) in a case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. For this conviction, Judge Garzón was removed from the bench for 11 years and fined Euros 2,500.[3]

These three criminal cases against Garzón and his conviction in one of them have been widely condemned as motivated by the Spanish government’s desire to punish him for his Franco-era investigation as discussed in posts of February 10, 11 and 14, 2012.

One of the criticisms of his conviction came from the European Magistrates for Democracy and Freedom (EMDF), an organization with 15,000 members from 11 states of the European Union. They petitioned the Spanish courts for a pardon of Garzón because the organization believes his conviction and sentence affects the entire international judicial community and runs the risk of limiting judicial independence, especially in countries trying to construct a democratic system of justice. Judges must have the freedom to render their own legal interpretations, said this organization, and the Garzón case could be used to curb judges’ independence and autonomy.

In late February 2014, Spain’s Supreme Court opposed the EMDF’s petition for such a pardon on the ground that it did not satisfy certain legal criteria. The court also said it was inappropriate to reinstate Garzón as he maintains that he was within his rights to order the recordings of the attorney-client communications. Said the court, “In the request there is no indication that he has expressed remorse, and this court is not aware of his having done so.” Moreover, according to the court, Garzón had displayed “indifference” to his suspension “as a way of reaffirming his position prior to the sentence.”

Now Spain’s Ministry of Justice will make the final decision on the request for pardon. As of April 27^th, the prosecution apparently had advised the Ministry that there were no reasons of justice, fairness or public interest to grant such a pardon.

Meanwhile in reaction to the Supreme Court decision opposing his pardon, Garzón said it was “not legal” for the Court to demand he show remorse. “This is not a legal requisite,” he said. Nor, he added, does the fact that it was EMDF that had requested the pardon reflect his “indifference.” Garzón reasserted his innocence and said, “I believe that this offense was created with the express purpose of punishing me, and that I am within my rights to disagree and to resort to another court, as I have done in Strasbourg [the European Court of Human Rights], in order to evaluate whether the Supreme Court has violated my fundamental rights.”[4]

Finally Spain High Court’s invitation for Argentina to start a case in Spain is ironic. Argentina decided to exercise universal jurisdiction over crimes committed during Spain’s Civil War and the Franco regime only after Spain quashed its own investigation of such crimes, the one initiated by Garzón. 

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[1]This post’s discussion of the Argentine proceedings is based upon Fabra, Ex-Civil Guard officer fights extradition to Argentina to face torture charges, El Pais (In English) (April 3, 2014); Fabra, High Court refuses to extradite former Franco-era Civil Guard accused of torture, El Pais (In English) (April 25, 2014).

[2] The other living suspect and Spanish resident, Juan Antonio González Pacheco, alias Billy the Kid, also is opposing his extradition to Argentina. He is a former police inspector who faces 13 charges of torture.

[3] The other criminal case against Judge Garzón involving alleged corruption was dismissed as being barred by the statute of limitations.

[4] In March 2011 Garzon brought a case before the European Court of Human Rights challenging the legality of his criminal prosecution, conviction and sentence on his approving the prosecution’s bugging of communications between certain criminal defendants and their lawyers. This case apparently is still pending.