Author: dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

Commentary on the Spanish Criminal Cases Against Judge Garzon

WO-AI699_GARZON_D_20120208182020 — Judge Baltasar 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.”

Thousands_rally_in_favor_of_Garzon — Madrid demonstration for Garzon

WO-AI696_GARZON_G_20120208195159 — Madrid demonstration for Garzon

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.

Dismissal of Spanish Criminal Case Against Judge Garzon for Alleged Bribery

As described in a prior post, Spanish Judge Baltasar Garzon has been charged with crimes in three separate cases.

One of the cases charged him with bribery in his dismissal of a tax fraud case against a top executive of Spain’s Banco Santander even though it appeared that neither the executive nor the bank paid anything to Judge Garzon personally. Instead, the bank had made a substantial gift to New York University (NYU) that supported several of its international programs. One of the programs was NYU’s hosting international visiting faculty (presumably including Judge Garzon who was a fellow at NYU in 2005.)

On February 13, 2012, as reported by El Pais and the New York Times, Spain’s Supreme Court dismissed this case on the ground that it was barred by the statute of limitations (by prescription, in Spanish legal parlance).

Additional Reactions to Judge Garzon’s Conviction

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.”

Conclusion

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.

Reactions to Judge Garzon’s Conviction

Yesterday’s 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. According to El Pais, there is no right of appeal from this decision under Spanish law.

A subsequent article in El Pais provided additional details about the decision. The newspaper said that in a 69-page decision the court stated that Judge Garzon’s allowance of wire-tapping of attorney-client communications caused a “drastic and unjustified reduction in the defense’s strategy” and violated the constitutional rights of the accused corruption ringleaders. The decision of Judge Garzon was one “typical of totalitarian regimes,” the decision declared.

Later in the day Judge Garzon released a statement. It said,”I reject outright the judgment . . . . I do so understanding that it does not comply with the law, which condemns me unfairly and unjustly . . . . I will use the appropriate legal channels to combat and mitigate the irreparable harm that the authors of this judgment have caused. . . . Throughout this process, my rights have been systematically violated; my requests for defense neglected; the trial was an excuse, with the content . . . only against me, regardless of the supporting elements that benefited me.” In addition, the statement said the court had prevented him from offering evidence showing that the “crime bosses” used their lawyers to launder money and that the judgment “does not say at any time what the damage was to the right of defense of the accused corruption ringleaders.

Moreover, Garzon’s attorney said that Judge Garzon felt an understandable “desolation and pain,” but was considering an appeal to Spain’s constitutional court or the European court of Human Rights.

Thousands of people gathered outside Spain’s Supreme Court building after the court’s decision was released to protest the ruling. A public opinion poll indicated that over 60% of the Spanish people thought Garzon was a victim of persecution and that the Spanish justice system had been adversely affected.

The International Commission of Jurists released a statement condemning the conviction. It said this decision “is the deplorable conclusion of a criminal proceeding that should have never been initiated in the first place. Garzón has been removed from the bench for interpreting the law and rendering a decision but whether or not one agrees with the interpretation and decision, this is precisely what being a judge is about. Applying a criminal sanction against a judge who is doing his job is a clear denial of judicial independence. The fact that the prosecutor had asked for the dismissal of the case and that several judges shared Garzón’s interpretation of the law shows by itself that the decision originally taken by Garzón could not be considered arbitrary. The context of this conviction is very worrying. Three proceedings have been opened against a judge who lifted the veil of amnesty protecting alleged crimes against humanity that have yet to be investigated. One might wonder to what extent this sentence is just a way to silence Garzón.”

Human Rights Watch said that this case along with the other two criminal cases against Garzon appear to be a “reprisal for his past actions against vested interests.”

Philippe Sands, a noted expert on international law at University College in London, said that “targeting an independent judge . . . thought the criminal justice system anywhere raises serious concerns.”

Spain’s justice minister, on the other hand, stated that it was not for the government to make a “political assessment” of the decision, except that it demonstrated “the normal functioning of our institutions.”

As a U.S. lawyer, I reiterate my plea for comments by those more knowledgeable about Spanish law and procedure to clarify or correct my accounts of this and the other two cases against Judge Garzon. In my next post I will more generally examine the reactions to all three of the criminal cases against Judge Garzon.

Judge Garzon Convicted in Case Involving Bugging of Attorney-Client Communications

On February 9, 2012, 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 and a fine of Euros 2,500. According to El Pais, there is no right of appeal from this decision.

The prior day, February 8, saw the end of the trial of the criminal case against Garzon arising out of his opening a criminal investigation into human rights violations by the Franco-regime. A decision in this case is expected within four weeks. On the last day, Garzon told the court that he opened the underlying case “in deense of the victims so that they would not be forgotten.” A lawyer for one of the private groups that brought this case against Garzon argued that Garzon had demonstrated bias favoring the Republican side of the Civil War when he used the Spanish amnesty law as the basis for dismissing a case against a Republican leader over a massacre of Franco supporters in that War.

These two cases were discussed in my February 7, 2012 post.

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.

20120117elpeng_1 — Judge Garzon & His Attorney

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.

Alleged Improper Interference with Spanish Judicial Process by U.S. and Spanish Officials

As mentioned in a prior post, on January 19, 2012, two 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 have attempted to interfere with the Spanish judges handling three criminal cases against U.S. officials. These allegations were in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers.

Now we examine the specifics of these allegations. Afterwards we will take a quick look at the role and function of the Special Rapporteur to understand the context in which these accusations are being made.

The Allegations

The complaint to the Special Rapporteur alleges that U.S. officials have breached the right to an independent and impartial judiciary by interfering with the exclusive authority of the Spanish judiciary to determine these cases without restrictions, improper influences, pressures, threats or interference. These actions by U.S. officials allegedly sought to deprive victims of serious crimes, including torture, of the right to an impartial proceeding and the right to redress.

With respect to Spanish officials, it is alleged that they improperly cooperated with the U.S. officials and that the Spanish prosecutors breached their legal duty to act fairly and impartially.

The factual basis for these allegations is a collection of 28 U.S. diplomatic cables from the period July 2004 through May 2009 that subsequently were put into the public record by WikiLeaks. The following, I believe, fairly summarizes the complaint’s account of these cables:

The U.S. officials who were involved in these communications were the U.S. Ambassador to Spain, two Republican U.S. Senators (Judd Gregg of New Hampshire and Mel Martinez of Florida) and U.S. diplomatic staff in Spain.
The Spanish officials who were so involved held various positions in the government’s executive branch, including the Vice President, the Foreign Minister, the Attorney General and the Chief Prosecutor along with lower-level people in the Spanish government.
Very significantly, in my opinion, there is no mention in the complaint of U.S. or Spanish officials’ allegedly communicating directly with the Spanish judges who were involved in these three cases in any way. There is no allegation that the U.S. or Spain threatened the judges or tried to bribe them to halt the cases. Nor is there any claim that the Spanish officials had improper and ex parte communications with the judges.
In many of these communications, the Spanish officials stressed that the Spanish judiciary was independent of the government, and I think that the previous summaries of these three cases demonstrates that independence. The complaint to the Special Rapporteur, however, argues, in my opinion, that these Spanish statements show that all participants were aware that their communications were improper. I do not find this argument persuasive.
The substance of the communications was the U.S. extreme displeasure with the Spanish courts’ processing these cases and the potential adverse consequences for the overall U.S.-Spain relationship from continuation of the cases. The U.S. kept pressing the Spanish officials to try to stop these cases, but the consistent Spanish response was their inability to control that decision because the courts were independent.
Moreover, as we have seen in prior posts, the three cases continue to be processed by the Spanish courts. The cases are not over.

I am not an expert on U.S. or other countries’ diplomatic practices, but these communications are what I would expect to occur when two countries have a problem. Diplomats and other officials for one country express their displeasure with something the other country is doing and try to persuade that other country to change its behavior.

Therefore, although I regard myself as an international human rights advocate and want these cases against U.S. officials to proceed on the merits and although I have great respect for the two human rights organization pressing this complaint, I am not persuaded there was improper conduct by the U.S. or Spain as alleged in the complaint. Here especially I invite comments indicating I may have missed or misinterpreted some of these diplomatic cables or their significance for this complaint to the Special Rapporteur.

In a subsequent post I will discuss the Spanish criminal charges now pending against Judge Baltasar Garzon, who was a judge in two of these cases against U.S. officials and whether the charges against the Judge are related to the alleged U.S. and Spanish improper attempts to interfere with the Spanish judiciary.

The Special Rapporteur on the Independence of Judges and Lawyers

In 1994 the U.N. Commission on Human Rights created this position after it noted “the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights.” The initial period for this position was three years, but it has been extended by the Commission and since 2006 by its successor, the U.N. Human Rights Council.

This Special Rapporteur, among other duties, is required to “inquire into any substantial allegations transmitted to him or her and to report his or her conclusions and recommendations thereon.”

This Special Rapporteur is one example of the 33 thematic mandates of the Human Rights Council. They constitute one way that the Council seeks “to examine, monitor, advise and publicly report on . . . major phenomena of human rights violations worldwide.”

The term “rapporteur,” by the way, is a French term that is used in international and European legal and political contexts to refer to a person appointed by a deliberative body to investigate an issue or a situation.

Conclusion

The complaint to the Special Rapporteur and the Spanish criminal cases against U.S. officials and against Judge Garzon are important unfinished matters. We all should make special efforts to stay abreast of further developments, especially since the U.S. media does not provide persistent coverage of these matters.

Spain’s Criminal Case Over U.S. Killing of Spanish Journalist in Iraq

Spain’s National Court (Audiencia Nacional), as mentioned in a prior post, has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory. We now look at the third of these three cases.

In May 2003, the mother (Maria Isabel Permuy Lopez) and other family members filed a criminal complaint with the Central Criminal Court for Preliminary Criminal Proceedings No. 1 at the Audiencia Nacional in Madrid. The subject of the case is the April 8, 2003, killing of her son, Jose Couso Permuy, who was a cameraman for a Spanish television station, in Baghdad, Iraq by a shell fired by a U.S. tank. The defendants are three U.S. infantrymen involved in the shelling.

On October 19, 2005, Judge Santiago Pedraz opened a preliminary investigation in light of the failure of the U.S. to provide responses to the Spanish court’s requests for information. The Judge also issued three international arrest warrants for the three U.S. infantrymen on charges of murder and war crimes.

On March 10, 2006, the case was closed by the Criminal Division of the National Court, but nine months later (December 2006), the Spanish Supreme Court reversed the dismissal.

Judge Pedraz in January 2007 reactivated the three arrest warrants and requested a freeze on the defendants’ assets. He also asked the U.S. to provide contact information for the defendants for an INTERPOL Red Notice, but the U.S. Ambassador to Spain advised the Spanish Attorney General that the U.S. would not respond to the request.

The next round was the April 2007 indictment of the defendants by Judge Pedraz for aggravated murder and crimes against the international community by attacking journalists. However, in May 2008, this was reversed by the Criminal Division of the National Court on an appeal by the National Court Chief Prosecutor.

The case, however, was not yet over. In May 2009 on the basis of new evidence Judge Pedraz issued new indictments for murder, crimes against humanity and violations of the Geneva Conventions. There also was another indictment in November 2011.

In summary, this case is still pending.

Collaterally the Couso family has asked the Spanish government for an investigation of the integrity of the Spanish criminal investigation of this case following the WikiLeaks release of certain U.S. diplomatic cables. This request has faced procedural problems and has not reached a final conclusion.

Spain’s Criminal Case Against U.S. Authors of Legal Memoranda Allegedly Justifying Torture

Spain’s National Court (Audiencia Nacional) has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory.

On March 17, 2009, the Spanish Association for the Dignity of Prisoners filed a 98-page criminal complaint in the Spanish court against six officials of the George W. Bush Administration: (i) David Addington (former Counsel to, and Chief of Staff for, former U.S. Vice President Cheney); (ii) Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); (iii) Douglas Feith (former Under Secretary of Defense for Policy, U.S. Department of Defense (DOD)); (iv) Alberto R. Gonzales (former Counsel to former U.S. President George W. Bush, and former U.S. Attorney General); (v) William J. Haynes (former General Counsel, DOD); and (vi) John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).

The six officials are alleged to have participated in, or aided and abetted, the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations, all in violation of international law, including violations of the Geneva Conventions and the Convention Against Torture.

On March 28, 2009, Judge Baltasar Garzon decided that the complaint met jurisdictional requirements and opened a preliminary investigation.

On April 16, 2009, Spain’s Attorney General raised objections to the continuance of the case, and the next day, Spain’s Public Prosecutor filed a request that the complaint be dismissed and responsibility for investigating the matter be referred to a different judge. The latter was done on April 23rd with Judge Eloy Velasco being assigned.

On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent a formal request (Letters Rogatory) to the U.S. asking it to state “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.” If there had been an affirmative response to this question, the Spanish court undoubtedly would have closed its investigation.

Nearly two years later, on March 4, 2011, the U.S. finally responded to the Letters Rogatory. It stated that the U.S. had clear jurisdiction over the case and asking that the case be sent to the U.S. for further review and investigation.

On April 13, 2011, Judge Velasco temporarily stayed the case in Spain and transferred the case to the U.S. Department of Justice with a request for the U.S. to indicate the time frame for U.S. action on the complaint.

On April 19, 2011, the Spanish Association for the Dignity of Prisoners filed an appeal of Judge Velasco’s order staying the case. That appeal is still pending.

In summary, the case is still pending in Spain with unresolved issues.

In the meantime, the body responsible for monitoring compliance with the multilateral treaty against torture (the Committee Against Torture or CAT) has severely criticized U.S. treatment of detainees in the so-called “war on terrorism” and the U.S. purported legal justification of such treatment through so-called “enhanced interrogation” techniques.

Spain’s Criminal Case Over Alleged U.S. Torture of Guantanamo Detainees

As set forth in a prior post, Spain has implemented the principle of universal jurisdiction in three pending criminal cases against certain U.S. officials for their alleged involvement in torture. When reviewing these three cases, the reader needs to be aware that under Spanish law, unlike U.S. law, ordinary citizens and NGO’s may initiate criminal cases as a popular prosecutor by filing a criminal case with the court, as was done in all three of these cases.

The first of these cases against U.S. officials relates to the alleged use of torture at the U.S. detention facility at Guantanamo Bay, Cuba. It is directed at “members of the American air forces or military intelligence and all those who executed and/or designed a systemic torture plan and inhuman and degrading treatment against prisoners in their custody.”

This case began on April 27, 2009, when Judge Garzon at the Audiencia Nacional initiated a preliminary investigation of U.S. interrogation and treatment of four former detainees at Guantanamo, all of whom had been acquitted of Spanish criminal charges because of their having been tortured and subject to other abuses while at that facility. This decision did not name potential defendants and instead indicated it was directed at “possible material and instigating perpetrators, necessary collaborators and accomplices.” These facts, said the court, amounted to violations of the Geneva Conventions and the Convention Against Torture.

On May 15, 2009, Judge Garzon issued a formal request (Letters Rogatory) to the U.S. and the U.K. asking whether there were any criminal investigations regarding the treatment of these four men. Neither country responded. If there had been such investigations in the U.S. or the U.K., then the Spanish court would not proceed.

On January 27, 2010, Judge Garzon determined that the court had jurisdiction over the case because two of the men were a Spanish citizen or resident and because the violations constituted crimes against humanity as well as violations of multilateral human rights treaties to which the U.S. was a party.

In May 2010 Judge Garzon was suspended from judicial service and removed from this case after a criminal case had been brought against him for initiating a criminal case regarding atrocities of the Spanish Civil War and the Franco regime. Judge Pablo Rafael Ruz Guitierrez took over the handling of this case.

On April 6, 2011, an appellate court (the Plenary of the Criminal Division of the Audiencia Nacional) affirmed that the Spanish courts were competent to hear this complaint while dismissing an appeal by the Public Prosecutor’s Office that had requested dismissal.

On January 12, 2012, Judge Ruz issued a decision noting that the court had not received any responses to the letters rogatory to the U.S. and U.K. and affirming that the Spanish court had jurisdiction over the case.

In summary, the case is still pending and is not yet resolved.