Politics – Page 153 – dwkcommentaries

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.

The Inter-American Commission on Human Rights Issues Important Decision on Judicial Independence

OLYMPUS DIGITAL CAMERA — Ecuadorian plate

On July 22, 2011, the Inter-American Commission on Human Rights (IACHR) issued an important decision regarding judicial independence when it concluded that Ecuador had violated the American Convention on Human Rights over its 2004 dismissal of eight of the 18 judges of its Constitutional Court. A little over three months later, in November 2011, the Commission referred the case to the Inter-American Court of Human Rights.

The key fact for this case was the Ecuadorian National Congress’ November 25, 2004, termination of all the 18 principal and alternate members of Ecuador’s Constitutional Court, eight of whom filed a complaint with the IACHR. This key fact occurred in the following context:

In January 2003 during the presidency of Gustavo Noboa three of the petitioning former judges were designated by the Congress as Judges of the Constitutional Court for four-year terms.
In March 2003 during the presidency of Lucio Gutierrez the other five of the petitioning former judges were designated by the Congress as Judges of the Constitutional Court for four-year terms.
On March 24, 2003, all of the 18 Judges of the Court took office.
Apparently sometime between March 24 and June 13, 2003, the Court in Case No. 004-2003-TC (“Case # 4”) decided that a labor statute was unconstitutional.
On June 13, 2003, a resolution was introduced in the Congress to censure five of the judges for their votes in Case # 4. Another version of this resolution was introduced three days later.
Apparently sometime between March 24, 2003, and May 31, 2004, the Court in Case No. 025-2003-TC (“Case # 25”) decided that certain provisions of Ecuador’s Electoral Law were unconstitutional.
On May 31 and July 7, 2004, two similar resolutions were introduced in the Congress to censure six of the Judges for their votes in Case # 25.
On November 9, 2004, an application for the impeachment of President Gutierrez was thwarted, but the details of this are not spelled out in the IACHR’s decision.
On November 24, 2004, President Gutierrez announced the Government’s intent to ask Congress to reorganize the Court in order to “depoliticize” it. In response the Court published an announcement in the national press that removing the sitting judges by a mere congressional resolution would be illegal and that impeachment was the only proper method for such removal.
On November 25, 2004, the Congress passed a resolution declaring that all the judges of the Constitutional Court had been illegally designated in 2003 and, therefore, terminating them. On the same day, the Congress designated new members of the Court.
On December 1, 2004, the Congress held an impeachment proceeding for five of the petitioners and one other Judge. In that proceeding the Congress debated the previously mentioned four proposed resolutions censuring the judges, but did not adopt any of these resolutions. Nor did the Congress overturn its November 25th resolution terminating the judges.

In February 2005 eight of the former Judges filed a complaint with the IACHR alleging that their removal violated the American Convention on Human Rights. Two years later, in February 2007, the Commission decided that most, but not all, of the complaint was admissible, i.e., was entitled to be treated on the merits.

Another four-plus years passed, and on July 22, 2011, the Commission issued its decision on the merits. It concluded that the State of Ecuador had violated the rights to a fair trial, to freedom from ex post facto laws and to judicial protection enshrined in the following articles of the American Convention:

“Article 8. Right to a Fair Trial. 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”

“Article 8. Right to a Fair Trial. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: .
b. prior notification in detail to the accused of the charges against him; . . .
h. the right to appeal the judgment to a higher court.”
“Article 9. Freedom from Ex Post Facto Laws. No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.”

“Article 25. Right to Judicial Protection. 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”

Note that the above provisions of the Convention do not specifically address the issue of termination of judges. The Commission, however, concluded that the principle of judicial independence was set forth in Article 8 (1) and “represents one of the basic pillars of a democratic system” and that the Inter-American Court of Human Rights had stated that “one of the principal purposes of the separation of public powers is to guarantee the independence of judges.” Thus, “the duty of respecting and ensuring that right [of persons facing prosecution or appearing before courts] has implications that are directly related to the procedures whereby judges are appointed and removed.” Indeed, said the IACHR in this case, it and the Inter-American Court “have repeatedly held that the principle of judicial independence gives rise to a series of guarantees: appropriate appointment procedures, fixed terms in office, and guarantees against external pressure.” Therefore, judges “can be removed from office solely for the commission of disciplinary offences that are previously and clearly set out in the Constitution or domestic law, and in strict compliance with the guarantees of due process.”

As a result, the IACHR recommended that the State of Ecuador (1) reinstate the petitioners in similar positions with the same remuneration, benefits and rank for the period of time remaining in their four year terms or to reasonably indemnify them; (2) pay them their wages and other benefits from the time of termination to the end of their terms; (3) publicize the violations; and (4) adopt measures to assure the independence of the judiciary.

This July 22, 2011, decision was kept confidential while Ecuador considered whether and how to implement these recommendations. However, by November 28, 2011, the IACHR concluded that Ecuador was not going to implement the recommendations. The Commission, therefore, referred the case to the Inter-American Court of Human Rights and asked the Court to order Ecuador to do what the Commission had recommended.

According to the Commission, this case was not just important for Ecuador. The Commission told the Court, this case “will allow [the Court] to establish principles that will contribute to the strengthen[ing] of the independence of the Judiciary in the democracies of the Hemisphere” and will “affect the inter-American public order of human rights.” We now await further proceedings in this case before the Inter-American Court of Human Rights.

Judicial independence is not just an important issue in Ecuador and the rest of Latin America. It is also an issue in the U.S.A. with Newt Gingrich’s outrageous recent suggestion that U.S. federal law enforcement authorities should arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings. It surfaces too in the European Union’s current concern over Hungary’s proposed mandatory early retirement rules to force out judges and allow the government to appoint their replacements.

Cuban Religious Freedom According to the U.S. Commission for Assistance to a Free Cuba

On October 10, 2003, President George W. Bush created the U.S. Commission for Assistance to a Free Cuba and directed it to report with recommendations for a comprehensive program to (i) “Bring about a peaceful, near-term end to the [Cuban] dictatorship;” (ii) “Establish democratic institutions, respect for human rights and the rule of law [in Cuba];” (iii) “Create the core institutions of a free economy [in Cuba];” (iv) “Modernize [Cuban]infrastructure;” and (v) “Meet [Cuban] basic needs in the areas of health, education, housing and human services.”[1]

This Commission issued two reports and has not been heard from in the Obama Administration. Its government website (www.cafc.gov) no longer exists.

Its first report in May 2004, in my opinion, was a U.S. blueprint for taking over Cuba. It said, “Religious organizations, including Catholic and certain authentically independent Protestant denominations, represent the fastest growing and potentially fastest growing alterative to the Cuban state in providing basic services and information to the Cuban people.” (P. 20; emphasis added.) The rest of the report makes clear that the Commission believed that only evangelical Christian groups were authentically independent and should be used by the U.S. to build a free Cuba. According to this report, they had “the trust of the people and the means to organize through an existing social network of communications and distribution channels at all levels of society.”[2]

The report also called for the U.S. to avoid trying to use the Cuban Council of Churches, which the U.S. Commission believed, had been “taken over by the Castro regime in the early 1960s and used as a means to control the Protestant churches.” (P. 64.) However, most of the clergy and laity of churches that belong to the Council, the Commission asserted, were “not sympathizers of Castro and the communists and therefore should not be denied assistance or a role in Cuban religious affairs due to ‘guilt by association.” (P. 64.)

The second Commission report in July 2006 provides more details for how the U.S. wants to see Cuba function.[3] President George W. Bush immediately approved the report and directed his Administration to implement its recommendations.[4]

The Commission’s castigation of the Cuban Council of Churches (CCC), in my opinion, is totally unjustified and particularly outrageous. I note that the most recent reports by the U.S. Department of State and by the U.S. Commission on International Religious Freedom do not attack the Cuban Council in this or any other manner.[5]

The CCC was founded in 1941 and “is a fellowship of churches, ecumenical groups, and other ecumenical organizations which confess Jesus Christ as Son of God and Saviour, according to the holy scriptures of the Old and New Testaments, and seek to respond to their common calling, to the glory of God, Father, Son, and Holy Spirit.” Today their membership consists of 22 churches, 12 ecumenical groups. 3 observer members and 7 fraternal associates.[6]

The CCC seeks “to give unity to the Christian Churches of Cuba and to help unify Cuban churches with other churches around the world.” It also “encourages dialogue between different movements and institutions as a means for churches to expand their ecumenical vocation of service, thus deepening their responsibilities towards society and all of God’s creation.” Finally CCC “promotes study, dialogue, and cooperation among Christians to increase Christian witness and enhance life in Cuba.” [7]

One of its specific programs is the CCC Committee of Emergency Relief that provides relief and building emergency response infrastructure . . . in times of natural disaster” like the hurricanes that hit the island.[8]

Moreover, I have visited the Havana office of the CCC and met some of its employees. I also know a Cuban pastor and seminary official who has been president of the CCC. Based on this personal experience I believe the Council is a legitimate Christian organization that assists its member churches and congregations in a multitude of ways to conduct their ministries in the Cuban context.

<<<<Here is a photo of the CCC sign outside its office. The other photo shows a banner listing its members and programs that I saw in the office.>>>>>>>

These Commission reports, in my opinion, are absolutely outrageous. They assume that it is entirely appropriate for the U.S. to consider and develop plans for a U.S.-imposed regime change in Cuba. They also assume that it is entirely appropriate for the U.S. to make decisions on who in Cuba (or any other country for that matter) is authentically Christian. And they assume that the U.S. may properly use certain Cuban churches, and not others, to advance U.S. objectives in Cuba. All of these assumptions and the conclusions from these assumptions are, in my opinion, illegal, immoral and unwise. I trust that its disappearance from the public scene is final.

[1] Wikipedia, Commission for Assistance to a Free Cuba, en.wikipedia.org/siki/Commission for Assistance to a Free Cuba.

[2] Commission on Assistance to a Free Cuba, Report to the President (May 2004), http://pdf.usaid.gov/pdf_docs/PCAAB192.pdf.

[3] Commission on Assistance to a Free Cuba, Report to the President (July 2006), available on Council on Foreign Relations website, http://www.cfr.org/cuba/commission-assistance-free-cuba-report-president/p11093.

[4] White House (President George W. Bush), Fact Sheet: Commission on Assistance to a Free Cuba Report to the President (July 10, 2006), http://georgewbush-whitehouse.archives.gov/news/releases/2006/07/20060710-1.html.

[5] See Post: U.S. Government’s Opinions on Religious Freedom in Cuba (Jan. 5, 2011).

[6] World Council of Churches, Cuban Council of Churches, http://www.oikoumene.org/en/member-churches/regions/Caribbean/cuba/cic.html; [U.S.] National Council of Churches, Background on the Cuban Council of Churches, http://www.ncccusa.org/news/cuba/cccbackground.html.

[7] Id.; United Church of Christ, Cuban Council of Churches, http://globalministries.org/lac/projects/Cuban-council-of-churches.html. See Comment: U.S. Church Leaders Call for U.S.-Cuba Reconciliation (Dec. 10, 2011)[Comment to Post: President Obama Is Wrong on Cuba (Sept. 29, 2011)].

[8] Id.

U.S. Government’s Opinions on Religious Freedom in Cuba

Annually the U.S. Department of State, pursuant to statutory authorization, releases a report on the status of religious freedom in every country in the world.[1] In addition, the quasi-independent U.S. Commission on International Religious Freedom releases annual reports on the same subject.[2] The most recent State Department reports grudgingly admit that there have been many improvements in such freedom in Cuba while the Commission takes a more strident and hostile view of the subject.

It should be noted at the outset that these two agencies are not seeking to impose on the rest of the world the U.S. constitutional prohibition of the “establishment of religion” or of “abridging the free exercise [of religion].” [3] Instead the agencies reports rely upon international legal standards for such freedom.[4]

Introduction

The Cuban Revolution’s early hostility to religion and the relaxation of this hostility after the 1989 collapse of the Soviet Union have been discussed.[5]

Cuba’s constitution now recognizes the right of its citizens to profess and practice any religious belief. However, Cuba is not a party to the International Covenant on Civil and Political Rights or the American Convention on Human Rights. Therefore, those treaties are not legally binding upon Cuba. Nor is the Universal Declaration of Human Rights; as a resolution of the U.N. General Assembly it does not create legal obligations for any nation state.

The estimated religious makeup of the Cuban population is as follows:

Religious Group	Number	Percentage
Roman Catholic	8,000,000	69.57%
Protestants	600,000	5.22%
Jews	1,500	0.01%
Muslims	1,000	0.01%
Other	2,897,500	25.20%
TOTAL	11,500,000	100.00%

However, only an estimated 320,000 to 400,000 of the Roman Catholics regularly attend Mass, and an estimated 80% of the population has some interactions with Santaria, an African Yoruba religion with Catholicism accents.

State Department Reports

Under the authorizing statute, the State Department Under the authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) those that have engaged in or tolerated “particularly severe” violations of religious freedom. It has so designated eight countries. Cuba is not one of them.[6]

The most recent State Department reports on Cuba start with the statement that “in law and in practice, the [Cuban] government places restrictions on freedom of religion.” The balance of the reports, however, talk about the following positive aspects of this freedom in Cuba:

“Most religious groups reported improvements in religious freedom.”
They report “increased ability to cultivate new members, hold religious activities, and conduct charitable and community service projects.”
They report “fewer restrictions on politically sensitive expression, importation of religious materials, and travel.” Indeed, the majority of religious groups said there was “continued improvement in their ability to import religious materials, receive donations from overseas, and travel abroad to attend conferences and religious events,” and it was “easier to bring in foreign religious workers, access the Internet, and restore houses of worship.”
They also report greater ability “to obtain government permission to maintain and repair existing places of worship and other buildings.”
“There were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice.”
The Cuban government and the Roman Catholic Cardinal of Cuba held discussions that led to less government harassment of a group of female relatives of political prisoners (Damas de Blanco (Ladies in White)).
Although unrecognized religious groups are technically illegal, the government rarely interfered with them.
Although unregistered “house churches” are technically illegal, the vast majority of religious leaders reported that such churches operated without interference.
“There were no reports of persons imprisoned or detained for specifically religious reasons.”
“There were no reports of forced religious conversion.”
Although there is no legal provision for conscientious objections to military service, in practice the government allows alternative civilian public service.

The Cuban restrictions on religious freedom, according to these reports, in my opinion, are less significant and are qualified by the above recognized positive developments. It has been difficult to obtain permission to construct new church buildings. Some unrecognized churches reported government harassment. The process of obtaining permission for “house churches” was difficult. All religious groups are required to disclose certain financial information and affiliation with foreign organizations, and their records are subject to inspection. The government tightly regulates the publication of all printed materials, including religious materials.

Leaders of an association of nondenominational churches (Apostolic Reformation) reported harassment and detention, and one of the leaders, Pastor Omar Gude Perez, was convicted in 2009 of illicit electronic activity and falsification of documents. In early 2010 the conviction was affirmed.

U.S. Commission on International Religious Freedom

Under the authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) those that have engaged in or tolerated “particularly severe” violations of religious freedom. In its latest report 14 countries are so designated. Cuba is not one of them; the eight so designated by the State Department plus six others.[7]

But Cuba is one of 11 countries on the Commission’s “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.” (Cuba has been on this Watch List since 2004.)[8]

The Commission recognizes many of the same improvements in Cuban religious freedom as the State Department. The Commission also notes that Raul and Fidel Castro have taken steps to reach out to its small Jewish community with Raul celebrating Hanukkah in 2010 while Fidel criticized Iranian President Ahmadinejad’s denial of the Holocaust.

This report focuses on the Cuban government’s harassment of the Apostolic Reformation, including the conviction and imprisonment of one of its leaders, as was noted in the State Department’s report too. The Commission also discussed the charges made against an evangelical Cuban pastor.

The Commission mentions the Cuban government’s requirement for registration of churches and house churches and its “failure to give permission to build new houses of worship, repair or restore existing ones, or access construction materials; denial of access to state media; denial of exit visas for Cubans; state monopoly on printing presses for religious material; censorship of such materials; prohibition of private religious schools; limits on entry of foreign religious workers; denial of Internet access; denial of religious materials to prisoners; denial of permission to hold religious events outside their buildings; and unofficial exclusion of overtly religious propel from certain employment. (The State Department in contrast talks about many of these restrictions being relaxed.)

The Commission then recommends that the U.S. press the Cuban government to take 10 specific actions to improve religious freedom “prior to [the U.S.’] considering resuming full diplomatic relations” with Cuba. Other recommendations were: (i) U.S. funding of initiatives to advance Cuban religious freedom; (ii) increasing the number of U.S. visas for Cuban religious leaders; (iii) encouraging Radio Marti and Radio Marti to report on religious freedom issues;[9] (iv) eliminating U.S. barriers to Internet access by Cuban religious freedom and human rights activists; and (v) awarding U.S. funds to counter Cuban censorship.

Conclusion

The State Department’s more balanced reports on Cuban religious freedom, in my opinion, are better grounded in reality than the Commission’s. While I believe the U.S. should encourage and promote religious freedom around the world, including Cuba, the recommendations by the Commission are unjustified and counterproductive and evidence the same bias against Cuba that we see in other aspects of U.S. policy towards Cuba.[10]

[1] U.S. Dep’t of State, 2010 Annual Report on International Religious Freedom (Nov. 17, 2010), http://www.state.gov/g/drl/rls/irf/2010/index.htm; U.S.Dep’t of State, July-December, 2010 Annual Report on International Religious Freedom (Sept. 13, 2011), http://www.state.gov/g/drl/rls/irf/2010_5/index.htm.

[2] U.S. Comm’n on Int’l Religious Freedom, Annual Report 2011 (May 2011), http://www.uscirf.gov/images/book%20with%20cover%20for%20web.pdf. The Commission, which was created by the International Religious Freedom Act of 1998 as an entity separate and distinct from the State Department, is an independent U.S. government body that monitors religious freedom worldwide and makes policy recommendations to the President, Secretary of State, and Congress. On December 16, 2011, the Commission’s life was extended by Congress through 2018 after a series of brief extensions had kept it in existence after its previous authorization expired in September 2011. (Bauman, US religious freedom commission reauthorized at last minute, http://www.catholicnewsagency.com (Dec. 17, 2011).)

[3] U.S. Const., First Amend.

[4] See Post: International Law Regarding Freedom of Religion (Jan. 1, 2012).

[5] See Post: The Cuban Revolution and Religion (Dec. 30, 2011).

[6] The eight CPC countries are Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Ubekistan.

[7] The other six CPC countries, according to the Commission are Egypt, Iraq, Nigeria, Pakistan, Turkmenistan and Vietnam.

[8] The other 10 countries on the Commission’s Watch List are Afghanistan, Belarus, India, Indonesia, Laos,Russia, Somalia, Tajikistan, Turkey and Venezuela.

[9] Radio y Televisión Martí is a radio and television broadcaster based in Miami, Florida, financed by the U.S. government which transmits Spanish radio and television broadcasts to Cuba.

[10] See Post:The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011); Post: U.S. Repeats Its Designation of Cuba as a “State Sponsor of Terrorism” (Aug. 21, 2011).