A prior post looked at former Judge Baltasar Garzon’s call for a Spanish Truth Commission to investigate and report on the crimes of the Franco regime during the period 1936-1951.
Paul Preston
Now a new book paints a comprehensive picture of the crimes of that era: The Spanish Holocaust: Inquisition and Extermination in Twentieth-Century Spain. The product of meticulous scholarship and research, it lays out in gruesome detail how and why Generalisimo Franco and his supporters killed 200,000 civilians during the war for not being supporters of fascism and an additional 20,000 supporters of the Republic after the war.
The author of this book is Professor Paul Preston of the London School of Economics and Political Science, who is usually regarded as the world’s foremost historian of 20th-century Spain.
The New York Timesreview called the book a “magisterial account of the bloodshed of that era” that evoked the worst of medieval times. Examples were Franco’s “parading soldiers who flourished enemy ears and noses on their bayonets, the mass public executions carried out in bullrings or with band music and onlookers dancing in the victims’ blood.”
On March 30th former Spanish Judge Baltasar Garzón wrote a passionate article in El Pais, Spain’s leading newspaper, that called for Spain to create a truth commission to investigate and report on the crimes of the Franco regime during the period 1936-1951.
Such a commission, he said, should be independent and inclusive. It should obtain the testimonies of victims and perpetrators and of experts. Its ultimate report should set forth its factual findings of the historical truth plus the individual and collective reparations owed to the victims.
Moreover, the Spanish Supreme Court judgment that absolved him of any crime in his authorization of a judicial investigation of this subject, Garzón said, acknowledged that the victims of the Franco regime crimes had legitimate aspirations to know what happened, how and why. Now a truth commission would be able to respond to those legitimate aspirations.
According to Garzón, there “are more than 100,000 people missing in the Spanish fields, whose remains remember the dignity of those who demand justice against the indignity of those who took justice away– and the silence of those who allowed it to happen–and thereby assumed the international embarrassment of forgetting and silence.”
On February 27th, the Spanish Supreme Court, 6 to 1, dismissed the criminal case against Judge Baltasar Garzón over his investigation of human rights violations by the Franco regime. A prior post reviewed this criminal case while posts on February 14th and 21st explored reactions to the case. This case will investigate the recent dismissal and the immediate reactions to that decision.
The Dismissal Decision Itself
The Supreme Court aquitted Garzón of the crime of trespass (knowingly making an unjust resolution) for trying to open an investigation into the crimes of Francoism.
According to the Court, Garzón overstepped his authority and “exceeded himself in the interpretation of the law” by investigating the Franco-era disappearances, but his actions did not constitute an abuse of power.
The Court said a search for truth regarding Civil War atrocities is necessary and legitimate, but that such a search should be conducted by other state institutions, not by an investigative judge. In short, historians have a role as do judges, but they must not be mixed.The court also acknowledged that Mr. Garzón attempted “to improve the situation” of Civil War victims who “have the right to know the facts and recover their dead” relatives.
Spain’s amnesty law, the Court concluded, was enacted with the full consensus of political forces in 1977 and was not a law “approved by the victors, those in power to cover up their crimes.” It was an instrument of reconciliation, not a law of amnesty like those enacted by some of the South American dictatorships. As a result, the Spanish amnesty law is valid and can only be repealed by Parliament, not by judges.
One of the Supreme Court judges, Judge Sánchez Melgar, filed a concurring opinion. He agreed that the charges should be dismissed, but on the ground that Garzón lacked the necessary intent to abuse the judicial function.
The sole dissentingjudge, Judge Jose Manuel Maza, stated that Garzón should have been convicted of willful trespass for instigating a procedure to serve the subjective intentions of the complainants against people already dead and for crimes that had been amnestied or at least, were clearly prescribed by the statute of limitations. The good intentions of Garzón were irrelevant, the dissenter stated.
The full text of the decision (en espanol) is available online.
Reactions to the Dismissal Decision
Human rights organizations although pleased with the dismissal had negative comments about the entire criminal cases against Judge Garzón.
Human Rights Watch said, “The real losers are the reputation of the Spanish judiciary and those — in Spain, in detention at Guantánamo or in countries around the world where there is no justice — who knew they could count on at least one independent judge to apply human rights laws without fear of the political consequences.” This organization also called for Spain to “repeal the 1977 amnesty law” and “assist the families of Franco’s victims in their long quest for truth and justice.”
Amnesty International urged the Spanish authorities to “do justice” in Spain and investigate the crimes of the Civil War and Francoism. AI added, “There should be no impunity in Spain for such heinous crimes.”
Spain’s Justice Minister, on the other hand, said that Spain had “a strong and independent judiciary” and that “[n]one of the [unjustified] criticism against the Supreme Court . . . has made it lose its prestige in the eyes of Spanish citizens.” The decision, not surprisingly, was also defended by Spain’s Supreme Judicial Council.
The Wall Street Journal’s editorial opined that the decision was “a troubling blow to the 1977 amnesty covering the bloody misdeeds of Spain’s authoritarian period—the deliberate “forgetting” of the past to which contemporary Spain owes so much.The purpose of [Spain’s] amnesty is not to dishonor the victims of atrocities or to vindicate the perpetrators. It is to ensure that the sins of the guilty do not engender new strife among the innocents, and that those sins are not exploited for political gain. It was never the place of a crusading judge to substitute his politics for the will of a country seeking to move forward.”
Conclusion
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 Garzón.
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.”
Madrid demonstration for GarzonMadrid 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 Timeseditorial 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.
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.
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.
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.
Baltasar Garson @ NYU
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.
