judicial independence – dwkcommentaries

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.

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 Invokes Universal Jurisdiction for Three Criminal Cases Against U.S. Officials and Soldiers

As discussed in a prior post, under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain has implemented this principle in its own domestic law and has invoked it in significant cases, including the attempt to prosecute Augusto Pinochet, the former President of Chile, for alleged human rights violations in his home country and Spain’s pending prosecution of former Salvadoran military officers for the November 1989 murder in El Salvador of six Jesuit priests and their housekeeper and her daughter (the Jesuits case).

We also have seen that torture is illegal under international law and that the U.S. is a party to the multilateral treaty against torture. As a result, the U.S. has submitted reports about its compliance with the treaty to a U.N. committee.

All of these elements come together in three pending criminal cases in Spain against certain U.S. officials for their alleged involvement in torture allegedly committed by U.S. citizens who were employees of the U.S. military or government:

One 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.”
Another case is against six members of the George W. Bush Administration who were involved in drafting legal memoranda that allegedly facilitated the torture of detainees at Guantanamo Bay and other U.S. detention facilities around the world (the so-called “Bush Six” case) .
The third case concerns the killing of a Spanish journalist-cameraman in Baghdad, Iraq on April 8, 2003, by a U.S. tank’s firing on a hotel where the man was staying.

Each of these three cases will be the subjects of subsequent posts.

On January 19, 2012, another front in these battles was opened with the filing of a complaint with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. On the basis of U.S. diplomatic cables released by WikiLeaks, 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 judicial process in these three cases. This important development also will be discussed in a subsequent post.[1]

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[1] The issue of judicial independence under international law is currently being litigated in a case against Ecuador.

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.