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RIGHTS-SPAIN: Franco-Era Crimes Reach Courts in Argentina

Marcela Valente

BUENOS AIRES, Apr 14 2010 (IPS) - Invoking the principle of universal jurisdiction for crimes against humanity, the relatives of two Spanish mayors who were executed during that country’s 1936-1939 civil war filed genocide charges in Argentina Wednesday.

The lawsuit is a response by human rights groups from Argentina and Spain to legal charges against Spain’s famous investigative Judge Baltasar Garzón, who has been accused of overreaching his judicial powers by starting to investigate atrocities committed during Spain’s civil war and the 1939-1975 dictatorship of Gen. Francisco Franco.

The high court magistrate faces up to 20 years’ suspension as a result of the case brought by far-right groups in Spain, which argue that Garzón’s investigation into the forced disappearance of some 113,000 people during the Franco era violated the amnesty law passed by the Spanish parliament in 1977, two years after Franco’s death..

And during the trial, which is imminent, he will be suspended from the Audiencia Nacional, Spain’s highest criminal court.

“In Spain, the Franco-era crimes, which were committed on a massive scale in the first few months after the coup, were not only never prosecuted, but there is still no will to do so,” one of the Argentine lawyers for the plaintiffs, Beinusz Szmukler, president of the American Association of Jurists Consultative Council, told IPS.

Szmukler said he was confident that the lawsuit filed Wednesday in the federal court of Judge María Servini would prosper.

“The principle of universal justice is in our constitution, and allows the courts to try crimes against humanity that were committed abroad,” he said. “Furthermore, the Inter-American Commission on Human Rights of the OAS (Organisation of American States) recommended that states in the region apply that principle.”

One of the plaintiffs is Darío Rivas, the 91-year-old son of Severino Rivas, who was mayor of the coastal village of Castro de Rei in the northwestern Spanish province of Galicia when he was seized and shot in 1936 by the far-right pro-Franco Falange

The legal action was also brought by Inés García Holgado, great-niece of Elías García Holgado, who was mayor of the town of Lumbrales and legislator in the western province of Salamanca when he was arrested in 1936. He was executed a year after his illegal detention.

The lawsuit is backed by nearly a dozen organisations, including Spain’s Association for the Recovery of the Historical Memory – which helps relatives search common graves for victims of the civil war and dictatorship – the Argentine Federation of Galician Associations, the Mothers of the Plaza de Mayo human rights group and the Central de Trabajadores de Argentina trade union federation.

Argentine lawyer Carlos Slepoy was designated to deal with aspects of the case in Spain, where he works representing families of victims of Argentina’s 1976-1983 military dictatorship.

By filing the lawsuit, the plaintiffs backed Garzón’s determination to apply the principle of universal justice when he launched, from Spain, judicial probes of Argentine human rights abusers in the late 1990s, while they continued to enjoy impunity in their own country under amnesty laws and presidential pardons.

But Garzón is best known for issuing the international warrant that brought about the 1998 arrest of former Chilean dictator Gen. Augusto Pinochet (1973-1990), who was held under house arrest in London for 18 months before he was released by the British government on humanitarian grounds in 2000.

Garzón unsuccessfully sought Pinochet’s extradition to Spain, to try him for crimes against humanity in relation to the deaths of Spanish citizens during the Chilean dictatorship. The former dictator died in 2006 without ever being convicted.

In 1998, the Spanish magistrate sought the extradition of 46 former military and civilian officials from Argentina, including former junta members Jorge Rafael Videla and Emilio Massera. But the extradition request was turned down by then President Carlos Menem (1989-1999) – who had pardoned the dictators – and by his successor Fernando de la Rúa (1999-2001).

However, Garzón had more success in prosecuting former Argentine naval captain Adolfo Scilingo, who confessed to some 30 crimes committed during the dictatorship but was protected by the amnesty laws in Argentina

In 2005, Scilingo was sentenced to 640 years in prison in Spain.

Not until 2003, under President Néstor Kirchner (2003-2007), was a decree prohibiting the extradition of military officials overturned. But at the same time, steps were being taken to put an end to impunity in Argentina, where some 30,000 people fell victim to forced disappearance during the de facto regime.

In 2005, the Supreme Court struck down the two amnesty laws that had shielded military personnel from human rights prosecutions, clearing the way for hundreds to be tried for forced disappearance, torture and killings committed during the so-called “dirty war.” And in 2007, the Supreme Court overturned Menem’s presidential pardons.

Garzón and the Supreme Court justices who put an end to the amnesty laws in Argentina have cited the same principles of international law: that no statute of limitations applies to crimes against humanity; that such crimes cannot be amnestied; and that when they are not tried in the country where they were committed, they can be prosecuted in any country, under the principle of universal jurisdiction.

But shortly after he launched his probe into forced disappearances in Spain in 2008, Garzón declared that penal responsibility for the crimes had lapsed given the deaths of the potential defendants, including Franco and four dozen high-ranking officials from his regime, and transferred the investigations of mass graves and missing people to regional courts.

Nevertheless, Spain’s Supreme Court ruled this month that the case against the judge for overstepping his jurisdiction could go ahead.

The legal action against Garzón has drawn an outcry from legal experts and human rights organisations around the world.

In this South American country, he is highly respected as the first magistrate to attempt to bring to trial former Argentine human rights abusers when the doors to their prosecution were still closed here.