RIGHTS: Spain’s Most Famous Judge May Be Suspended

By Tito Drago Reprint | | Print |

Tito Drago

MADRID, Apr 2 2010 (IPS) - Spanish Judge Baltasar Garzón, who became world-famous when he issued the warrant that resulted in former Chilean dictator Augusto Pinochet’s arrest in London in 1998, is now facing legal charges himself, which could cost him his job.

Garzón, who sits on the Audiencia Nacional, Spain’s highest criminal court, is accused of overreaching his judicial powers for his 2008 decision to investigate human rights crimes committed during Spain’s 1936-1939 civil war and the 1939-1975 dictatorship of Francisco Franco, which were covered by an amnesty issued by parliament in 1977, two years after the dictator’s death.

The high court magistrate began investigating the forced disappearance of some of the more than 100,000 victims of that crime, arguing that under international law no amnesty can apply to crimes against humanity.

In response to legal action brought by “associations for the recovery of the historical memory” which group the families of victims of forced disappearance in different regions of the country, he ordered the exhumation of 19 unmarked mass graves around the country.

One of the graves is said to hold the body of poet Federico García Lorca, who was killed by pro-Franco forces in 1936 in the southern city of Granada.

The charges against Garzón were filed by the far-right organisations Manos Limpias, which calls itself a trade union but is not registered as such, Libertad e Identidad (Freedom and Identity), and Falange, Spain’s fascist party.

On Mar. 25, the Supreme Court rejected an appeal by Garzón, who argued that he did not overstep the bounds of his jurisdiction, and that his investigation was legitimate. The Court thus ruled that the case against him could proceed.

The case will be put in the hands of ultraconservative Judge Adolfo Prego, a member of the Honorary Board of the extreme-right “Foundation for Defense of the Spanish nation” (Denaes).

The charges against Garzón have triggered an outcry in Spain, from socialist Prime Minister José Luis Rodríguez Zapatero – who pointed to the judge’s fight against terrorism – trade unions, civil society organisations and judicial colleagues.

The two main trade union federations, the UGT and CCOO, issued a statement “publicly expressing our solidarity at this time with Judge Garzón.”

International organisations have also expressed their concern. The International Federation for Human Rights (FIDH) presented an open letter to Spanish judicial authorities requesting that the charges against Garzón be dropped.

In response to questions from IPS, Garzón said the investigation of civil war crimes must go ahead because there is no proof that tens of thousands of missing detainees were ever released, and because no statute of limitations applies to the crime of forced disappearance.

He said he would continue to defend the legality of his actions and his “absolute innocence,” and added that he had merely been doing his duty.

“Like any human being, I can make mistakes, but I am certain that I would never hand down a sentence or order knowing that it is unfair. That would clearly be against the law,” he said.

In the appeal requesting that the case against him be dropped, Garzón’s lawyer, Gonzalo Martínez-Fresneda, asked that international legal experts who have taken part in prosecutions for crimes against humanity be called upon to testify.

He suggested, for example, that statements be taken from Carla del Ponte, former chief prosecutor for two United Nations international criminal law tribunals; Chilean Judge Juan Guzmán, who indicted the late dictator Pinochet (1973-1990); and Argentine Supreme Court magistrate Eugenio Zaffaroni.

In 2005, Argentina’s Supreme Court declared unconstitutional the two 1980s amnesty laws that had let the perpetrators of human rights crimes committed during the 1976-1983 dictatorship off the hook. The legal decision paved the way for the reopening of hundreds of human rights cases in that country.

The International Commission of Jurists (ICJ) also spoke out against the charges faced by Garzón.

“International legal standards of judicial independence prohibit the criminal liability of judges for controversial or even unjust or incorrect decisions, which should be dealt with through disciplinary procedures,” Roisin Pillay, ICJ Senior Legal Advisor for the Europe Programme, said when the case was brought last year.

“Prosecutions of judges for professional acts constitute an inappropriate and unwarranted interference with the independence of the judicial process,” she added at the time.

Garzón is best-known for issuing the arrest warrant that led to 17 months of house arrest for Pinochet (1915-2006) in London, although the former dictator was eventually released on humanitarian grounds and returned to Chile, instead of being extradited to Spain to face charges of crimes against humanity.

But the investigating magistrate has also been behind other high-profile cases. For example, he wrote the indictment that led to the trial in which 18 al-Qaeda terrorists were convicted.

In addition, he has been active in cracking down on the Basque country ETA terrorists.

Garzón also sentenced two Spanish police officers for the bungled assassination attempt against Segundo Marey, a Frenchman of Basque descent, who was mistaken for an ETA leader but lived to testify in court.

If the judge is charged in the civil war case, he will automatically lose his bench on the Audiencia Nacional, as well as his salary. And if he is convicted of overreaching his powers, he could be suspended for 10 to 20 years.

He has already announced that if that occurs, he will turn to the international courts.