Judge Baltasar Garzón has filed a case to the European Court of Human Rights challenging the lawfulness of his prosecution for opening an investigation into crimes committed during the Franco era.
Judge Garzón was suspended from his position in the High Court in May of 2010 pending the outcome of his trial for abuse of power. No date has been set.
In 2006, in line with his role as one of six investigating judges at Spain’s High Court, Garzón began a preliminary investigation following requests by the families of victims of repression by the Franco regime to ascertain the legality of a prosecution. His analysis of Spanish law, as well as the body of developed international law in this area, led him to determine that Spain’s 1977 amnesty for Franco-era crimes did not preclude investigation of the serious crimes against humanity in question.
Garzón faces charges under Spain’s prevaricación (or malfeasance) law, which allows judges to be prosecuted for “unjust” judgments. Prosecution of judges under this law in Spain and across Europe is rare. Previous rulings by Spanish courts establish that judges can only be prosecuted for “unjust” decisions that are irrational, perverse, or objectively unsustainable. There is no basis in Spanish or international law for a judge to be prosecuted for reasoned interpretations of the law. The prosecution of judges for their decisions, specifically for their interpretations of the law, rather than the appeal or review of those decisions within the normal legal framework, violates the fundamental principle of the independence of judges.
The decision to suspend Garzón last year was expected, but is seen by his supporters as the latest stage in a political and professional vendetta against the controversial magistrate.
Garzón’s supporters claim there is nothing coincidental about the fact that the trial for malfeasance comes at the same time as two other, separate cases in which he is also accused of knowingly twisting the law.
The private prosecutions against him have been brought by rightwing groups and one case refers directly to a corruption investigation into the main opposition party, the rightwing People’s Party (PP).
Garzón alleges that the criminal case against him in Spain violates the country’s obligations under the European Convention on Human Rights. These include the requirement to protect judicial independence generally, including protecting judges from unfounded criminal prosecutions as exemplified by this case. Specifically, the prosecution of Garzón violates the duty not to subject individuals to an inherently unfair criminal process, to only prosecute on the basis of clear criminal law, strictly applied, to respect private life and professional development and the right of judges to reasoned judicial decisions in the exercise of judicial functions.
As Interights, a London-based NGO specialising in international law, points out, Garzón’s case represents a threat to the independence of judges and their role in ensuring accountability for alleged widespread and systematic crimes.
Interights litigation director Helen Duffy, who is Garzón’s legal counsel before the European Court, said: “Prosecuting a judge for reasoned, well-substantiated judicial opinions, whether you agree with them or not, is anathema to justice. Judge Garzón is being punished for giving effect to Spain’s international obligations to investigate serious crimes and honouring the rights of victims. He is now himself the victim of an unjustifiable criminal prosecution, which has had a profound impact on his life.”
Witness statements from leading legal experts around the world submitted to the Strasbourg Court on March 24, back up the view that the prosecution of Garzón violates judicial independence and the rights of victims of Franco era crimes to an investigation and information concerning the fate of deceased and missing family members. There has been global public and expert reaction to the prosecution. Public demonstrations have taken place in 21 Spanish and seven foreign cities, including a demonstration in April last year in Madrid which attracted 60,000 people. Prominent human rights and international governmental organisations have also criticised the political attacks on the magistrate and it has not escaped notice that he is the first person in the dock in Spain in relation to the atrocities of the Franco regime.
This case comes at a time when, as recently recognised by the UN Human Rights Council, judges are subject to increasingly frequent attacks on their independence and should be protected against harassment and retaliation for their work.
“Securing respect for international human rights depends on national judges being willing and able to enforce human rights standards on the national level, including on controversial and difficult questions such as accountability for crimes against humanity,” said Duffy. “Spain has in this instance failed to meet its obligation to protect a judge from spurious criminal processes and gravely jeopardized both judicial independence and the rights of victims to access justice in so doing.”
For additional analysis, see an editorial published in the online magazine of the Abraham Lincoln Brigade Archives: http://www.albavolunteer.org/2011/03/the-garzon-case-the-trials-the-thing-an-alba-editorial/ “The argument being made by Interights is fascinating and compelling: the violation of Judge Garzón’s rights is being committed in the prosecution itself, undermining judicial independence.The existence of three separate sets of charges, brought against Garzón –who has been on the bench for almost 30 years—in the space of less than a year, can be cited as evidence of an attempt, on the part of his judicial colleagues, to effectively disable him, via litigation.”