27 February, 2012

Judge Baltasar Garzón - Judicial Independence in Spain looks questionable

Baltasar Garzon
Recent events in Spain have raised serious questions about the independence of their judiciary and, in particular, of their investigating judges.  Baltasar Garzón served as one of six investigating judges for Spain's National Court (Audiencia Nacional).  He came to international attention when, in 1998, he issued an arrest warrant for General Pinochet - (Pinochet: Arrest).

In 2006, Judge Garzón took preliminary
investigative steps into allegations made by victim’s families relating to crimes committed during the Franco dictatorship.  (For more details of the events in that period see "The White Terror").

Garzón's analysis of Spanish law, as well as the body of developed international law in this area, led him to determine that Spain’s 1977 law which affords amnesty for Franco-era crimes did not preclude investigation of the serious crimes against humanity in question. As a result of this, in a move which turned him from human rights defender to criminal defendant, Judge Garzón was suspended from his role pending the outcome of a trial for alleged ‘abuse of power' - referred to in Spanish law as prevaricación (malfeasance).  As things have turned out, Garzón has been acquitted on the matter by Spain's Supreme Court - The Guardian 27th February 2012.  (He remains convicted and suspended from legal duties as a result of an earlier trial brought in connection with his decision in 2009 to order wiretaps of prison conversations between detainees and their lawyers - see The Guardian 9th February 2012).

The Franco-era case brought against Judge Garzón represented a threat to the independence of judges and to their role in ensuring accountability for alleged widespread and systematic crimes.   Judge Garzón alleges that the criminal case against him in Spain violated several of that country’s obligations under the European Convention on Human Rights. These include the obligation to protect judicial independence generally, including protecting judges from unfounded criminal prosecutions as exemplified by this case.  Specifically, the prosecution of Judge Garzón violated 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. 

The 1977 Amnesty law was obviously prepared in the light of understanding of law at the time and in the desire to enable Spain to bring about a new and democratic future.  Whatever the merits of this law, Judge Garzón has considerable legal opinion on his side in support of the right of an investigating to judge to take action in the way that Garzón did when the allegations relate to crimes against humanity.   Relevant material includes:

The London-based international human rights non-governmental organisation INTERIGHTS has considerable material on the Garzón case on which much of the above is based.  A detailed document on these matters may be downloaded.  In a Press release of 24th March 2011 announcing the filing by Garzon of a case against Spain at the European Court of Human Rights, Helen Duffy (Interights Litigation Director) 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. The potential chilling effect on other judges when they come to determine legally or politically controversial cases is obvious, and a serious threat to judicial independence and the rule of law.’

‘It is surprising that a country with a strong commitment to the rule of law, which emerged from dictatorship decades ago, should respond to a leading judge’s investigation of Franco era crimes in this way.’

Other material:

Telegraph 30th January 2012 - "Spain split over Pinochet judge Baltasar Garzón"

Open letter to Spain - World Organisation against Torture

Office of the High Commissioner for Human Rights - Independence and Impartiality of Judges, Prosecutors and Lawyers

The following international conventions are also relevant:

International Covenant on Civil and Political Rights - Article 14 - All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

European Convention on Human Rights - Article 6 -  Right to a fair trial.   In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Logically, a tribunal cannot be independent without independent judges.


Garzón is usually referred to as a judge or as a magistrate – and he has the status and authority of a judge - but his role is much closer to that of prosecutor in the British and American legal systems. In Spain the criminal law allows proceedings to be initiated in a variety of ways. There is a state prosecution service conducted by a public prosecutor and a team of subordinate prosecutors who are state officials. Examining judges or magistrates like Garzón may also initiate and manage criminal investigations independently of the prosecution service and prosecutions may also be initiated by private individuals. Ultimately all prosecutions are subject to the overriding jurisdiction of the Supreme Court.

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