Wednesday, February 1, 2012

A need for support of Garzón in trial for alleged “abuse of process” in Spanish Civil War cases

Judges in Madrid hearing the case against Baltasar Garzón, magistrate in the Audiencia Nacional, or Spanish federal court, overruled defense objections and decided yesterday to continue the trial.
Garzón, you’ll recall, is the judge who issued an arrest warrant alleging that former Chilean dictator Augusto Pinochet, as well as his counterparts in the Argentine military command, were responsible for genocide, torture and terrorism. (Prior IntLawGrrls posts on Garzón)
Garzón’s arrest warrants touched off extradition proceedings in London, and eventually contributed to legal proceedings against Pinochet in Chile. (If you’ll allow a bit of self-promotion, that story is told in my book The Pinochet Effect (2005)). (credit for book cover below left)
Garzón’s theory in those cases, approved at the time by the entire Audiencia Nacional, was that neither a statute of limitations nor an amnesty law could preclude investigation into crimes against humanity. As we’ve blogged about before, Garzón’s theory has been widely accepted by Spanish prosecutors, by international courts, and by the courts of most Latin American countries.
Trouble came when Garzón tried to apply this same theory to his own country’s historical crimes.
No one has ever been held accountable for the crimes of the Spanish Civil War waged between 1936 and 1939; more importantly, there are up to 152,000 dead still unidentified in unmarked graves. (Following the war, the victor, General Francisco Franco, ruled Spain as a dictatorship for decades.) Family members of some of those people asked the Audiencia Nacional to investigate, hoping to recover the remains of their loved ones so that they could be reburied properly.
Garzón got the case by lottery. His initial ruling that he could exercise jurisdiction because this was an international crime set off a firestorm.
A shadowy far-right group brought a case against Garzón, alleging that he had deliberately flouted the law by claiming jurisdiction, thus committing the crime of prevaricación (imperfectly translated as “abuse of authority”).
Although such a claim had no precedent and raised clear issues of interference with judicial independence, the judge assigned to consider the claim went out of his way to help the complainants, and, surprisingly, was backed up by the Supreme Court. Explanations abound:
► Professional jealousy of Garzón’s international stature;
► Desire to squelch cases based on international law in the Spanish courts; and a
► Lingering pro-Franco element in the judiciary.
Whatever the cause, the case resulted in Garzón’s suspension from the bench in May of last year; as IntLawGrrl Diane Marie Amann has posted, since that time he's been acting as an advisor to the International Criminal Court.
Garzón’s trial started last month. On his part, Garzón has filed a complaint with the European Court of Human Rights, arguing that the proceedings against him are an improper interference with the independence of the judiciary.
One of the most troubling aspects of yesterday’s ruling was the court majority’s approval of earlier decisions not to allow international law experts to advise the court on the validity of Garzón’s legal theory, which, after all, was based on international law. The court also threw out challenges to the neutrality of the investigating magistrate.
On a positive note, Garzón was able to testify yesterday.
He spoke of the underlying issues in the case, including the unresolved nature of many Civil War-era crimes. He was able to explain how international law supports his theories on statute of limitations and amnesty, and how his ruling is within the mainstream of legal theory. (credit for video clip above)
And defense witnesses added their own testimony today.
Nonetheless, the very fact that this case has not yet been dismissed is a travesty, reflecting badly on the professionalism and seriousness of the Spanish court system.
International pressure will be needed to ensure that Garzón is not railroaded as a means to make a political point about what is still off limits in Spanish political discourse.

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