Baltasar Garzón
Encyclopedia
Baltasar Garzón Real is a Spanish
jurist who served on Spain's central criminal court, the Audiencia Nacional. He was the examining magistrate
of the Juzgado Central de Instrucción No. 5, which investigates the most important criminal cases in Spain, including terrorism
, organised crime and money laundering
.
In 1993-94 he was elected a deputy and briefly held a ministerial role in the Felipe González
's socialist government. Following his return to the Audiencia Nacional, he led a series of investigations that helped convict a government minister as the head of the Grupos Antiterroristas de Liberación
(GAL), a state terrorist
group.
Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former Chile
an president, General Augusto Pinochet
, for the alleged deaths and torture of Spanish citizens.
Garzón was indicted in April 2010 for exceeding his authority when investigating crimes committed by the Franco regime that were included in an amnesty, and suspended on 14 May 2010, pending trial. He has been given permission to work as a consultant at the International Criminal Court
in The Hague
for 7 months from May 2010.
, Garzón was appointed to the Audiencia Nacional in 1988, and rapidly made his name in Spain by pursuing the Basque
terrorist group ETA
.
In 1993, he asked for an extended leave of absence as a judge and went into politics
, running for the Congress of Deputies (the lower house of parliament) on the party list of then ruling party PSOE. He was also declared head of a strengthened National Plan Against Drugs by Prime Minister Felipe González
. He resigned this post shortly after being appointed, however, complaining of lack of support from the government.
, a state terrorist
group.
, would utilise Galician clans, already accustomed to smuggling in tabacco
, to smuggle drugs into Spain. In 1990, Operación Nécora
led to the conviction of members of the clan led by Laureano Oubiña. The following year he was involved in another investigation - Operación Pitón - which led to the conviction of members of the Charlines clan.
, the former mayor of Marbella
and owner of Atlético Madrid, on grounds of corruption. Gil was convicted in 2002 and died in 2004
: he has presided in many trials against alleged ETA members. In July 1998 he presided in a case against Orain S.A., the Basque communication company that published the newspaper Egin
and owned the radio station Egin Irratia. Garzón ordered the closure of both and sent some of the company officers to prison, due to their alleged links with ETA. These charges were later dropped for lack of evidence, and the journalists were released. Many years later Garzón imprisoned them again under the allegation of being part of ETA in a "broader" sense. Egin was allowed to reopen years later by the Audiencia Nacional, after all charges were found without foundation. In February 2003 Garzón also ordered the closure of Egunkaria
once again alleging links with ETA. In October 2002 Garzón suspended the operations of the Batasuna
party for three years, alleging direct connections with ETA. In February 2008 he also ordered the ban of two Basque nationalist parties, which had filled the political space of Batasuna: EHAK
and EAE-ANV
on the same grounds.
. He also ordered the exhumation of 19 unmarked mass graves, one of them believed to contain the remains of the poet Federico García Lorca
.
On 17 November 2008, Garzón said that he was dropping the investigation against Franco and his allies after state prosecutors questioned his jurisdiction over crimes committed 70 years ago by people who are now dead and whose crimes were covered by an amnesty
passed in 1977. In a 152-page statement, he passed responsibility to regional courts for opening 19 mass graves believed to hold the remains of hundreds of victims.
, was led by Garzón. This inquiry has been transferred to alternative courts following his indictment (see below)
an dictator Augusto Pinochet
for the alleged deaths and torture of Spanish citizens. The Chilean Truth Commission (1990–91) report was the basis for the warrant, marking an unprecedented use of universal jurisdiction
to attempt to try a former dictator for an international crime. Eventually it was turned down by British Home Secretary
Jack Straw
, who rejected (on health grounds) Garzón's request to have Pinochet extradited
to Spain.
Garzón also filed charges of genocide against Argentine military officers on the disappearance of Spanish citizens during Argentina
's 1976-1983 dictator
ship. Eventually Adolfo Scilingo
and Miguel Angel Cavallo were prosecuted in separate cases. Scilingo was convicted and sentenced to over 1000 years incarceration for his crimes.
Garzón issued indictments for five Guantanamo detainees, including Spaniard Abderrahman Ahmad and United Kingdom
resident Jamil El Banna. Ahmad was extradited to Spain on 14 February 2004. El Banna was repatriated to the United Kingdom, and in 2007, Garzon dropped the charges against him on humanitarian grounds.
for offering justifications for torture. The six former Bush officials are: Alberto Gonzales
, former Attorney General
;
John Yoo
, of the Office of Legal Counsel
;
Douglas Feith
, former undersecretary of defense for policy;
William Haynes II, former general counsel for the Department of Defense;
Jay Bybee
, also at Justice Department's Office of Legal Counsel; and
David Addington
, Vice President Dick Cheney
's Chief of Staff.
However, the investigation was assigned to Judge Eloy Velasco
who chose not to pursue it stating that Spain cannot investigate the case unless the U.S. denies to itself. In a U.S. diplomatic cable leaked by WikiLeaks
it is revealed that Chief Prosecutor Javier Zaragoza intended to argue that the case
should not be assigned to Judge Garzón, and in a later cable it is stated that Garzón was "forced to give up" the investigation. It is revealed that Zaragoza had strategized how to force Garzón to give up the case:
On 29 April 2009, Garzon opened an investigation into an alleged "systematic programme" of torture at Guantánamo Bay, following accusations by four former prisoners. Similarly, the leaked cable indicates that the Chief Prosecutor intended to also fight this investigation and that he feared, "Garzon may attempt to wring all the publicity he can from the case unless and until he is forced to give it up."
According to Andy Worthington
, writing in the Huffington Post, Spanish newspaper Público
reported in September 2009 that Garzón was proceeding to the next phase of his investigation.
Garzón has repeatedly expressed a desire to investigate former U.S.
Secretary of State
Henry Kissinger
in connection with a plot in the 1970s known as Operation Condor
.
s against Garzón for 'prevarication' which implies using his authority as a judge to intentionally subvert the course of justice. This is a very serious criminal offense punishable by suspension from any (Spanish) judicial activity for up to twenty years. It is not clear why the judicial authorities did not previously institute any internal inquiry or disciplinary proceedings (for example: following the public debate which followed the order of Garzón to open suspected Francoist era mass grave
s two years earlier, in September 2008), but instead preferred to rely on criminal accusation
s from two far right
Francoist organizations Falange
and Manos Limpias
in order to indict him. A (Spanish language) résumé of the three cases has been published by a leftist
Spanish national newspaper El País.
" (Clean Hands) filed a lawsuit against Garzón alleging that Garzón had abused his judicial authority by opening the inquiry. Garzón denied any wrongdoing.
In April 2010, Garzón was indicted by the Spanish Supreme Court for prevarication for arbitrarily changing his juridical criteria to engineer the case in order to bypass the law limiting his jurisdiction. If convicted, he could be barred from his duties for 20 years. Garzón's indictment has been highly divisive within Spain and controversial abroad. Amnesty International
and Human Rights Watch
condemned the indictment, and The New York Times
published an editorial supporting him, whereas The Wall Street Journal
condemned Garzón's proceedings in an editorial supporting the rule of law
. There were public protests in Spain from left wing organizations supporting Garzón.
The International Commission of Jurists
considers that his short-lived inquiry did not justify disciplinary action, let alone criminal prosecution, adding that the prosecution of judges for carrying out their professional work was "an inappropriate and unwarranted interference with the independence of the judicial process".
On April 24, 2010 Garzón presented an appeal to the Supreme Court against the judge investigating the case, Luciano Varela
for giving advice to the plaintiffs about the errors in their documents. Garzón accused the judge of partiality, in having "a direct interest in the proceedings and bias in the action" and having "worked closely with the plaintiffs by offering counsel or legal advice" intended help the complainants to correct a defect in their series of indictments to meet a deadline, an action which he defined as "atypical, extra-judicial and prejudicial to one of the parties" (i.e. him, as the accused). According to Garzón, "intervention by the instructing judge is not protected under any provision of the current legal procedural rules and is clearly unrelated to the substantive rules of Spanish court procedure". Luciano Varela
accepted the appeal and temporarily stepped out from the case until the Supreme Court rules on the appeal.
On Tuesday 11 May 2010 Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court
(ICC) requested that the Judiciary of Spain
might assign Garzon as a consultant to the ICC for six months, which would have allowed General Council of the Judicial Power of Spain
(La Comisión Permanente Extraordinaria del Consejo General del Poder Juidicial or CGPJ) to avoid suspending Garzon during the impending trial for investigating crimes committed during the Francisco Franco
era.
In response, Judge Varela bought forward his conclusion that Garzon should stand trial, and the CGPJ rejected the request of the ICC on the basis that it appeared to be simply a personal request by Moreno-Ocampo, rather than an official ICC invitation. On Friday 14 May 2010 Garzón was duly suspended from judicial activity (with pay) 'as a precaution, pending judgment' as a result of the decision of Judge Varela, which suspension is formally required by Spanish law. The CGPC subsequently declared that it would require five different certificates ('informes' in Spanish) to release Garzón to the ICC as a consultant for six months during his period of suspension from judicial activity. These were:
José Manuel Gómez Begresista, the president of the CGPJ's Commission for Studies & Reports, impugned each of the above five conditions, which he characterized as 'ridiculous' since Garzón had previously been assigned to such work, and no immunity from Spanish law attaches thereto. He went on to state that the decision taken by the CGPJ "lacked any legal grounds whatsoever".
Later that day, the CGPJ authorised the assignment of Garzón to the ICC.
Coincidentally, on the same day, The Grand Chamber of the European Court of Human Rights
in Strasbourg
delivered final judgement in the case Vassili Kononov v. Latvia
No. 36376/04, on 17 May 2010.
The Russian Federation had maintained that any prosecution of the applicant was statute-barred, as supported by the dissenting opinion of Judge Costa joined by Judges Kalaydjieva and Poalelungi, which is essentially analogous to the basis of the prosecution of Garzon: under "Article 15 of the European Convention on Human Rights
no derogation is permissible and In conclusion, [the dissident judges] consider that, in respect of Article 7 of the European Convention on Human Rights
However, in the prevailing and joint concurring opinion of judges Rozakis, Tulkens, Spielmann and Jebens, (Para #6 "the right approach, [] is that Article 7 of the Convention and the principles it enshrines require that in a rule-of-law system anyone considering carrying out a particular act should be able, by reference to the legal rules defining crimes and the corresponding penalties, to determine whether or not the act in question constitutes a crime and what penalty he or she faces if it is carried out. Hence no one can speak of retroactive application of substantive law, when a person is convicted, even belatedly, on the basis of rules existing at the time of the commission of the act." Since the Spanish State
of Franco had laws against kidnapping and killing, it might be difficult to argue that these acts were legal, even if they were directed by (Francoist) state officials, particularly as Garzón convicted the PSOE government officials promoting the GAL assassination squads.
He alleges that Juan Saavedra, Adolfo Prego Oliver, Joaquin Giménez, Francisco and Juan Ramon Berdugo Monterde should be disqualified from officiating in any way because they have participated in pre-trial activities and thus may have an interest in the outcome that might affect their impartiality. These five judges have intervened in the investigation of the case, and the defence claims that consequently - and according to a strict interpretation of the principle of nemo iudex in causa sua - such intervention demonstrates these five judges an indirect interest in the outcome of the process.
The background to this case is that conservative opinion generally asserts that "the dictatorship" is past, and exhuming its less savoury activities is injurious to modern Spanish political interests (as may be Garzón's extraterritorial attempts to accuse foreign nationals of crimes against humanity).
Certainly founding members of the People's Party
, such as Manuel Fraga
, were members of Franco's government, and there may be a fear that the more aggressively socialist opposition may wish to use these exhumations to imply thereby the intentions of modern Spanish political leaders may be less than entirely democratic, and that established political entities may seek to influence the course of justice (for example - between 2005-2010 - when the PP and PSOE denied the Spanish Senate
the necessary majority to approve fresh judges for the Constitutional Court of Spain
)
, Emilio Botín
, in return for payment for some courses sponsored by the bank in New York
between 2005 and 2006.
This appeal to the Supreme Court follows a charge previously archived by the criminal court, since the alleged 1.2 million euro fee was deemed by the lower court to be in fact 216,000 euros, which was not paid to Garzón, but to the university foundation.
, which, under Spanish law, it is claimed, is allowed only in terrorism
-related cases.
These indicate grave concern by the White House that Garzón was investigating possible "perpetrators, instigators, and accomplices" in the crimes of torture committed at Guantánamo known as The Bush Six
also to stop the proceedings initiated by fellow High Court judge Santiago Pedraz against the soldiers who used a tank to attack the The Palestine Hotel, which was used by many foreign journalists in Baghdad. The attack killed a Spanish television journalist José Couso
on April 8, 2003, and his family had lodged a formal complaint. The US authorities considered that these two investigations could be dangerous to U.S. interests.
Consequently U.S. jurists came to consult Spain's foreign affairs minister Miguel Ángel Moratinos
, and the vice-president of the government, Maria Teresa Fernandez de la Vega
, as well as the state prosecutor general, Attorney General Cándido Conde-Pumpido, the prosecutor of the High Court Vicente González Mota and other leading members of the Spanish judiciary.
In a report published by the Spanish newspaper El Pais, US Ambassador Eduardo Aguirre
the Secretary of State Condoleezza Rice
states that "(President of the Spanish Government) Zapatero holds a leftist pacifist foreign policy for the purpose of electioneering in Spanish politics, rather than to meet the basic priorities of foreign policy or broader strategic objectives (of Spain, and) This has resulted in an erratic bilateral zigzags relationship (between US-Spain) "
Subsequently, U.S. officials focused on the chief prosecutor of the Spanish High Court concerned with The Bush six
, Javier Zaragoza. William Duncan, a political advisor to the embassy, and a US lawyer went to see the prosecutor in his office on 1 April 2009. Duncan described the encounter in a cable dated the same day: "He explained that he would decide whether to open a criminal case. The evidence was on the table in his office in four red folders a foot high," According to the account Duncan gave the embassy, the prosecutor advised the legal representative of the defendants that, if the U.S. government opened its own investigation, then Spain could not continue to claim universal jurisdiction. Duncan concludes: "This is the formula that he would prefer" and called it the "only solution"
At the end of October 2010, the re-election of Judge Juan Saavedra to the Spanish Supreme Court Penal Division reactivated the three judicial processes against Garzón. The re-appointment of a right-wing judge may have suggested to the Spanish legal authorities that the complaints had sufficient weight to merit continuing the domestic process despite the rulings in the European Court of Human Rights cited above.
The political colonization of the Spanish Justice system is an increasingly recurrent theme in the Spanish center/left-wing media. More than 1,500 Spanish judges earlier this year criticized the influence of the major parties in the decisions of the Supreme Judicial Council (CGPJ) via a manifesto that for the first time exposed publicly what was claimed to be a long-standing open secret among Spanish lawyers.
In a recent book Garzón admits that he has at times exceeded the provision of domestic Spanish legislation (as in this case) but quotes external sources, including treaties that were unratified at the time.
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
jurist who served on Spain's central criminal court, the Audiencia Nacional. He was the examining magistrate
Examining magistrate
In an inquisitorial system of law the examining magistrate or investigating magistrate is a judge who carries out investigations into cases and arranges prosecutions....
of the Juzgado Central de Instrucción No. 5, which investigates the most important criminal cases in Spain, including terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
, organised crime and money laundering
Money laundering
Money laundering is the process of disguising illegal sources of money so that it looks like it came from legal sources. The methods by which money may be laundered are varied and can range in sophistication. Many regulatory and governmental authorities quote estimates each year for the amount...
.
In 1993-94 he was elected a deputy and briefly held a ministerial role in the Felipe González
Felipe González
Felipe González Márquez is a Spanish socialist politician. He was the General Secretary of the Spanish Socialist Workers' Party from 1974 to 1997. To date, he remains the longest-serving Prime Minister of Spain, after having served four successive mandates from 1982 to 1996.-Early life:Felipe was...
's socialist government. Following his return to the Audiencia Nacional, he led a series of investigations that helped convict a government minister as the head of the Grupos Antiterroristas de Liberación
Grupos Antiterroristas de Liberación
Grupos Antiterroristas de Liberación were death squads established illegally by officials of the Spanish government to fight ETA, the principal Basque separatist militant group. They were active from 1983 until 1987, under Spanish Socialist Workers Party -led governments...
(GAL), a state terrorist
State terrorism
State terrorism may refer to acts of terrorism conducted by a state against a foreign state or people. It can also refer to acts of violence by a state against its own people.-Definition:...
group.
Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
an president, General Augusto Pinochet
Augusto Pinochet
Augusto José Ramón Pinochet Ugarte, more commonly known as Augusto Pinochet , was a Chilean army general and dictator who assumed power in a coup d'état on 11 September 1973...
, for the alleged deaths and torture of Spanish citizens.
Garzón was indicted in April 2010 for exceeding his authority when investigating crimes committed by the Franco regime that were included in an amnesty, and suspended on 14 May 2010, pending trial. He has been given permission to work as a consultant at the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
for 7 months from May 2010.
Background
Born in Torres, JaénJaén, Spain
Jaén is a city in south-central Spain, the name is derived from the Arabic word Jayyan, . It is the capital of the province of Jaén. It is located in the autonomous community of Andalusia....
, Garzón was appointed to the Audiencia Nacional in 1988, and rapidly made his name in Spain by pursuing the Basque
Basque people
The Basques as an ethnic group, primarily inhabit an area traditionally known as the Basque Country , a region that is located around the western end of the Pyrenees on the coast of the Bay of Biscay and straddles parts of north-central Spain and south-western France.The Basques are known in the...
terrorist group ETA
ETA
ETA , an acronym for Euskadi Ta Askatasuna is an armed Basque nationalist and separatist organization. The group was founded in 1959 and has since evolved from a group promoting traditional Basque culture to a paramilitary group with the goal of gaining independence for the Greater Basque Country...
.
In 1993, he asked for an extended leave of absence as a judge and went into politics
Politics of Spain
The politics of Spain take place in the framework of a parliamentary representative democratic constitutional monarchy, whereby the Monarch is the Head of State and the President of the Government is the head of government in a multi-party system. Executive power is vested in the government...
, running for the Congress of Deputies (the lower house of parliament) on the party list of then ruling party PSOE. He was also declared head of a strengthened National Plan Against Drugs by Prime Minister Felipe González
Felipe González
Felipe González Márquez is a Spanish socialist politician. He was the General Secretary of the Spanish Socialist Workers' Party from 1974 to 1997. To date, he remains the longest-serving Prime Minister of Spain, after having served four successive mandates from 1982 to 1996.-Early life:Felipe was...
. He resigned this post shortly after being appointed, however, complaining of lack of support from the government.
GAL
His investigation in 1987 led to the conviction of José Barrionuevo Peña, the then Interior minister, as head of the GALGrupos Antiterroristas de Liberación
Grupos Antiterroristas de Liberación were death squads established illegally by officials of the Spanish government to fight ETA, the principal Basque separatist militant group. They were active from 1983 until 1987, under Spanish Socialist Workers Party -led governments...
, a state terrorist
State terrorism
State terrorism may refer to acts of terrorism conducted by a state against a foreign state or people. It can also refer to acts of violence by a state against its own people.-Definition:...
group.
Drug-trafficking
Garzón made his name as a magistrate through several police operations centred on drug-trafficking in Galicia. Colombian cartels, such as the Medellín CartelMedellín Cartel
The Medellín Cartel was an organized network of "drug suppliers and smugglers" originating in the city of Medellín, Colombia. The drug cartel operated in Colombia, Bolivia, Peru, Central America, the United States, as well as Canada and Europe throughout the 1970s and 1980s. It was founded and...
, would utilise Galician clans, already accustomed to smuggling in tabacco
Tabacco
Tabacco is a surname. Notable persons with the surname include:*Patrick Tabacco , French rugby player*Giorgio Tabacco, harpsichordist who worked with Marina Scalafiotti...
, to smuggle drugs into Spain. In 1990, Operación Nécora
Operación Nécora
Operation Necora was a major Spanish police operation against drug traffickers in Galicia, Spain. It led to the arrest of 54 people.-Background:...
led to the conviction of members of the clan led by Laureano Oubiña. The following year he was involved in another investigation - Operación Pitón - which led to the conviction of members of the Charlines clan.
Caso Atlético
About 1999 he investigated Jesús GilJesús Gil
Gregorio Jesús Gil y Gil was a Spanish businessman and politician. He served as Mayor of Marbella, between 1996 and 2002, and was also known for his 16-year stint as president of Spanish football club Atlético Madrid....
, the former mayor of Marbella
Marbella
Marbella is a town in Andalusia, Spain. It is situated on the Mediterranean Sea, in the province of Málaga, beneath the La Concha mountain. In 2000 the city had 98,823 inhabitants, in 2004, 116,234, in 2010 approximately 135,000....
and owner of Atlético Madrid, on grounds of corruption. Gil was convicted in 2002 and died in 2004
ETA
Garzón has also fought against ETAETA
ETA , an acronym for Euskadi Ta Askatasuna is an armed Basque nationalist and separatist organization. The group was founded in 1959 and has since evolved from a group promoting traditional Basque culture to a paramilitary group with the goal of gaining independence for the Greater Basque Country...
: he has presided in many trials against alleged ETA members. In July 1998 he presided in a case against Orain S.A., the Basque communication company that published the newspaper Egin
Egin (newspaper)
Egin was a Basque newspaper written in Spanish language and Basque language. It was published from Hernani by Orain SA, which also ran the radio station Egin Irratia.Its first issue was published on September 29, 1977....
and owned the radio station Egin Irratia. Garzón ordered the closure of both and sent some of the company officers to prison, due to their alleged links with ETA. These charges were later dropped for lack of evidence, and the journalists were released. Many years later Garzón imprisoned them again under the allegation of being part of ETA in a "broader" sense. Egin was allowed to reopen years later by the Audiencia Nacional, after all charges were found without foundation. In February 2003 Garzón also ordered the closure of Egunkaria
Egunkaria
Egunkaria was for thirteen years the only fully Basque language newspaper in circulation, until it was closed down on February 20, 2003 by the Spanish authorities, due to allegations of an illegal association with ETA, the armed Basque separatist group. After 7 years, on 15 April 2010 the...
once again alleging links with ETA. In October 2002 Garzón suspended the operations of the Batasuna
Batasuna
Batasuna was a Basque nationalist political party based mainly in Spain, where it was outlawed in 2003, after a court ruling declared proven that the party was financing ETA with public money. Batasuna is included in the "European Union list of terrorist persons and organizations" as a component...
party for three years, alleging direct connections with ETA. In February 2008 he also ordered the ban of two Basque nationalist parties, which had filled the political space of Batasuna: EHAK
Communist Party of the Basque Homelands
The Communist Party of the Basque Homelands was a communist Basque separatist party in the Basque Country, Spain...
and EAE-ANV
Eusko Abertzale Ekintza
Basque Nationalist Action is a Basque nationalist party based in Spain. Founded in 1930, it was the first Basque nationalist political party to exist running on a socialist program. On 16 September 2008, the party was outlawed by the Spanish Supreme Court based on ties with ETA...
on the same grounds.
Francoist atrocities
On 17 October 2008, Garzón formally declared the acts of repression committed by the Franco regime to be crimes against humanity, and accounted them in more than one hundred thousand killings during and after the Spanish Civil WarSpanish Civil War
The Spanish Civil WarAlso known as The Crusade among Nationalists, the Fourth Carlist War among Carlists, and The Rebellion or Uprising among Republicans. was a major conflict fought in Spain from 17 July 1936 to 1 April 1939...
. He also ordered the exhumation of 19 unmarked mass graves, one of them believed to contain the remains of the poet Federico García Lorca
Federico García Lorca
Federico del Sagrado Corazón de Jesús García Lorca was a Spanish poet, dramatist and theatre director. García Lorca achieved international recognition as an emblematic member of the Generation of '27. He is believed to be one of thousands who were summarily shot by anti-communist death squads...
.
On 17 November 2008, Garzón said that he was dropping the investigation against Franco and his allies after state prosecutors questioned his jurisdiction over crimes committed 70 years ago by people who are now dead and whose crimes were covered by an amnesty
Amnesty
Amnesty is a legislative or executive act by which a state restores those who may have been guilty of an offense against it to the positions of innocent people, without changing the laws defining the offense. It includes more than pardon, in as much as it obliterates all legal remembrance of the...
passed in 1977. In a 152-page statement, he passed responsibility to regional courts for opening 19 mass graves believed to hold the remains of hundreds of victims.
Caso Gürtel
A major corruption inquiry, code-named "Gürtel" from the name of its ringleader, Franscisco Correa, ("Gürtel" being German for "belt", which is the meaning of "correa" in Spanish), involving bribes to People's PartyPeople's Party (Spain)
The People's Party is a conservative political party in Spain.The People's Party was a re-foundation in 1989 of the People's Alliance , a party led and founded by Manuel Fraga Iribarne, a former Minister of Tourism during Francisco Franco's dictatorship...
, was led by Garzón. This inquiry has been transferred to alternative courts following his indictment (see below)
International cases
Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former ChileChile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
an dictator Augusto Pinochet
Augusto Pinochet
Augusto José Ramón Pinochet Ugarte, more commonly known as Augusto Pinochet , was a Chilean army general and dictator who assumed power in a coup d'état on 11 September 1973...
for the alleged deaths and torture of Spanish citizens. The Chilean Truth Commission (1990–91) report was the basis for the warrant, marking an unprecedented use of universal jurisdiction
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
to attempt to try a former dictator for an international crime. Eventually it was turned down by British Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
Jack Straw
Jack Straw
Jack Straw , British politician.Jack Straw may also refer to:* Jack Straw , English* "Jack Straw" , 1971 song by the Grateful Dead* Jack Straw by W...
, who rejected (on health grounds) Garzón's request to have Pinochet extradited
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
to Spain.
Garzón also filed charges of genocide against Argentine military officers on the disappearance of Spanish citizens during Argentina
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
's 1976-1983 dictator
Dictator
A dictator is a ruler who assumes sole and absolute power but without hereditary ascension such as an absolute monarch. When other states call the head of state of a particular state a dictator, that state is called a dictatorship...
ship. Eventually Adolfo Scilingo
Adolfo Scilingo
Adolfo Scilingo was an Argentine naval officer who is currently serving 30 years in a Spanish prison after being convicted on April 19, 2005 for crimes against humanity, including extra-judicial execution.-Charges:Scilingo was charged under Spain's universal jurisdiction laws by investigating...
and Miguel Angel Cavallo were prosecuted in separate cases. Scilingo was convicted and sentenced to over 1000 years incarceration for his crimes.
Garzón issued indictments for five Guantanamo detainees, including Spaniard Abderrahman Ahmad and United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
resident Jamil El Banna. Ahmad was extradited to Spain on 14 February 2004. El Banna was repatriated to the United Kingdom, and in 2007, Garzon dropped the charges against him on humanitarian grounds.
The Bush Six
In March 2009, Garzón considered whether Spain should allow charges to be filed against former officials from the United States government under George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
for offering justifications for torture. The six former Bush officials are: Alberto Gonzales
Alberto Gonzales
Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...
, former Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
;
John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
, of the Office of Legal Counsel
Office of Legal Counsel
The Office of Legal Counsel is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.-History:...
;
Douglas Feith
Douglas Feith
Douglas J. Feith served as the Under Secretary of Defense for Policy for United States President George W. Bush from July 2001 until August 2005. His official responsibilities included the formulation of defense planning guidance and forces policy, United States Department of Defense relations...
, former undersecretary of defense for policy;
William Haynes II, former general counsel for the Department of Defense;
Jay Bybee
Jay Bybee
Jay Scott Bybee is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and taught law school; his primary interests are in constitutional and administrative law....
, also at Justice Department's Office of Legal Counsel; and
David Addington
David Addington
David Spears Addington , was legal counsel and chief of staff to former Vice President Dick Cheney, and is now vice president of domestic and economic policy studies at The Heritage Foundation....
, Vice President Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
's Chief of Staff.
However, the investigation was assigned to Judge Eloy Velasco
Eloy Velasco
Eloy Velasco is a Spanish High Court Judge, known for being responsible to determine whether or not six former Bush officials should face criminal charges in Spain...
who chose not to pursue it stating that Spain cannot investigate the case unless the U.S. denies to itself. In a U.S. diplomatic cable leaked by WikiLeaks
Wikileaks
WikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
it is revealed that Chief Prosecutor Javier Zaragoza intended to argue that the case
should not be assigned to Judge Garzón, and in a later cable it is stated that Garzón was "forced to give up" the investigation. It is revealed that Zaragoza had strategized how to force Garzón to give up the case:
"Zaragoza said he had challenged Garzon directly and personally on this latest case, asking if he was trying to drum up more speaking fees. Garzon replied he was doing it for the record only and would let it die. Zaragoza opined that Garzon, having gotten his headline, would soon drop the matter. In case he does not, Zaragoza has a strategy to force his hand. Zaragoza's strategy hinges on the older case in which Garzon investigated terrorism complaints against some Guantanamo detainees. In connection with those earlier investigations, Garzon ordered the Spanish police to visit Guantanamo and collect evidence against the suspected terrorists. Zaragoza reasons that he can use this fact to embarrass Garzon into dropping this latest case by suggesting Garzon in some sense condoned the U.S. approach to detainee issues circa 2004. Garzon took no action in 2004 when the suspects returned to Spain and reported to him their alleged mistreatment. Zaragoza said that if Garzon could not be shamed into dropping the case, then he would formally recommend Garzon do so and appeal if Garzon ignored him."
On 29 April 2009, Garzon opened an investigation into an alleged "systematic programme" of torture at Guantánamo Bay, following accusations by four former prisoners. Similarly, the leaked cable indicates that the Chief Prosecutor intended to also fight this investigation and that he feared, "Garzon may attempt to wring all the publicity he can from the case unless and until he is forced to give it up."
According to Andy Worthington
Andy Worthington
Andy Worthington is a British historian, journalist, and film director.He has published three books, and been published in numerous publications.In 2009 Worthington was the co-director of a documentary about the Guantanamo detainees....
, writing in the Huffington Post, Spanish newspaper Público
Público (Spain)
Público is a Spanish daily national newspaper launched on September 26, 2007. It is owned by the media group Mediapro....
reported in September 2009 that Garzón was proceeding to the next phase of his investigation.
Garzón has repeatedly expressed a desire to investigate former U.S.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Secretary of State
Secretary of State
Secretary of State or State Secretary is a commonly used title for a senior or mid-level post in governments around the world. The role varies between countries, and in some cases there are multiple Secretaries of State in the Government....
Henry Kissinger
Henry Kissinger
Heinz Alfred "Henry" Kissinger is a German-born American academic, political scientist, diplomat, and businessman. He is a recipient of the Nobel Peace Prize. He served as National Security Advisor and later concurrently as Secretary of State in the administrations of Presidents Richard Nixon and...
in connection with a plot in the 1970s known as Operation Condor
Operation Condor
Operation Condor , was a campaign of political repression involving assassination and intelligence operations officially implemented in 1975 by the right-wing dictatorships of the Southern Cone of South America...
.
Appearance before the Spanish Supreme Court
The Supreme Court of Spain has declared admissible three criminal accusationCriminal accusation
A criminal accusation is the process of declaring one's belief in another's liability for that other's criminal action. A criminal accusation may be informally made through a declaration made to the public at large or by the filing of a formal accusation in a court of law by a person legally...
s against Garzón for 'prevarication' which implies using his authority as a judge to intentionally subvert the course of justice. This is a very serious criminal offense punishable by suspension from any (Spanish) judicial activity for up to twenty years. It is not clear why the judicial authorities did not previously institute any internal inquiry or disciplinary proceedings (for example: following the public debate which followed the order of Garzón to open suspected Francoist era mass grave
Mass grave
A mass grave is a grave containing multiple number of human corpses, which may or may not be identified prior to burial. There is no strict definition of the minimum number of bodies required to constitute a mass grave, although the United Nations defines a mass grave as a burial site which...
s two years earlier, in September 2008), but instead preferred to rely on criminal accusation
Criminal accusation
A criminal accusation is the process of declaring one's belief in another's liability for that other's criminal action. A criminal accusation may be informally made through a declaration made to the public at large or by the filing of a formal accusation in a court of law by a person legally...
s from two far right
Far right
Far-right, extreme right, hard right, radical right, and ultra-right are terms used to discuss the qualitative or quantitative position a group or person occupies within right-wing politics. Far-right politics may involve anti-immigration and anti-integration stances towards groups that are...
Francoist organizations Falange
Falange
The Spanish Phalanx of the Assemblies of the National Syndicalist Offensive , known simply as the Falange, is the name assigned to several political movements and parties dating from the 1930s, most particularly the original fascist movement in Spain. The word means phalanx formation in Spanish....
and Manos Limpias
Manos Limpias
Manos Limpias is a fascist trade union registered in Spain. The group was inspired and founded in Madrid in 1995 by the Spanish lawyer Miguel Bernad Remón, as an organization representing employees of the Spanish public services. The union has no institutional representation as of 2009...
in order to indict him. A (Spanish language) résumé of the three cases has been published by a leftist
Left-wing politics
In politics, Left, left-wing and leftist generally refer to support for social change to create a more egalitarian society...
Spanish national newspaper El País.
Crimes against humanity committed by Franco’s government
In October 2008, Garzón opened a controversial inquiry into alleged crimes against humanity committed by the Nationalist government during the Spanish Civil War and the years that followed the war. This action was controversial because the offenses were nearly 70 years old, previous to the concept of crimes against humanity, and a 1977 general amnesty act barred any investigations related to criminal offenses with a political aim previous to 1976. In 2008 the inquiry was suspended. In September 2009, a fascist trade union called "Manos limpiasManos Limpias
Manos Limpias is a fascist trade union registered in Spain. The group was inspired and founded in Madrid in 1995 by the Spanish lawyer Miguel Bernad Remón, as an organization representing employees of the Spanish public services. The union has no institutional representation as of 2009...
" (Clean Hands) filed a lawsuit against Garzón alleging that Garzón had abused his judicial authority by opening the inquiry. Garzón denied any wrongdoing.
In April 2010, Garzón was indicted by the Spanish Supreme Court for prevarication for arbitrarily changing his juridical criteria to engineer the case in order to bypass the law limiting his jurisdiction. If convicted, he could be barred from his duties for 20 years. Garzón's indictment has been highly divisive within Spain and controversial abroad. Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
and Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
condemned the indictment, and The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
published an editorial supporting him, whereas The Wall Street Journal
The Wall Street Journal
The Wall Street Journal is an American English-language international daily newspaper. It is published in New York City by Dow Jones & Company, a division of News Corporation, along with the Asian and European editions of the Journal....
condemned Garzón's proceedings in an editorial supporting the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. There were public protests in Spain from left wing organizations supporting Garzón.
The International Commission of Jurists
International Commission of Jurists
The International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...
considers that his short-lived inquiry did not justify disciplinary action, let alone criminal prosecution, adding that the prosecution of judges for carrying out their professional work was "an inappropriate and unwarranted interference with the independence of the judicial process".
On April 24, 2010 Garzón presented an appeal to the Supreme Court against the judge investigating the case, Luciano Varela
Luciano Varela
Luciano Varela Castro is a senior Spanish Judge. He was born at and is married with four children.- Career :...
for giving advice to the plaintiffs about the errors in their documents. Garzón accused the judge of partiality, in having "a direct interest in the proceedings and bias in the action" and having "worked closely with the plaintiffs by offering counsel or legal advice" intended help the complainants to correct a defect in their series of indictments to meet a deadline, an action which he defined as "atypical, extra-judicial and prejudicial to one of the parties" (i.e. him, as the accused). According to Garzón, "intervention by the instructing judge is not protected under any provision of the current legal procedural rules and is clearly unrelated to the substantive rules of Spanish court procedure". Luciano Varela
Luciano Varela
Luciano Varela Castro is a senior Spanish Judge. He was born at and is married with four children.- Career :...
accepted the appeal and temporarily stepped out from the case until the Supreme Court rules on the appeal.
On Tuesday 11 May 2010 Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(ICC) requested that the Judiciary of Spain
Judiciary of Spain
The Judiciary of Spain consists of Courts and Tribunals, composed of judges and magistrates , who have the power to administer justice in the name of the King of Spain....
might assign Garzon as a consultant to the ICC for six months, which would have allowed General Council of the Judicial Power of Spain
General Council of the Judicial Power of Spain
The General Council of the Judiciary is the constitutional body that governs all the Judiciary of Spain, such as courts, and judges, as it is established by the Spanish Constitution of 1978, article 122 and developed by the Organic Law 6/1985 of the Judiciary Power...
(La Comisión Permanente Extraordinaria del Consejo General del Poder Juidicial or CGPJ) to avoid suspending Garzon during the impending trial for investigating crimes committed during the Francisco Franco
Francisco Franco
Francisco Franco y Bahamonde was a Spanish general, dictator and head of state of Spain from October 1936 , and de facto regent of the nominally restored Kingdom of Spain from 1947 until his death in November, 1975...
era.
In response, Judge Varela bought forward his conclusion that Garzon should stand trial, and the CGPJ rejected the request of the ICC on the basis that it appeared to be simply a personal request by Moreno-Ocampo, rather than an official ICC invitation. On Friday 14 May 2010 Garzón was duly suspended from judicial activity (with pay) 'as a precaution, pending judgment' as a result of the decision of Judge Varela, which suspension is formally required by Spanish law. The CGPC subsequently declared that it would require five different certificates ('informes' in Spanish) to release Garzón to the ICC as a consultant for six months during his period of suspension from judicial activity. These were:
- That the public prosecutor (which opposes the trial of Garzón) certify that there would be no conflict of interest
- That the Supreme Court of SpainSupreme Court of SpainThe Supreme Court of Spain is the highest court in Spain for all matters not pertaining to the Spanish Constitution. The court which meets in the Convent of the Salesas Reales in Madrid, consists of a president and an indeterminate number of magistrates appointed to the five chambers of the...
(hearing the case against Garzón) would not be delayed or inconvenienced - That the ICC certify the appointment would not provide immunityImmunity from prosecution (international law)Immunity from prosecution is a doctrine of international law that allows an accused to avoid prosecution for criminal offences. Immunities are of two types. The first is functional immunity, or immunity ratione materiae. This is an immunity granted to people who perform certain functions of...
for Garzón from either outstanding or future criminal process in Spain - That Spain's Ministry of Foreign Affairs and Cooperation declare the appointment of Garzón to be in the national interestNational interestThe national interest, often referred to by the French expression raison d'État , is a country's goals and ambitions whether economic, military, or cultural. The concept is an important one in international relations where pursuit of the national interest is the foundation of the realist...
of Spain - That the Secretary General of the CGPJ was satisfied that all of the above certificates were appropriate and legally valid for this temporary assignment.
José Manuel Gómez Begresista, the president of the CGPJ's Commission for Studies & Reports, impugned each of the above five conditions, which he characterized as 'ridiculous' since Garzón had previously been assigned to such work, and no immunity from Spanish law attaches thereto. He went on to state that the decision taken by the CGPJ "lacked any legal grounds whatsoever".
Later that day, the CGPJ authorised the assignment of Garzón to the ICC.
Coincidentally, on the same day, The Grand Chamber of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
in Strasbourg
Strasbourg
Strasbourg is the capital and principal city of the Alsace region in eastern France and is the official seat of the European Parliament. Located close to the border with Germany, it is the capital of the Bas-Rhin département. The city and the region of Alsace are historically German-speaking,...
delivered final judgement in the case Vassili Kononov v. Latvia
Latvia
Latvia , officially the Republic of Latvia , is a country in the Baltic region of Northern Europe. It is bordered to the north by Estonia , to the south by Lithuania , to the east by the Russian Federation , to the southeast by Belarus and shares maritime borders to the west with Sweden...
No. 36376/04, on 17 May 2010.
The Russian Federation had maintained that any prosecution of the applicant was statute-barred, as supported by the dissenting opinion of Judge Costa joined by Judges Kalaydjieva and Poalelungi, which is essentially analogous to the basis of the prosecution of Garzon: under "Article 15 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
no derogation is permissible and In conclusion, [the dissident judges] consider that, in respect of Article 7 of the European Convention on Human Rights
Article 7 of the European Convention on Human Rights
Article 7 of the European Convention on Human Rights is an article of the European Convention on Human Rights which prevents retrospective punishment for crimes.The article states:...
- (a) the legal basis of the applicant's [previous] prosecution and conviction was not sufficiently clear in 1944;
- (b) [the current legislation] it was not reasonably foreseeable at that time either, particularly by the applicant himself;
- (c) prosecution of the offense was, moreover, statute-barred from 1954 under the applicable domestic legislation;
- (d) and, as a consequence, the finding that the applicant's acts were not subject to statutory limitation, thus resulting in his conviction, amounted to retrospective application of the criminal law to his detriment."
However, in the prevailing and joint concurring opinion of judges Rozakis, Tulkens, Spielmann and Jebens, (Para #6 "the right approach, [] is that Article 7 of the Convention and the principles it enshrines require that in a rule-of-law system anyone considering carrying out a particular act should be able, by reference to the legal rules defining crimes and the corresponding penalties, to determine whether or not the act in question constitutes a crime and what penalty he or she faces if it is carried out. Hence no one can speak of retroactive application of substantive law, when a person is convicted, even belatedly, on the basis of rules existing at the time of the commission of the act." Since the Spanish State
Spanish State
Francoist Spain refers to a period of Spanish history between 1936 and 1975 when Spain was under the authoritarian dictatorship of Francisco Franco....
of Franco had laws against kidnapping and killing, it might be difficult to argue that these acts were legal, even if they were directed by (Francoist) state officials, particularly as Garzón convicted the PSOE government officials promoting the GAL assassination squads.
Garzón challenges Spanish Judges' impartiality in Franco case
On 17 December 2010 Garzon challenged five of the seven Supreme Court justices that could be appointed to judge him for his activities in respect of the exhumation of Franco victims.He alleges that Juan Saavedra, Adolfo Prego Oliver, Joaquin Giménez, Francisco and Juan Ramon Berdugo Monterde should be disqualified from officiating in any way because they have participated in pre-trial activities and thus may have an interest in the outcome that might affect their impartiality. These five judges have intervened in the investigation of the case, and the defence claims that consequently - and according to a strict interpretation of the principle of nemo iudex in causa sua - such intervention demonstrates these five judges an indirect interest in the outcome of the process.
The background to this case is that conservative opinion generally asserts that "the dictatorship" is past, and exhuming its less savoury activities is injurious to modern Spanish political interests (as may be Garzón's extraterritorial attempts to accuse foreign nationals of crimes against humanity).
Certainly founding members of the People's Party
People's Party (Spain)
The People's Party is a conservative political party in Spain.The People's Party was a re-foundation in 1989 of the People's Alliance , a party led and founded by Manuel Fraga Iribarne, a former Minister of Tourism during Francisco Franco's dictatorship...
, such as Manuel Fraga
Manuel Fraga Iribarne
Manuel Fraga Iribarne is a Spanish People's Party politician. Fraga's career as one of the key political figures in Spain straddles both General Francisco Franco's dictatorial regime and the subsequent transition to democracy. He served as the President of the Xunta of Galicia from 1990 to 2005...
, were members of Franco's government, and there may be a fear that the more aggressively socialist opposition may wish to use these exhumations to imply thereby the intentions of modern Spanish political leaders may be less than entirely democratic, and that established political entities may seek to influence the course of justice (for example - between 2005-2010 - when the PP and PSOE denied the Spanish Senate
Spanish Senate
The Senate of Spain is the upper house of Spain's parliament, the . It is made up of 264 members: 208 elected by popular vote, and 56 appointed by the regional legislatures. All senators serve four-year terms, though regional legislatures may recall their appointees at any time.The last election...
the necessary majority to approve fresh judges for the Constitutional Court of Spain
Constitutional Court of Spain
thumb|300px|The [[Domenico Scarlatti]] Building located in [[Madrid]], seat of the Constitutional Court of Justice of Spain.The Constitutional Court of Spain is the highest judicial body with the power to determine the constitutionality of acts and statutes of the Spanish Government. It is...
)
Banco Santander corruption allegation
The allegation is that Garzón archived (adjourned sine die) a case against the director of SantanderGrupo Santander
The Santander Group is a banking group centered on Banco Santander, S.A., the largest bank in the Eurozone and one of the largest banks in the world in terms of market capitalisation. According to Forbes Magazine Global 2000, it is the 13th largest public company in the world...
, Emilio Botín
Emilio Botin
Emilio Botín-Sanz de Sautuola y García de los Ríos, 1st Marquis of O'Shea, is a Spanish banker. He is the Executive Chairman of Spain's Grupo Santander...
, in return for payment for some courses sponsored by the bank in New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
between 2005 and 2006.
This appeal to the Supreme Court follows a charge previously archived by the criminal court, since the alleged 1.2 million euro fee was deemed by the lower court to be in fact 216,000 euros, which was not paid to Garzón, but to the university foundation.
Allegation of improper eavesdropping order between prisoners and counsel
The accused in a massive corruption inquiry, code-named "Gürtel" sought to have evidence against them ignored. The accused are asking that the evidence be ruled inadmissible, since it was obtained from conversations between prisoners and counselTelephone tapping
Telephone tapping is the monitoring of telephone and Internet conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitoring connection was an actual electrical tap on the telephone line...
, which, under Spanish law, it is claimed, is allowed only in terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
-related cases.
U.S. Embassy cables
The U.S. Embassy in Madrid is one of the delegations from which documents have been leaked to WikileaksWikileaks
WikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
These indicate grave concern by the White House that Garzón was investigating possible "perpetrators, instigators, and accomplices" in the crimes of torture committed at Guantánamo known as The Bush Six
The Bush Six
The Bush Six is a term which refers to six former officials of the United States government under the presidency of George W. Bush , following the filing of criminal charges against them in Spain....
also to stop the proceedings initiated by fellow High Court judge Santiago Pedraz against the soldiers who used a tank to attack the The Palestine Hotel, which was used by many foreign journalists in Baghdad. The attack killed a Spanish television journalist José Couso
José Couso
José Couso Permuy was a Spanish cameraman who was one of the April 8, 2003 journalist deaths by U.S. fire after a U.S. tank fired at the Palestine Hotel in Baghdad, Iraq during the 2003 Iraq invasion.-Biography:...
on April 8, 2003, and his family had lodged a formal complaint. The US authorities considered that these two investigations could be dangerous to U.S. interests.
Consequently U.S. jurists came to consult Spain's foreign affairs minister Miguel Ángel Moratinos
Miguel Ángel Moratinos
Miguel Ángel Moratinos Cuyaubé is a Spanish diplomat and politician, a member of the Socialist Workers' Party and member of Congress where he represents Córdoba....
, and the vice-president of the government, Maria Teresa Fernandez de la Vega
María Teresa Fernández de la Vega
María Teresa Fernández de la Vega Sanz, LLD is a Spanish Valencian Socialist politician. From 18 April 2004 to 20 October 2010, she was the First Deputy Prime Minister, Minister of the Presidency and Cabinet Spokesperson in the government of Spanish Prime Minister José Luis Rodríguez Zapatero...
, as well as the state prosecutor general, Attorney General Cándido Conde-Pumpido, the prosecutor of the High Court Vicente González Mota and other leading members of the Spanish judiciary.
In a report published by the Spanish newspaper El Pais, US Ambassador Eduardo Aguirre
Eduardo Aguirre
Eduardo Aguirre Reyes, Jr. , is a principal in Atlantic Partners, an international consulting firm, based in Houston....
the Secretary of State Condoleezza Rice
Condoleezza Rice
Condoleezza Rice is an American political scientist and diplomat. She served as the 66th United States Secretary of State, and was the second person to hold that office in the administration of President George W. Bush...
states that "(President of the Spanish Government) Zapatero holds a leftist pacifist foreign policy for the purpose of electioneering in Spanish politics, rather than to meet the basic priorities of foreign policy or broader strategic objectives (of Spain, and) This has resulted in an erratic bilateral zigzags relationship (between US-Spain) "
Subsequently, U.S. officials focused on the chief prosecutor of the Spanish High Court concerned with The Bush six
The Bush Six
The Bush Six is a term which refers to six former officials of the United States government under the presidency of George W. Bush , following the filing of criminal charges against them in Spain....
, Javier Zaragoza. William Duncan, a political advisor to the embassy, and a US lawyer went to see the prosecutor in his office on 1 April 2009. Duncan described the encounter in a cable dated the same day: "He explained that he would decide whether to open a criminal case. The evidence was on the table in his office in four red folders a foot high," According to the account Duncan gave the embassy, the prosecutor advised the legal representative of the defendants that, if the U.S. government opened its own investigation, then Spain could not continue to claim universal jurisdiction. Duncan concludes: "This is the formula that he would prefer" and called it the "only solution"
Current Situation
Since June 2010 Garzón has worked as a consultant to the ICC. and the legal processes were left in abeyance.At the end of October 2010, the re-election of Judge Juan Saavedra to the Spanish Supreme Court Penal Division reactivated the three judicial processes against Garzón. The re-appointment of a right-wing judge may have suggested to the Spanish legal authorities that the complaints had sufficient weight to merit continuing the domestic process despite the rulings in the European Court of Human Rights cited above.
The political colonization of the Spanish Justice system is an increasingly recurrent theme in the Spanish center/left-wing media. More than 1,500 Spanish judges earlier this year criticized the influence of the major parties in the decisions of the Supreme Judicial Council (CGPJ) via a manifesto that for the first time exposed publicly what was claimed to be a long-standing open secret among Spanish lawyers.
In a recent book Garzón admits that he has at times exceeded the provision of domestic Spanish legislation (as in this case) but quotes external sources, including treaties that were unratified at the time.
See also
- Carmelo SoriaCarmelo SoriaCarmelo Soria was a Spanish-Chilean United Nations diplomat. A member of the CEPAL in the 1970s, he was assassinated by Chile's DINA agents as a part of Operation Condor...
, Spanish diplomat assassinated in 1976 by the Chilean DINA - Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Universal jurisdictionUniversal jurisdictionUniversal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
External links
- Biography at SpainView
- Judge Garzón: Introduction to a Life, article at StanfordStanford UniversityThe Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...
- BBC News - Profile: Judge Baltasar Garzon
- Judge Garzon Support Page
- Baltasar Garzón y José María Mena en Canal-L: "El crimen organizado siempre busca espacios de impunidad"