The Civil War politics behind the trial of Spanish Judge Garzon

Originally published on Mar 18th, 2012

Three tri­als con­cern­ing accus­a­tions of cor­rup­tion and abuse of office have been taken against cru­sad­ing Span­ish Judge Baltasar Gar­zon, known inter­na­tion­ally for his work invest­ig­at­ing crimes against human­ity. The ver­dict of one trial, delivered last week by the same seven judge panel that is hear­ing the other cases against Gar­zon, res­ul­ted in an eleven year dis­bar­ment order, with no recourse for appeal. Was it a case of the law being fairly applied irre­spect­ive of status or is it a polit­ical witch hunt against a man who many view as a polit­ical nuisance?

Mr. Gar­zon is primar­ily known for his invest­ig­a­tions into drug traf­fick­ing, ter­ror­ism and crimes against human­ity. He first came to inter­na­tional prom­in­ence in 1998 when he used the prin­ciple of uni­ver­sal justice to issue an inter­na­tional arrest war­rant for former Chilean Pres­id­ent, Gen­eral Augusto Pinochet. On the strength of Garzon’s war­rant, Pinochet was appre­hen­ded in Lon­don. Although even­tu­ally released from house arrest without hav­ing stood trial for alleged war crimes, Pinochet’s appre­hen­sion was a major mile­stone for inter­na­tional crim­inal law.

Dark shad­ows of the civil war

Although cel­eb­rated inter­na­tion­ally, Gar­zon is con­sidered a divis­ive fig­ure in Spain. His attempts to invest­ig­ate Franco-era abuses have made him unpop­u­lar in the coun­try which remains largely unin­ter­ested in examin­ing its own past.

Dur­ing Spain’s bru­tal Civil War, between 1936-39, and the ensu­ing years of Gen­eral Franco’s dic­tat­or­ship, thou­sands of Span­iards were for­cibly dis­ap­peared and sum­mar­ily executed; his­tor­i­ans gen­er­ally con­cur the fig­ure of those dis­ap­peared to have been at least 100,000, with some claim­ing it could be as high as 200,000. Most of the vic­tims were bur­ied in unmarked, mass graves.

It is a dark chapter in Spain’s his­tory, one that the coun­try has con­tinu­ally ignored for dec­ades. Gen­eral Franco died in 1975. Two years later an amnesty law was passed, applic­able to any per­son com­pli­cit in Franco-era crimes and atro­cit­ies. The vic­tims remained bur­ied in mass graves and the per­pet­rat­ors got on with their lives. Roughly 50% of Span­iards repor­ted never speak­ing about the Civil war and its leg­acy at home; close to 40% say they were never taught about it at school.

In the early 2000s, small groups of volun­teers, mostly the des­cend­ants of vic­tims, began efforts to loc­ate mass graves and exhume and identify the remains found. They received no state assist­ance but per­severed non­ethe­less, usu­ally at great fin­an­cial and per­sonal cost. In 2007, a half hearted attempt at legal recog­ni­tion for vic­tims, the Law of His­tor­ical Memory, was passed but was widely cri­ti­cised across the polit­ical spec­trum; some said it went too far, oth­ers said it did not go far enough. It did, how­ever, open his­tor­ical archives and revealed the exist­ence of 2,000 mass graves around the country.

Invest­ig­at­ing the investigator

In 2008, Judge Gar­zon launched an invest­ig­a­tion into Franco-era atro­cit­ies. He argued his invest­ig­a­tion was aimed at determ­in­ing if the mass dis­ap­pear­ances and exe­cu­tions con­sti­tuted crimes against human­ity; if they did, accord­ing to inter­na­tional crim­inal law they would be con­sidered too great an offence for the per­pet­rat­ors to receive an amnesty and attempts at pro­sec­u­tion could be made.

Last week’s Supreme Court ver­dict which res­ul­ted in Garzon’s dis­bar­ment for eleven years is actu­ally the res­ult of another trial, where Gar­zon was accused of abus­ing his author­ity by order­ing the wire tap­ping of lawyer-client com­mu­nic­a­tions, dur­ing the course of a polit­ical cor­rup­tion case. As Span­ish law allows, the case against Gar­zon was taken by a private indi­vidual, not the state pro­sec­utor. In fact the state pro­sec­utor peti­tioned the Supreme Court to throw out the case against Gar­zon, arguing the case had no legal ground­ing, inad­equate evid­ence and dis­played wor­ry­ing signs of being polit­ic­ally motivated.

Supreme Court Justice Alberto Jorge claims the inter­cep­tion of lawyer-client com­mu­nic­a­tions viol­ates the cli­ents right to a legal defence and the law­yers right to pri­vacy. Gar­zon refutes this claim, point­ing out the cli­ents com­mu­nic­a­tions were inter­cep­ted but not the lawyer’s replies and the inter­cep­tions were made due to well foun­ded sus­pi­cions that the law­yers were passing on instruc­tions for crim­inal activ­ity from their cli­ents. Under these cir­cum­stances Garzon’s actions were legal.

The Ver­dict and Outcome

Garzon’s sup­port­ers claim the trial is polit­ic­ally motiv­ated and aimed at pun­ish­ing the Judge for prob­ing Spain’s past. In Thursday’s ver­dict, the rul­ing com­pared Garzon’s actions to those “only found in total­it­arian regimes,” The com­ment was viewed by many as an obtuse ref­er­ence to Franco and an inten­tional slight to Gar­zon. Gar­zon has also ques­tioned the impar­ti­al­ity of the judges, claim­ing their hear­ing con­cur­rent cases against him are pre­ju­di­cial to pro­ceed­ings. Many legal experts have also ques­tioned the valid­ity of the trial in the first place. Phil­ippe Sands, who teaches inter­na­tional law at Uni­ver­sity Col­lege in Lon­don, com­men­ted on the case “To sanc­tion a pos­sible breach of eth­ics or mis­con­duct is up to the pro­fes­sional organ­iz­a­tions,” Reed Brody, coun­sel for Human Rights Watch has been mon­it­or­ing the trial and remarked that the “accu­mu­la­tion of cases” against Gar­zon indic­ated “reprisal for his past actions against ves­ted interests.”

Even if one accepts the ver­dict on Gar­zon to be a fair and impar­tial judge­ment, the sen­tence also denied him the right to appeal, which is harder to jus­tify. He may, and indeed prob­ably will, appeal to the European Court of Human Rights but it will be years before his case is heard. It seems Spain’s status quo may relax; their greatest polit­ical nuis­ance has been silenced.