Baltasar Garzón v Spain Press Release
Security and the Rule of Law
• Spanish Judge Baltasar Garzón brings case to Europe challenging his own prosecution in Spain for authorising probe into Franco era crimes
• Case at the heart of independence of judges and the rule of law filed at European Court
On 24 March 2011 Judge Garzón filed a case to the European Court of Human Rights challenging the lawfulness of his prosecution in Spain for having opened an investigation into crimes committed during the Franco era, following a request by families and representatives of victims of the regime. Judge Garzón is represented by INTERIGHTS, an international human rights organisation specialising in litigation.
From human rights defender to criminal defendant
In 2006, in line with his role as one of six investigating judges at Spain’s National Court, Judge Garzón took preliminary investigative steps into the victim’s families’ allegations to ascertain whether a prosecution would be correct. 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 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’. The date for such a trial has still not been set.
Judge Garzón’s case represents a threat to the independence of judges and to their role in ensuring accountability for alleged widespread and systematic crimes. In his case Judge Garzón alleges that the criminal case against him in Spain violates 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 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.
A serious threat to judicial independence
Judge Garzón has been prosecuted under Spain’s ‘prevaricación’ (or ‘malfeasance’) law, which allows judges to be prosecuted for ‘unjust’ judgments. Normally the prosecution of judges under this law in Spain and the prosecution of judges generally in European States is highly exceptional. According to prior decisions of the Spanish courts, 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.
Helen Duffy, INTERIGHTS Litigation Director 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. 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.’
One high level international legal opinion submitted to the Court supports the view that Judge Garzón's decision was reasonable and in line with international law and the practice of other judges faced with similar cases. Another highlights the importance of judicial independence and the fact that the prosecution of a judge for his judicial decisions is at odds with this principle. 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 Judge Garzón 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.
Helen Duffy said ‘The case now filed with the European Court of Human Rights seeks to vindicate Judge Garzón’s right as a judge to be able to discharge his duties without fear of prosecution, but it also has broader implications. 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. Spain has in this instance failed to meet its obligation to protect a judge from spurious criminal processes and gravely jeopardised both judicial independence and the rights of victims to access justice in so doing.’
Notes to editors:
1. Spokespeople are available for interview. To arrange an interview please contact Sarah Harrington, Head of Communications (English and limited Spanish) at INTERIGHTS on 0044 20 7843 0472 or Helen Duffy, Litigation Director (English and Spanish) on 0031 624 283 283.
2. INTERIGHTS (www.interights.org) is a London based international NGO which uses international and comparative law to promote and protect human rights by litigating in cases which have to potential to set important precedents.
3. Further background on the case, inclufcding on attempts of families of victims attempts to secure justice in Spain for Franco era crimes, the investigation into Judge Baltasar Garzón and the Spanish law of ‘prevaricación’ under which Judge Garzón has been charged, is available at www.interights.org/garzon.