It seems that some people do their best to keep the impunity of crime during the Spanish Civil War and the Franco’s dictatorship: the 1977 amnesty law is outdated as it comes into contradiction with the regulatory offence of ‘crimes against humanity’, which is not prescribed under any circumstances – this is one of the principles of universal justice, one of the pillars of universal jurisdiction and a basic principle of comparative law.
The celebrated Spanish magistrate Baltasar Garzon will be judged for trying to dig into the dirty past of Franco’s regime. On receiving complaints by far right-wing organizations, the Spanish Supreme Court has decided to sit the magistrate in the dock for “misfeasance”.
“Aware of his lack of jurisdiction and that the crimes reported lacked penal relevance when the proceedings began, (Garzon) built a contrived argument to justify his control of the proceedings he initiated,” Luciano Varela – an investigating magistrate on the Supreme Court – said in the ruling.
The decision should result in a quick-fix suspension of Baltasar Garzon from the Audiencia Nacional, the Spanish high criminal court in Madrid that centralizes the issues on terrorism, crimes against humanity and organized crime.
Baltasar Garzon, 54, is accused of having set up a “legal subterfuge” to open an investigation regarding the missing persons during the Spanish Civil War (1936-1939) and general Franco’s regime (1939-1975), ignoring a general amnesty law passed in 1977 by the Spanish Parliament, two years after the death of dictator Francisco Franco. Facing the hard opposition from prosecutor Luciano Varela, Garzon had to abandon the investigation in late 2008.
Considering he had “deliberately ignored” the amnesty law that prevented him to take jurisdiction for the investigation, Luciano Varela refused in early February to close a complaint against Judge Garzon. Garzon’s counsel Gonzalo Martínez-Fresneda, when questioned by the online edition of El Pais, said he would appeal judge Varela’s decision.
A sad day for Justice
“It’s a sad day for justice,” assured Emilio Silva in the Spanish broadcast corporation. He is the spokesman for the Association for the Recovery of Historical Memory, the leading association of families of victims of Franco. “Relatives from 113 000 missing people cannot find a place for justice to be done anywhere in this country,” said Silva. “If this trial takes place, this will be the first known case of a judge who tries to get the truth, justice and reparation for more than 100 000 people disappeared and finds himself pursued,” declared Esteban Beltran the Spain Director for Amnesty International.
More than two hundred organizations defending human rights and jurists all around the world, including former prosecutor of the International Criminal Tribunal for the Former Yugoslavia as for Rwanda, Mrs. Carla del Ponte, recently signed a petition supporting Judge Garzon. They remind that the UN Committee on Human Rights requested Spain in 2008 to revoke the post-Franco amnesty law and “to guarantee the imprescriptibility of crimes against humanity”. “Enforced disappearances” which focused Garzon’s investigation are crimes “that cannot be prescribed or amnestied,” they stated.
Enforced disappearances are among the gravest crimes which cannot be prescribed nor be granted with amnesty without attempting against international law, which is part of the Spanish judicial system.
The crime of illegal detention, without giving information of the detainee’s location, or the crime of enforced disappearances, are crimes of continuous nature, that are ongoing until it is known what happened to the victims; that is why these crimes cannot be object of criminal prescription. When these disappearances have been committed in a systematic, massive and generalized manner, as it occurred during the Civil War and Franco’s dictatorship, they are considered as crimes against humanity and hence cannot be subject of amnesty nor pardon. For this type of crimes, the principle of non-retroactivity in criminal law cannot apply since the prohibition of such crimes already existed under international customary law (jus cogens) at the time of the facts and, the principle of legality, is formed by national provisions and international human rights law.
An atypical magistrate
As pioneer and advocate of “universal justice”, Judge Garzon had gained worldwide recognition by securing the arrest of former Chilean dictator Augusto Pinochet in London in 1998. This atypical magistrate has cornered the armed Basque separatist organization ETA for more than twenty years.
Accused by Spanish conservatives of harboring grudges and seeking the media limelight with his pursuit of high-profile cases, but also as a result of his investigations, Garzon have brought down wrath, both from the very conservative Spanish Judiciary and from the much corrupted Spanish political class (and not only conservatives). If we add the fact that Spanish judiciary is the only non-democratic power in the country with unchanged structures from the dictatorship, now handled by the extreme right… an explosive cocktail is served.
For your information, Judge Garzon is targeted as well by complaints in two other cases: one for the fees he received for lectures in the United States in 2005-2006, the other for his supposed “partiality” in the investigation he has started on the Gürtel corruption scandal that currently splashes the Spanish right .
The Spanish parliament put an end to universal jurisdiction last October 2009 when it approved a bill that narrows the role of the country’s judges in prosecuting crimes committed in other countries.
Sources: Harvard Law Review, Human Rights Quarterly, FIDH, NY Times, Le Monde, El País
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