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PORTSIDE  November 2010, Week 1

PORTSIDE November 2010, Week 1


EspaÑa Invertebrada Will Put Judge Garzon in the Dock


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EspaÑa Invertebrada Will Put Judge Garzon in the Dock
By George Venturini*
Submitted to Portside by the author
November 7, 2010

In 1921 the 'philosophe' José Ortega y Gasset, published
one of his most famous works: 'España invertebrada'-
Invertebrate Spain. Ortega was a republican, but not a
democrat; he had written 'Delenda est monarchia', but
remained an elitist. He passionately loved his country,
but could not help describing it as "a cloud of dust
remaining after a great people have galloped down the
highway of history."And ninety years, in the life of a
people which sees things 'sub specie aeternitatis', are
a very short time.

Last May Mexico's representative on the United Nations
Human Rights Council -- the successor to the Commission on
Human Rights, during an examination of Spain's human
rights record, asked the Spanish representative to
investigate cases of enforced disappearances, to punish
perpetrators, and to provide redress to the victims.
Mexico has a good title for making such a request. After
Franco had suffocated in blood the Second Spanish
Republic, Mexico offered to receive the largest
contingent of refugees. Estimates are inconclusive, but
figures are placed between 20,000 and 40,000.

On 21 September the Spanish representative informed the
Council that his government was rejecting the call to
probe the disappearances of tens of thousands of persons
during the period from Franco's 'coup d'état' to the end
of the dictatorship in 1975. He said that Spanish judges
and courts are bound to act according to legal
principles which bind the judiciary. He repeated that
the courts were bound by the 1977 amnesty law on all
crimes committed during that dictatorship.

Judge Baltasar Garzón of the Spanish 'Audiencia
Nacional'-- the National Court has been suspended from
the bench on 14 May 2010 under the charge of 'delito de'
'prevaricación', just the day after Spain's admission to
the Council. The 'delito' consisted in the Judge having
knowingly overstepped his judicial competence by opening
a probe into the disappearances of 114,266 people-- part
of the crimes committed by Franco between 17 July 1936
and December 1951, the bloodiest period of Franco's

Judge Garzón initiated the investigation of those
disappearances late in 2008. He is now on leave, having
obtained a seven-month post as a consultant at the
International Criminal Court in The Hague.

Charge and suspension mark an astonishing turn of
events, and could signal the end of an illustrious
career by a courageous judge. Garzón is no ordinary
Chartusian monk of the law, a seat-warmer, or a timorous
soul, lucky to have found a kind of 'sine cura' in the
judiciary, provided of course that there be no boats
rocked in the process.

Garzón entered the judiciary at 23 and joined the
'Audiencia Nacional'at 32. Attached to the 'Juzgado
Central de Instrucción No. 5'-- the Fifth Chamber of the
Central Criminal Court, hisfunction was that of
investigating the cases which were assigned to him, of
gathering evidence and evaluating whether a case should
be brought to trial. He would not ordinarily try the
cases himself.


In time Judge Garzón played a key role in indicting
suspected Basque terrorists. 'Euskadi Ta
Askatasuna'-- Basque Homeland and Freedom, ETA had
murdered Carmen Tagle,one of Garzón's prosecuting
colleagues in 1989. Garzón took charge of many anti-ETA
operations and, more controversially, against ETA's
political wing and Basque newspapers. In May 1998 he
would disband 'Koordinora Arbetzale Sozialista-KAS', an
association of groups seeking independence with violent
means, on the grounds that it was for all purposes a
strategic arm of ETA. Two months later he closed down
the newspaper 'Egin', regarded as the mouthpiece for
ETA, a move which raised questions concerning freedom of
the press in Spain. In September 2000, in an operation
involving 300 policemen, he ordered the arrest of
members of 'Ekin', an organisation seen as the successor
of KAS. In October 2002 Garzón suspended the operations
of the 'Batasuna' Party for three years, again alleging
direct connections with ETA. In February 2003 he ordered
the closure of 'Egunkaria', a Basque newspaper.

In 1990 Judge Garzón had personally led police
operations against a Colombian-related drug syndicate.
The still young judge meant business.

In 1993 Garzón took leave of absence to run for a seat
in the Spanish Parliament as an independent in the list
of the 'Partido Socialista Obrero Español',the PSOE
which returned to govern in 2004. He won a seat, but he
might soon have gained the impression that the embattled
Socialist Party had taken him on board mainly for window
dressing. In 1994 he resigned and returned to his former

As investigating magistrate he was in charge of some of
Spain's high-profile cases, involving drug trafficking,
corruption in high places, and that of the 'Grupos
Antiterroristas de Liberación'-- Antiterrorist Liberation
Groups, GAL, the shady hit-squad set up by officials
within the very government he had left to fight a dirty
war against the Basque separatists. Several of Garzón's
former political allies ended up in gaol. Garzón charged
that Spain's interior ministry financed a campaign waged
by mercenaries and radical right-wingers -- the GAL.
Police officers were involved and Socialist ministers
helped cover it up. This led to trial and convictions of
several high positioned civil servants and of the
Interior Minister José Barrionuevo.

That made Garzón no friends from 'the Left' of politics.

His prominence as an international figure had begun with
his indictment of leaders of the former Argentine
military 'junta', on charges of genocide, terrorism and
torture during the 1976-1983 dictatorship. The National
Court had assigned him this duty.

By 1996 Garzón was ready to test the limits of
international human rights law by opening genocide
investigations into the Chilean and Argentine
dictatorships. He explored the reach of universal
jurisdiction by claiming that former Chilean dictator
General Augusto Pinochet could be tried in Spain for the
crimes he had committed -as he could not be tried in

The doctrine of universal jurisdiction empowers national
authorities to investigate and prosecute any person
suspected of crimes such as genocide, crimes against
humanity, war crimes, torture, extrajudicial executions
and enforced disappearances-which are crimes under
international law, regardless of where the crime was
committed or the nationality of the accused and the
victim, and to award reparations to victims and their
families. Garzón had become famous for employing such a
doctrine extensively.The application of the doctrine has
recently been circumscribed by the Spanish Parliament,
as will be seen.

In 1998 Garzón issued an international arrest warrant
when he learned that Pinochet was in London for a
medical check- up. British police arrested Pinochet in
October 1998. Pinochet was held under house arrest in
London, pending a decision on his extradition to Spain,
until March 2000, when the Home Secretary of the Blair
Government decided to release him on the ground that the
dictator was deemed unfit to stand trial.

Also in 1998 Garzón sought the extradition of 46 former
military and civilian officials from Argentina,
including former 'junta' members Jorge Rafael Videla and
Emilio Massera. But the extradition request was turned
down by then President Carlos Menem (1989-1999) - who
had pardoned the dictators, and by his successor
Fernando de la Rúa (1999-2001).

Pursuing Pinochet and other butchers and trans-border
criminals would win Garzón many points of merit from the
Left, but eternal enmity from the Right.

In 2001 Garzón extended his investigation into the anti-
competitive activity of corporations controlled by
Europe favourite joker, then as presently Prime Minister
Silvio Berlusconi, and attempted, unsuccessfully, to
have him extradited to Spain on the ground of tax fraud
and breach of anti-trust laws through a stake in Spanish
TV company 'Telecinco'.

In 2003 Garzón indicted Osama bin Laden over the 11
September 2001 attacks in the United States.

In 1999 and 2000 Garzón had filed charges against two
Argentine officers in connexion with the disappearance
of Spanish citizens during Argentina's 'dirty war' of
1976-1983. In 2005 Adolfo Scilingo was prosecuted in
Spain for terrorism, torture and attempted genocide-as
the aim of the military regime at the time was the
destruction of an entire group, its opponents. The
original sentence of 640 years imprisonment was
increased to 1,084 years in 2007. Miguel Cavallo was
charged with genocide, terrorism and torture. He was
eventually extradited to Argentina on 31 March 2008
where he is currently awaiting trial.

Then Garzón turned to more recent and continuing crimes.

In 2002 Garzón sought to interview former State
Secretary Henry Kissinger over what the United States
Government knew about 'Operation Condor'. This Operation
involved an agreement between six former Latin American
dictatorships -- Argentina, Bolivia, Brazil, Chile,
Paraguay and Uruguay -- to kidnap and assassinate,
leaving no trace, each regime's political opponents.
There being no dead bodies, the conspirators could deny
everything. The victims were henceforth referred to as
'los desaparecidos' -- the disappeared.The use of the
term 'enforced disappearances' in international treaties
derives from the 'dirty wars' in Latin America during
the period.

In March 2009 Garzón investigated the possibility of
bringing charges against six former officials of the
George Bush Junior's administration for offering
justifications for torture. The investigation -- it is
said -- had gone pretty perilously close to Vice-
President Cheney. On 29 April 2009 Garzón opened an
investigation into a 'systematic programme' of torture
at Guantánamo Bay, following accusations by four former
prisoners. Garzón had said that documents declassified
by the US administration and carried by US media "have
revealed what was previously a suspicion: the existence
of an authorised and systematic programme of torture and
mistreatment of persons deprived of their freedom" --
and that flouts international conventions.

This points to the possible existence of concerted
actions by the US administration for the execution of a
multitude of crimes of torture against persons deprived
of their freedom in Guantánamo and other prisons
including that of Bagram in Afghanistan.

'Judge Garzón's inquiry could have been the first formal
examination of criminal activity which could have led to
a number of US officials being charged with violations
of the Geneva Conventions and the Convention Against
Torture, both of which have been signed and ratified by
the United States.'

It seems that in September 2009 Garzón was preparing to
the next phase of his investigation.

In using the expression 'crime against humanity' to
describe some of the crimes perpetrated by American
'Intelligence' during the past fifty years, Judge
Garzón was taking a highly controversial step. He told
the 'BBC': "These days, crimes against humanity are a
burning issue, wherever you look in the world - be it
Afghanistan, Iraq or Darfur -- enough countries to make
you realise that this theme never ceases to make the
news, just as the fight against this scar, this
impunity, never ceases. And if we are referring to the
investigations being carried out in Spain in relation to
universal justice or eras gone by, then justice needs to
follow its course within the parameters of the law. That
is what we judges try to do." By 2005 Garzón could
confidently believe that the principle of universal
jurisdiction was firmly established in Spain. Or so he

In 2003 Garzón also indicted Osama bin Laden over the 11
September 2001 attacks in the United States.

Garzón's troubles stem from the fact that he is no
ordinary judge; he is more interested in imparting
justice than in blandly administering the law.

Some of Garzón fellow -- judges visibly displayed their
disapproval: judges are accustomed to 'discretion'. The
Spanish judiciary typically does not look well on
magistrates who draw attention to themselves.And that
may be an understatement. Some loathe him -- for them he
is but an abuser of the law to aggrandise himself.
Others, though timorously, envy him as a courageous and
imaginative defender of justice.

"Other judges are critical of him because they would
never dare do the things he has done." said Carlos
Jimenez Villarejo, formerly Spain's chief anti-
corruption prosecutor. José María Mena, a former public
prosecutor, sums it up thus: "If he were a tame, lazy
judge, he would not have these sorts of problems."

Judge Garzón was anything but lazy.He had to be
stopped.The Spanish Right would swear to finish Judge
Garzón after he opened the 'Gu"rtel'case, acorruption
case which exploded in 2009 and involved high figures of
the 'Partido' 'Popular'- Popular Party, the Right-wing
opposition and a linear successor of 'Franquismo',
especially its regional governments in Madrid and
Valencia. The Judge carefully examined contracts,
backhanders and possibly illegal party funding.

By then the Judge had reached the status of 'Super-
judge' or, as some of his colleagues begrudged, 'Star-
judge' -and for a while he was untouchable. Or so one
might have thought.

The pretext was offered by the complications following
Garzón's investigation into the Franco regime

On 16 October 2008, ina 68-page judgment, Garzón had
acknowledged jurisdiction and accepted a petition
demanding an investigation into the enforced
disappearances of Republicans under the Franco regime.
The petition had been submitted by 13 associations of
the families of victims, led by the 'Asociaciónpara la
Recuperación de la Memoria Histórica
-- the Association for the Recovery of Historical
Memory, ARMH.

The Judgehad ordered the opening of 19 mass graves,
including one believed to contain the remains of the
poet Federico García Lorca. Previously Garzón had sought
information from local churches, senior church
authorities, and city halls in an attempt to establish a
definitive list of victims between 17 July1936 and
December 1951. He put together a list of 114,266
names. Later the list was expanded to 133,708 persons.

That decision is regarded as the catalyst for the
Judge's present tribulations. But, as already indicated,
there might be other causes.

Garzón's apparent success had encouraged other judges:
in January 2009 Judge Fernando Andreu said he would
investigate seven current or former Israeli officials
over a 2002 air attack in Gaza; in May Judge Santiago
Pedraz announced that he would charge three US soldiers
with crimes against humanity for the April 2003 deaths
of a Spanish television cameraman and a Ukrainian
journalist. The men were killed when a US tank crew
shelled their Baghdad hotel.As at the end of September
2010 Judge Pedraz was still insisting on seeking the
arrest of the three GIs involved in the killing.

Calls to rein in meddlesome judges increased when they
announced probes involving Israel, the United States and

By mid-2009 the Spanish National Criminal Court had
received complaints of human rights abuses from as far
as Chile, Gaza, Guantánamo Bay, Guatemala, Rwanda and
Tibet. Some ten cases from five continents were being
investigated by Spanish judges, under the doctrine of
universal jurisdiction.

These investigations were huge sources of headache for
the Spanish Government, and both major Parties would
collude in seeking the limited the application of the
law, even the domestic reception of it.

One of the loudest voices against Garzón was coming from
Manuel Fraga Iribarne. Aged 88, this is one of the
relics of the Franco regime. He was for many, crucial
years Franco's Ambassador to the Court of St. James and
laterMinister of Information-read propaganda- and
survived to become the ferryman for many Francoists into
the 'Partido Popular'-- Popular Party that he founded and
which was later to be led by José María Aznar. Fraga
still sits as a Spanish senator. He broadly orated that
it was an error and absurd that a man could define
himself as competent in a matter where it is debatable
that anyone has competence given the amnesty law. And,
anyway,"Politically it is a very serious error to revive
the problems of the civil war."Of course, he would say

A Popular Party spokesperson in the Spanish Congress,
Soraya Sáenz de Santamaría, said that there were "many
defects in the process" and that Garzón wanted to reopen
matters which were resolved in the 'transición'-- the so-
called 'transition to democracy' which is said to have
taken place in 1977-1978 -- and are not strictly judicial.

The Prosecutors Office spoke also against the action of
Garzón, claiming that he was not competent to raise the
case, which was to be archived as falling under the 1977
amnesty law.

The fiction behind all this posturing is that a recent,
dark period of Spanish history should never be
investigated because of an unwritten, dubious political
deal, euphemistically known as the 'pacto del olvido' --
a pact of forgetting, which is assumed to have been
entered into by the parties emerging from the Francoist
era. This and the amnesty of 15 October 1977 should
prevent any examination of the crimes of the
dictatorship. That pact and that law are the foundation
of the 'transition to democracy'.It is not a position
which could be sustained in good faith.

Nevertheless, the Spanish Public Prosecutor challenged
the investigation, calling for the enforcement of the
1977 amnesty law and of Spain's statute of limitations.
He argued that, even if the 1977 law does not cover the
crimes, under the Spanish Criminal Code in force when
the civil war began, those offences should be considered
'ordinary crimes' and the statute of limitations had in
fact expired. Under Spanish law most crimes are deemed
to go unpunishable after a 20-year period.

The Public Prosecutor further contended that the 2007
Law for the Recovery of Historical Memory does not allow
judicial enquiries because it already provides
appropriate and sufficient measures for the victims.
This seems a bad reading of the Law, which says that
"[Its provisions are] compatible with taking the legal
action and having access to the ordinary and
extraordinary court proceedings established in the laws
or the international treaties or covenants ratified by

Garzón maintained that the illegal detention and
disappearance of victims are not subject to the 1977
amnesty law because they can be characterised as crimes
against humanity, and as such are subject to universal
jurisdiction. In this contention he was supported by
Amnesty International and the United Nations Human
Rights Commission. Garzón also dismissed any statute of
limitations, on the ground that Franco waged a
systematic campaign to eliminate opponents and hide
their bodies and, since the bodies are still missing,
the crimes are ongoing.

It seemed that there was no doubt as to the application
of domestic law: international law and obligations
assumed by the Spanish State cannot be ignored. The
Spanish Constitution of 1978 establishes that provisions
relating to fundamental rights shall be interpreted
according to the Universal Declaration of Human Rights,
international treaties, and conventions ratified by

In this regard, the international community -- and Spain
ardently wishes to be part of it -- has recognised the
applicability of crimes against humanity, the
impossibility of these being covered by amnesty laws or
other defences of liability, and 'the right to the
truth' which assists the victims' families.

The UN General Assembly in Resolutions 2583 of 1969 and
3074 of 1973 emphasised the importance of "rigorous
investigation" of crimes against humanity. It declared
that they are under investigation, "wherever and
whatever the date that have been committed "and that"
persons against whom there is evidence of guilt in the
commission of such crimes must be searched, arrested,
prosecuted and, if guilty, punished." In his report on
the establishment of the Special Court for Sierra Leone,
UN Secretary General Kofi Annanemphasised that "the
United Nations consistently maintained the position that
amnesty cannot be granted in respect of international
crimes such as genocide, crimes against humanity or
other serious violations of international humanitarian

Similarly, under international law there is explicit
recognition that enforced disappearance is a crime of
continuing, permanent nature while the whereabouts of a
disappeared person are not clarified. Therefore, it
would not only be about crimes which have not been
prescribed, but also about the Spanish State's duty to
investigate the facts and identify the culprits. This
principle has been established by the European Court of
Human Rights and accepted by Spain's ratification of the
International Convention for the Protection of All
Persons from Enforced Disappearances, which contains
similar principles.

Furthermore, 'the [victims' families'] right to the
truth' about their missing relatives was recognised in
Resolution 1463 of the Parliamentary Assembly of the
Council of Europe 3 October 2005, which also binds
Spain, and in the Body of Principles for the Protection
and Promotion of Human Rights through Action to Combat
Impunity issued by the Human Rights Commission of the UN
in 1998.

In this sense, criminal investigations of serioushuman
rights violations are considered key to the fulfilment
of three objectives: the establishment of the facts, the
establishment of individual responsibility, and the
reparation of victims. The Inter-American Court of Human
Rights also has stated that "the right to know the truth
of the relatives of victims of gross violations of human
rights is part of the right of access to justice," and
that the obligation to investigate is a relief. In
similar terms the Special Rapporteurs on the
Independence of Judges and Lawyers, have consistently
highlighted the "close relationship between the right to
justice and the right to truth, because the legal
mechanisms play a prominent role in ensuring to clarify
the facts."

The Socialist-Government-appointed Attorney General Cá
ndido Conde-Pumpido condemned the investigation. He
specifically asked Garzón to shelve his case against the
Americans and warned of the risks of turning the Spanish
justice system into a "plaything" for politically
motivated prosecutions. Instead of heeding that advice,
Garzón opened yet another investigation to seek
information on everyone who authorised and carried out
the alleged torture of four inmates at Guantánamo Bay.

The Attorney General's intervention followed outbursts
by the Popular Party and the Catholic Church criticising
Garzón for reopening "wounds from the past."

Garzón effectively rebutted every argument.

Expressing its solidarity with the Judge's position,
Human Rights Watch said that the sanctions against
Garzón are not only a blow to the families of victims of
serious crimes in Spain, but also risk undermining the
European Union's collective credibility and
effectiveness in seeking justice for current human
rights crimes -- be they in Darfur, the Democratic Republic
of Congo, or Sri Lanka.

Under international law, governments have an obligation
to ensure that victims of human rights abuses have equal
and effective access to justice, as well as an effective
remedy -- including justice, truth, and adequate
reparations -- after they suffer a violation. The
International Covenant on Civil and Political Rights
(ICCPR), that Spain ratified in 1977 -- before adopting
the amnesty law- specifically states that governments
have an obligation "to ensure that any person whose
rights or freedoms ... are violated shall have an
effective remedy."

As noted, in 2008 the UN Human Rights Committee, in
charge of monitoring compliance with the ICCPR, called
on Spain to repeal the 1977 amnesty law and to ensure
that domestic courts do not apply limitation periods to
crimes against humanity. In 2009 the Committee against
Torture also recommended that Spain "ensure that acts of
torture, which also include enforced disappearances, are
not offences subject to amnesty" and asked Spain to
"continue to step up its efforts to help the families of
victims to find out what happened to the missing
persons, to identify them, and to have their remains
exhumed, if possible."

In 2009 the European Court of Human Rights held that, as
a general principle, an amnesty law is incompatible with
states' duty to investigate acts of torture or

On 7 November 2008 the National Court accepted the
Prosecutor's Office challenge to the investigation. It
ruled that Garzón had no authority to launch an
investigation because the human rights abuse laws under
which he was charging the Franco regime did not exist at
the time the acts were committed. It said that because
the National Court itself only came into existence in
1977, following the end of the dictatorship, it had no
remit to deal with charges retrospectively and that a
1977 law provided an amnesty covering "all acts of
intentional policy, whatever their outcome, defined as
crimes or misdemeanours committed [before the generals'
uprising on 17 July 1936 and up to] to 15 December

The Court declared that regional courts were responsible
for carrying out further investigations consequent to
the excavation of the mass graves, effectively ending
any nationally co-ordinated investigation. Some regional
courts in time have referred their cases to the
Constitutional Court, saying they do not feel qualified
to assess them. The National Court ruling means that
many investigations will be delayed for years or
abandoned completely.

On 13 November 2008 Amnesty International called on the
Spanish Government to comply with its international
obligations regarding past crimes, because blocking such
war crimes investigations "could establish impunity
mechanisms that are not in compliance with the rules
applicable to crimes under international law."
"Investigations of crimes against humanity committed in
other countries have been promoted on many occasions in
Spain so how can the Prosecutor's Office question or
oppose complying with the obligation to investigate
serious crimes committed during the Civil War and
Franco's regime?" asked Esteban Beltrán, Director of
Amnesty International Spain. "Spain cannot appear before
the international community as a State which infringes
its international obligations."

Under international law, a government's refusal to
acknowledge the detention of an individual or their
whereabouts is an enforced disappearance. In 1992 the UN
General Assembly passed the UN Declaration on the
Protection of All Persons from Enforced Disappearances.
It provides that an enforced disappearance has occurred
when government officials or agents arrest, detain or
abduct against their will an individual "followed by a
refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the
deprivation of their liberty, which places such persons
outside the protection of the law." According to the
Declaration, "No circumstances whatsoever, whether a
threat of war, a state of war, internal political
instability or any other public emergency, may be
invoked to justify enforced disappearances."

In 2006 the prohibition against enforced disappearances
was strengthened by the adoption of the International
Convention for the Protection of All Persons from
Enforced Disappearance (Convention against Enforced
Disappearance). Under Article 5 of the Convention, "The
widespread or systematic practice of enforced
disappearance constitutes a crime against humanity as
defined in applicable international law and shall
attract the consequences provided for under such
applicable international law." The Convention will not
enter into force until it has been ratified by 20
countries. Thus far, 86 countries have signed the
Convention and 19, including Spain, have ratified it. In
addition, Spain is a Party to the 2002 Rome Statute of
the International Criminal Court. Under Article 7(1)(i)
of the Statute, which is indicative of customary
international law, the 'enforced disappearance of
persons' constitutes a crime against humanity "when
committed as part of a widespread or systematic attack
directed against any civilian population."

Those criticising Garzón's investigation have claimed
that international human rights legislation cannot be
invoked as Spain had not ratified it at the time, and in
addition, its provisions are not reflective of the state
of customary international law during the relevant
period. In reply Garzón appealed to the Nuremberg war
crimes trials as precedent. The Nuremberg trials began
in 1945, 6 years after the end of the Spanish civil war.
German officials who had acted under the Nazi Regime -a
regime which had generously supported Franco - were
prosecuted for initiating a war of aggression and for
the commission of the crimes which resulted: crimes
against peace, war crimes, crimes against humanity and
genocide. Some people have criticised the Nuremberg
trials for applying 'ex post facto' law --created after
the fact, by violating the principle 'nullum crimen sine
lege'-no crime without a law. However Garzón**maintains
that they are a valid precedent: if international law
could be used at Nuremberg, the same rules could be
applied to events which took place only a few years
prior -- he argues.

In a further show of its weakness the Spanish
Government- under pressure from the US administration,
Israel and China and the Spanish Right, last year
introduced legislation to narrow the scope of universal
jurisdictionto cases in which the victims of a crime
include Spaniards or the perpetrators of which were in
Spain.The bill was approved almost unanimously by
Parliament. It was said to be aimed at "ending the
practice of letting its judges seek war - crime
indictments against officials from any foreign country,
including the United States."

The view of the Attorney General and the decision of the
National Court emboldened the Right.

As a result of a prosecution brought by far-Right
organisations for investigating Franco's crimes, judges
of the National Court accepted a complaint by a shadowy
far-Right pressure group called 'Manos Limpias ' --
Clean Hands, and by another called 'Libertad e
Identidad' - Liberty and Identity on the ground that
Garzón exceeded his legal powers -- 'prevaricación'-- in
2008 by ignoring the amnesty granted to Franco and his
henchmen in 1977 during the 'transition'.

Thereafter, a similar complaint from the 'Falange
Española' was admitted by Spain's Supreme Court.

The Supreme Court appointed Judge Luciano Varela Castro
to examine the case. "It is like the end of a farce."
said Francisco Espinosa, a historian who served on an
advisory committee for the investigation. "The same
people who participated actively in the failed 'coup' of
23 February 1981 and in the repression under
investigation are precisely the ones bringing the
complaint, and the Supreme Court, instead of shelving
it, gives the green light."

On 3 February 2010 Judge Varela rejected Judge Garzón's
petition to dismiss the complaints, claiming that
conducting the investigation despite the 1977 amnesty
law could amount to a crime under Article 446.3 of the
Spanish Criminal Code. "Aware of his lack of
jurisdiction and that the crimes reported lacked
criminal relevance when the proceedings began, [Garzón]
built a contrived argument to justify his control of the
proceedings he initiated." wrote Varela in his ruling.

On 25 March the Appeal Chamber of the Supreme Court
confirmed the decision to refuse the dismissal of the
case. In its decision the Court asserted that the charge
"is not arbitrary, illogical or absurd."

On 7 April 2010 Judge Garzón was summoned to appear in

Emilio Silva, the president of the Association for the
Recovery of Historical Memory -- ARMH, harshly criticised
the Supreme Court's announcement that it would try
Garzón. Noting that Prime Minister José Luis Rodríguez
Zapatero had said that Franco "has already been judged
by history," he asked: "What would people in Argentina,
where members of the dictatorship have been put on
trial, think of that statement?"

"For victims of Franco," a spokesman for the ARMH
remarked, "it is a humiliation to see that the judge who
tried to find thousands of the disappeared in mass
graves could be convicted for it."

"We are truly scandalised." Giulia Tamayo, head of
research for Amnesty International in Spain, said. "The
UN Commission on Human Rights has repeatedly warned the
Spanish government that amnesty laws were not applicable
to crimes against humanity, but the Spanish authorities
continue to hinder the victims' quest for justice and
reparation. Now the only judge who wanted to abide by
international law is being made to pay for it. No other
country has gone as far as to prosecute a judge that
tried to investigate such crimes." she added.

Garzón's defence had lined up a cast of international
legal experts, including Carla del Ponte, former chief
prosecutor at the International Criminal Court, and
Eugenio Raúl Zaffaronni, the Argentine judge who in 2005
voided the country's amnesty law. But the Supreme Court
ruled that it would not admit their testimony. The
defence would be appealing against the decision.

On 10 April 2010 Judge Garzón appealed against the
indictment. He alleged that the indictment issued by
Judge Varela was politically motivated, compromised
judicial independence and sought to impose a specific
interpretation of the 1977 amnesty law. He also
complained of the short time he had been given to appeal
the indictment order, which resulted from Varela's
summary motion to shorten the length of the trial.

On the same day the ARMH announced that it intended to
file a criminal complaint against Judge Varela for
violating international law in the application of the
amnesty law. The Association expressed its "deep
indignation" over a trial which had been initiated by
"Fascist" Franco's "ideological representatives." The
Association also sued Supreme Court Judge Juan Saavedra,
president of the chamber which had rejected the appeal
lodged by Garzon. Members of the Association said that,
if need be, they would pursue a suit against Varela in
courts in Argentina and Chile under universal

The expected reaction soon came: on 14 April Argentine
lawyer Carlos Slepoy, who lives and practices in
Madrid,and human rights groups filed genocide charges in
a federal court in Argentina for the 1936 murders by
pro-Franco forces of two Spanish mayors, Elías García
Holgado and Severino Rivas, invoking the principle of
universal justice.

Among other legal instruments, Slepoy appealed to the UN
Convention against Torture, approved in 1984 and in
force since 1987, which has been ratified by Argentina,
Spain and more than a hundred other countries. The
Convention established that, when there is reliable
information about cases of torture occurring in one of
the states party, the accused persons can be tried in a
court in a different state party.

"In Spain, the Franco-era crimes, which were committed
on a massive scale in the first few months after the
'coup', were not only never prosecuted, but there is
still no will to do so." said one of the Argentine
lawyers for the plaintiffs, Beinusz Szmukler, president
of the American Association of Jurists Consultative
Council. Szmukler said he was confident that the lawsuit
filed in the federal court of Judge María Servini would
succeed. "The principle of universal justice is in our
constitution, and allows the courts to try crimes
against humanity that were committed abroad." he said.
"Furthermore, the Inter-American Commission on Human
Rights of the OAS [Organisation of American States]
recommended that states in the region apply that

The lawsuit was supported by nearly a dozen
organisations, including the ARMH, the Argentine
Federation of Galician Associations, the Mothers of the
Plaza de Mayo human rights group and the 'Central de
Trabajadores de Argentina'-a trade union federation.

The International Commission of Jurists called for the
charges against Garzón to be dismissed, saying
international law prohibits the prosecution of judges
"for controversial or even unjust or incorrect
decisions." The Commission said that the attempt to
interfere in the judicial process was of "particular
concern" since it involved an investigation into crimes
against humanity, that Spain had a duty to investigate
and prosecute. Amnesties for such crimes are invalidated
by European human rights laws, it added.

Several prestigious international lawyers joined Spanish
left-wing intellectuals, lawyers, politicians and human
rights activists in their defence of Garzón.

The case against Garzón "gives the impression that Spain
is trying to hide the existence of crimes against
humanity," Argentine Supreme Court Judge Eugenio Raúl
Zaffaroni said, while the late Portuguese Nobel
literature laureate José Saramago praised Garzón's
"courage and honesty."

To everyone's surprise, a member of the Spanish Supreme
Court, Judge Luciano Varela, who had been assigned by
the Court to look at the complaints against Garzón, saw
merit in their request.The irony is that Judge Varela is
considered of 'left-wing' sympathies; but he belongs to
a generation which believes the post-Franco pledge not
to delve into the past must be adhered to."This
artificially built case [against Franco] shows a basic
lack of knowledge of the principles of law and of
democratically approved laws such as the amnesty law of
1977." he is reported to have said. Long ago Judge Varela
made clear his intense dislike for judges like Garzón.
"The one thing I find totally repugnant is a judge who
likes to play at policeman." he was quoted as saying.

According to Varela, the amnesty law gave permanent
immunity to all who had committed violations of human
rights under the Franco regime. This judge's orientation
increased the likelihood of Garzon's being taken before
the Supreme Court -- a five-member court presided over
by a judge who swore loyalty to the Franco regime.

Spaniards with a long memory are not amazed by the
protagonists who have suddenly reappeared into
mainstream debate.

Most of the judges hearing the charges against Garzón
are old enough to have sworn loyalty to Franco. Many
neo-Francoist judges were appointed during the Aznar
period in government.

"The judiciary in Spain has changed since the Pinochet
case." explained'Juan E. Garcés, who was the leading
lawyer in thecase against Pinochet." A lot of
rightwing judges were appointed to the Supreme Court by
the Partido Popular''government of José María Aznar in
the eight years up to 2004." They include some elderly
judges who once swore loyalty to Franco's regime, he

The 'Partido Popular' strongly supports the campaign
against Garzón. The Party was vocal in its criticism of
the Franco case. "It is outlandish," said Manuel Fraga
Iribarne, the Party's founding president. Party
officials had also lashed out at Garzón for his
investigation into the Party's corruption scandal known
as the 'Gürtel' case.

Popular anger spread far beyond Spain, and Party leader
Mariano Rajoy called the wave of pro-Garzón
demonstrations "anti-democratic".

There is one further particular of judicial chicanery.

Doubts about the Supreme Court's impartiality reached a
new level on 21 April, when Judge Varela, noting that the
plaintiffs' briefs against Garzón included confusion of
fact and law and unwarranted references to Garzón's
personal life, did not dismiss the charges;instead he
returned the briefs to the plaintiffs with suggestions
on how to improve their case. Varela's was a stunning
departure from judicial discretion -- if not
propriety.Some legal experts suspected that the Supreme
Court, perhaps to avoid further international
embarrassment, might have been manoeuvring to bar the
'Falange Española' from the trial altogether.The re-born
'Falange Española' is the inheritor of the Party which
had provided eager gunmen for Franco's death squads.
Ithad joined the complaint but was later barred from the
next stage of the case.

On 22 April 2010, in a 14-page judgment, Varela
concluded that Garzón had manipulated the course of
justice by knowingly violating a 1977 amnesty law which
shields all sides, including members of the Franco
dictatorship, from legal prosecution. In addition, in
Varela's view, the 2007 Law for the Recovery of
Historical Memory explicitly conferred on the lower
courts -and not on Garzón's court- jurisdiction over
locating and excavating the mass graves which still dot
the Spanish countryside.

Varela charged that Garzón, in order to overcome these
restrictions, tried to create law rather than administer

It is interesting to read in the indictment the way in
which Judge Varela justified the need to take Judge
Garzón to court. "[Garzón's] actions seem to imply that
there has been a pact of silence about the actions taken
by the previous regime, exposing all the political and
judicial systems to the criticism of having been
insensitive to the defence of human rights and defence
of the forgotten." Judge Varela intended to prevent
Judge Garzón from continuing his trial of the Francoist
regime because it would reveal that there has been a
pact of silence and that neither the State nor the
courts have put into practice the Law for the Recovery
of Historical Memory and have done nothing in defence of
the forgotten. In that way, Varela intended to save the
honour of the Spanish State and the courts and to avoid
any further embarrassment to the very powerful forces
responsible for that silence and for that democratic

Both Amnesty International and Human Rights Watch have
called on the Supreme Court to throw out the case.

Human Rights Watch said that if the judge were removed
from office, it would damage the Human Rights record of
the European Union. The organisation confirmed its
opinion in a meeting with the President of the European
Council, Herman Van Rompuy.

"Garzón sought justice for victims of human rights
abuses abroad and now he is being punished for trying to
do the same at home. The decision leaves Spain and
Europe open to the charge of double standards." said
Lotte Leicht, EU advocacy director at Human Rights

"Instead of a criminal complaint against Judge Baltasar
Garzón for investigating crimes under international law
committed in the past, Spain should, irrespective of the
date of their commission, bring perpetrators to justice.
... They should take all measures to disclose the truth
about the thousands of enforced disappearances,
extrajudicial executions and torture committed during
the Francisco Franco era and provide full reparations to
the victims and their families. ...Any attempt to
prosecute a judge for an independent and impartial
exercise of his jurisdiction or to challenge the
legality of an amnesty law is not in accordance with
Spain's obligations under international law and should
be reversed." said Amnesty's senior director Widney

Amnesty International strongly condemned the
"outrageous" charges brought against Garzón. Senior
director of Amnesty International Widney Brown said:
"This is outrageous. As a matter of principle, Amnesty
International does not take a position on the merits of
the specific charges made against a person under
investigation by a court, but in this case... the
organisation cannot remain silent.Whether the
investigation by Judge Garzón violated Spanish national
law or not is simply irrelevant as the law itself
violates international law. Investigating past human
rights violations and setting aside an amnesty law for
crimes under international law, such as enforced
disappearance, extrajudicial executions and torture,
should never be treated as a criminal act."

The UN Human Rights Committee and the Committee against
Torture recently warned that Spain should repeal the
amnesty law. They reiterated to the Spanish authorities
that enforced disappearances and torture are not subject
to amnesty and that statutes of limitations do not apply
to such crimes.

Widney Brown, added: "The 1977 Amnesty Law barring
prosecutions of crimes under international law violates
Spain's obligations under international law and it is a
duty of the judiciary, sooner or later, to state that
such a piece of legislation is simply null and void."

Amnesty International urged Spanish authorities instead
to concentrate on finding justice for the relatives of
the estimated 114,266 people who 'disappeared' at the
hands of the Franco government.

In a public letter to the Spanish Attorney General, the
American Bar Association suggested that "amnesties for
crimes against humanity are inconsistent with a State's
obligations to protect human rights, including the right
of access to justice." and supported Garzón's case
against the Francoists. Indeed, even if Garzón did
exceed his jurisdiction in opening an investigation on
behalf of Franco's victims, the Supreme Court's decision
to prosecute him rather than simply strike down his
decisions is unsettling and reveals the parlous
condition in Spain's judicial system.

The New York Times published a fiercely supportive
editorial, although some on the American Right rub their
hands at the threat to universal justice -- which they
fear may be used against US officials accused of torture
in Iraq.

Garzón appealed the charges, alleging that the
indictment issued by Judge Varela was politically
motivated, compromised judicial independence, and sought
to impose a specific interpretation of the 1977 amnesty

On 28 April Varela announced that he was considering a
request for his recusal from the case.

Just two weeks before the recent United Nations Human
Rights Council's meeting the Criminal Chamber of the
Spanish Supreme Court in Madrid unanimously upheld the
lower court's order that Judge Baltasar Garzón should
stand trial. Garzón had been charged on 7 April for his
attempt to investigate the war crimes committed between
17 July 1936 and December 1951, the bloodiest period of
Franco's dictatorship -- a charge that Garzón has
persistently claimed as politically motivated. Judge
Garzón will face trial sometime this year before a bench
of five judges: Juan Saavedra, president, Juan Ramón
Berdugo, Joaquín Jiménez, Francisco Monterde and Adolfo
Prego. The judges had found that the witnesses called by
Garzón proffered only personal opinions; they also
determined that exhumation of 19 mass graves that Garzón
authorised on 1 September 2008 was inappropriate. The
ruling came just two days after an Argentine court
reopened the case against the Franco regime for crimes
against humanity.

The politicisation of the Spanish judiciary would soon
be in full display. The Supreme Court president, Judge
Juan Saavedra, is on record as saying he is totally
against judges like Garzón. "Star judges are
opportunists." he said. Saavedra is one of the five
judges who will now decide Garzón's future. Another
Judge, Adolfo Prego, is the patron of the Right-wing
Defence of the Spanish Nation pressure group.

On 14 May the CGPJ voted unanimously -- 18-0 with three
abstentions -- to suspend Garzón. The CGPJ was bound so
to decide once Garzón's final appeal to avoid the trial
was rejected two days before. The panel which suspended
Garzón was made up of political appointees and deeply
divided along Party lines.

No trial date was set.

If convicted, Judge Garzón could face a suspension of up
to 20 years.

From the beginning, the case against Garzón has been
motivated by political and personal vendettas, and the
timing of the relevant decisions is no exception. Such
haste in a case which had been moving normally through
the system for some months has the whiff of malice; the
decision to suspend was made even though --it seems --
the Attorney General's Office still had questions about
the case.

Even though the decision was widely expected, many in
Spain were treating it as marking the end of Garzón's
career, regardless of what the verdict in the trial
might be. Garzon's lawyer, Gonzalo Martinez-Fresneda,
said as much.

Two days before the decision, Garzón had asked for a
seven-month leave to work as a consultant to the
International Criminal Court in The Hague, presumably as
a face-saving measure to avoid the humiliation of a
suspension. His request was supposed to be discussed on
17 May, but the CGPJ, in response to seven conservatives
who comprise a powerful group of its members, called a
special meeting of the session for 14 May. A
subcommittee of CGPJ met on the evening of the decision-
to-suspend to see if Garzón could be allowed to take up
that position without resigning from his post in Madrid,
but it postponed a decision.

Garzón did not speak publicly after the suspension. But
the day before, at a Latin American human rights
conference, the clearly crestfallen Judge said: "One
does not face complex decisions with optimism but rather
with calm, with that calm that comes with knowing I am
innocent. ... As a man who respects the law, all that is
left for me is to take on tomorrow's decision by
exercising my defence."

Thousands gathered in cities across Spain in support of
the Judge, chanting slogans and displaying flags of the
pre-war Republican Government ousted by Franco.
Unfortunately,powerful media branded holding such public
meetings and demonstrations as "attacks on democracy."

Human Rights Watch condemned the CGPJ's decision.

"This is a sad day for the cause of human rights. Garzón
was instrumental in delivering justice for victims of
atrocities abroad and now he is being punished for
trying to do the same at home." Reed Brody, the rights
group's legal counsel, said in a statement."Garzón's
decision not to apply Spain's amnesty, for which he is
being prosecuted, is supported by international law,
which imposes on states a duty to investigate the worst
international crimes, including crimes against
humanity.Thanks to Garzón, Spain became a symbol of
justice for atrocity victims around the world. Now
justice itself has become the victim in Spain."

Lotte Leicht, also from Human Rights Watch, said that
"Garzón has made efforts to ensure justice for victims
of human rights violations outside Spain, and now he is
being punished for trying to do the same in his own

There were also some courageous voices within the
judiciary: for instance, Dolores Delgado, a prosecutor
at the 'Audiencia Nacional' declared unequivocally that
the trial of Garzón is aimed at squelching the
application of universal jurisdiction in Spain.

Whether the charge against Garzón will hold up remains
to be seen.

Anger has spread far beyond Spain.

As noted, Spain's so-called historical memory groups
have already imitated Garzón's prosecution of Pinochet
by lodging a case asking for Francoist atrocities to be
investigated by an Argentine court, on the basis that
international law permits other countries to prosecute
crimes against humanity if Spain refuses so to do.
Carlos Slepoy, a Madrid-based Argentine lawyer, went to
Buenos Aires to present the petition. "There are still
people alive who were involved in the extreme repression
of the first decade of Francoism, but crimes were still
being committed up to 1977." he explained. "If we manage
to find people who were involved, we will demand their
detention, extradition and trial --whatever country they
are now in."

The Argentine court may accept and deal with the case,
in full application of the doctrine of universal
jurisdiction that Spain has recently restricted. Much
will depend on the Spanish Government's reply to Judge
María Servini's request in date 14 October 2010, that
the Madrid Government "inform [her court] whether in
[Spain] there is an investigation into the existence of
a systematic, widespread and deliberate plan designed to
terrorise the Spaniards who supported representative
government by their physical elimination, and of a plan
of legalised disappearance of children [of Republican
families] whose identities were changed."

Much also will depend on whether Spain's Supreme Court
decides to condemn Judge Garzón. "What is on trial here
is a lot more than Garzón's future," said Juan E.
Garcés. "This is a battle for the history and the soul
of Spain itself."

If at the trial Garzón will be found guilty, his
judicial career will come to a sudden end and the world
will lose one of its champions of international criminal
law and universal jurisdiction.Thanks to Garzón Spain
became a symbol of justice for atrocity victims around
the world. Now justice itself may be the victim in

In the words of Emilio Silva, the president of the
Association for the Recovery of Historical Memory: "The
irony is that Garzón is the only person now being
pursued through the courts because of 'Franquismo'

In 1939, when Madrid fell to Franco, Ortega y Gasset
took off for Argentina, and exile. But he was no Pau
Casals, the famous Catalan cellist refugee -who swore
never to return-- and never did.He died in exile two
years short of the death of the 'gentle general', as the
butcher of the Second Republic was known, and reverently
referred to, throughout most of the Anglophone world.

Ortega y Gasset had written that "'el encanallamento',
the debasement, of the average [Spaniard] makes Spain a
nation which has lived for centuries with a dirty

In 1948 Ortega accepted an invitation from the regime,
which wanted to appear 'more democratic' -- and
returned. There was to be no reprisal. But the price was
that he should keep his mouth shut.Ortega paid the price
for seven long years, his lips sealed in an unbreakable

If Judge Garzón will be found guilty, Spain will have
another reason to live with a dirty conscience.

What is certain is that, just like Pau Casals, Judge
Garzón will not compromise. The Spanish ruling class
should prepare itself for a man who will not be


*Dr. Evan Jones of Sydney, Australia read a first
version and made very much appreciated comments.

[Dr. Venturino Giorgio Venturini, formerly an 'avvocato'
at the Court of Appeal of Bologna, taught, administered,
and advised on, law in four continents, 'retiring' in
1993 from Monash University. Author of eight books and
about 100 articles and essays for learned periodicals
and conferences, his latest work THE LAST GREAT CAUSE --
'Volunteers from Australia' 'and Emilia-Romagna in
defence of the Spanish Republic, 1936-1939' is in course
of publication by the Search Foundation in Sydney. Since
his 'retirement' Dr. Venturini has been Senior Associate
in the School of Political and Social Inquiry at Monash;
he is also an Adjunct Professor at the Institute for
Social Research at Swinburne University, Melbourne.
[log in to unmask]]


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December 2013, Week 5
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January 2013, Week 1
December 2012, Week 5
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April 2012, Week 5
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March 2012, Week 5
March 2012, Week 4
March 2012, Week 3
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February 2012, Week 1
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January 2012, Week 4
January 2012, Week 3
January 2012, Week 2
January 2012, Week 1
December 2011, Week 5
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December 2010, Week 5
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August 2010, Week 4
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August 2010, Week 1
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July 2010, Week 1



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