Charges against Spanish investigative judge must be dropped
Amnesty International today strongly condemned the ‘outrageous’ charges brought against a leading investigative judge who is due to appear before the Supreme Court in May on charges of abusing his power.
Baltasar Garzón will appear before the country’s Supreme Court next month accused of breaking a 1977 Amnesty Law by launching Spain’s first-ever investigation into crimes committed during the Franco era.
“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 – where investigative Judge Baltasar Garzón is being brought to justice for investigating past human rights violations - the organization cannot remain silent,” said Widney Brown, Senior Director of Amnesty International.
“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.”
Judge Garzón, a high court judge who investigated abuses committed under Latin American military governments and abuses committed at the US detention centre at Guantanamo Bay, announced in October 2008 that he would investigate the forced disappearance of more than 114,000 people between 1936 and 1951.
Under Spain’s 1977 Amnesty Law, members of the Francisco Franco government cannot be prosecuted for crimes committed during the Spanish civil war or the subsequent Franco government which ruled the country between 1939 and1975.
However, Judge Garzón, who now faces being disbarred for 20 years, argued that amnesty laws do not apply to crimes against humanity under international law, a position which Amnesty International supports.
The UN Human Rights Committee and the Committee against Torture recently warned that Spain should repeal the amnesty law. They reiterated to Spanish authorities that enforced disappearances and torture are not subject to amnesty and that statutes of limitations do not apply to such crimes.
“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,” said Widney Brown.
Amnesty International urges 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.
“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,” concluded Widney Brown.
On 16 October 2008, the investigative Judge Baltasar Garzón of the National Court (Audiencia Nacional) issued a key decision in which he accepted jurisdiction and initiated a criminal investigation into the claims brought by relatives of victims concerning alleged crimes of enforced disappearances amounting to crimes against humanity committed during the Spanish Civil War (1936-1939) and the Francisco Franco government (1939-1975).
Judge Baltazar Garzón established that, without prejudice to the relevant outcome of the investigation, a total of 114, 266 persons were identified as victims of enforced disappearance between 17 July 1936 and December 1951.
Following the decision to open an investigation, Manos Limpias, a political organization, filed a criminal complaint against Judge Baltasar Garzón for abuse of powers (prevaricación). Thereafter, two similar complaints from the organizations Identidad y Libertad and Falange Española were admitted by the Supreme Court (Tribunal Supremo).
On 3 February 2010 the investigative Judge of the Supreme Court, Luciano Varela Castro, rejected Judge Baltasar Garzón’s petition to dismiss, claiming that conducting the investigation despite the 1977 Amnesty Law could amount to a crime under Article 446.3 of the Spanish Criminal Code.
On 25 March 2010, the Appeal Chamber of the Supreme Court (Tribunal Supremo) confirmed the decision to reject the dismissal of the case. In its decision the Supreme Court asserted that the charge “it is not arbitrary, illogical or absurd”.
Judge Garzón could face a trial for conducting an investigation of crimes under international law on the ground that he did so after finding correctly that the 1977 Amnesty Law violated international law.
A state may not avoid its obligations under conventional or customary international law by pleading that it could not do so because of its national law.