Judge Baltasar Garzón: The Latest Victim Of Franquismo

During an examination of Spain 's human rights record in May this year at the UN Human Rights Council, Mexico asked Spain to investigate tens of thousands of cases of the Franco-era 'enforced disappearances', to punish perpetrators, and to provide redress to victims.

On 21 September 2010 the Spanish representative told the Council that it was rejecting the call. Spanish judges and courts - he said - are bound to act according to legal principles which bind the judiciary.

This was not the first call: there had been such demands in previous years. What is new is that, since 13 May 2010 , Spain has been a member of the Council. Its predecessor, the UN Human Rights Committee, recommended as recently as 31 October 2008 that Spain "[repeal] the amnesty law of 1977 and take legislative measures to guarantee the non-applicability of statutory limitations to crimes against humanity by the national jurisdiction."   It also re-iterated that " [the] amnesty concerning grave violations of human rights was in contradiction to the provisions of the [International Covenant on Civil and Political Rights 1966]." All Spanish Governments have persistently ignored such calls.

Just two weeks before the recent Council's meeting the Criminal Chamber of the Spanish Supreme Court in Madrid had unanimously upheld the lower court's order that Judge Baltasar Garzón of the Audiencia Nacional - the National Court - should stand trial for the charge of the delito de prevaricación - the crime of knowingly overstepping his judicial competence. Garzón was 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 claimed was politically motivated. The bench of five judges (Juan Saavedra, president, Juan Ramón Berdugo, Joaquín Jiménez, Francisco Monterde and Adolfo Prego) denied Garzón's appeal of the order, and he will face trial sometime this year. The judges 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 comes just two days after an Argentine court reopened the case against the Franco regime for crimes against humanity.

Garzon has faced turmoil since his 2008 decision. On 14 May the Spanish Consejo General del Poder Judicial - the General Council of the Judiciary (CGPJ) voted unanimously to suspend Garzón. On 18 May the judiciary oversight committee of the CGPJ accepted a request by Garzón to work as a consultant at the International Criminal Court for a period of seven months in order to improve its investigative methods. On 12 May the ICC had invited Garzón to work with it. When news of the charge became known thousands gathered in cities across Spain in support of Garzón, parading with flags of the Second Republic that Franco had assassinated. Garzón is widely known for favouring universal jurisdiction, a doctrine which 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. He had become famous for employing such doctrine extensively in the past to bring several high-profile rights cases, including those against the former Chilean dictator Augusto Pinochet and Osama bin Laden.

~ more... ~