Not a prophet in his own land

April 14, 2010 9:40 AM

Baltasar Garzón is a Spanish judge known for his cases on human right abuses by south american dictatorships under international law, specially the case against Augusto Pinochet. Now, after admitting a case against abuses during Franco's Era, he is facing accusations by extreme right groups of deliberately ignoring the Amnesty Law of 1977, possibly questionable under the same universal jurisdiction that gained him international renown. In a controversial decision, the case has been admitted by the Spanish Supreme Court, and so Garzón is facing the possibility of up to 20 years of suspension.

The general outcry( not everywhere) in the international media against this decision has brought the Supreme Court to schedule an unprecedented meeting [Spanish] with the press to explain the details of the case. Meanwhile, in Argentina a case has been filed against Franco's crimes, in response to the procedure against Garzón.

Spain remains divided on the case. On one hand, celebrities [Spanish] and labour unions [Spanish] are already showing support for the magistrate; on the other hand, right wing parties view this positioning as an attack on judicial independence [Spanish], very much in the spirit of "let bygones be bygones". [Previously, 2 ]

posted by valdesm (14 comments total)

Can somebody who's more familiar with the Amnesty tell me if it's similar at all to Ford's pardoning of Nixon?
posted by Pope Guilty at 9:47 AM on April 14, 2010

well, it was a general amnesty for all crimes commited by anyone for political reasons, and part of the quid pro quo that led to the amnesty of political prisoners, the legalization of left wing parties and finally a democratic order, which is why it was never revoked. So it's not something to be proud of, but that was probably necessary at the time.
posted by valdesm at 10:07 AM on April 14, 2010 [1 favorite]

Apparently the legislature has previously contemplated a commission for the investigation and reparation of these types of crimes (without success), and the UN has requested the same.

Some prosecutors have argued that even if the 1977 act is repealed or invalidated, the crimes still cannot be brought to court due to an elapsed 20-year statute of limitations. I'd guess that this kind of judicial pressure is trying to force the legislature to provide an alternative like the one suggested above, a restorative justice commission to investigate, acknowledge, apologize to and reimburse victims of these crimes.
posted by mek at 10:19 AM on April 14, 2010

Here's a good piece from last summer on this: The Memory That Will Not Die: Exhuming the Spanish Civil War
posted by homunculus at 10:21 AM on April 14, 2010 [2 favorites]

Argentina tries probing crimes of Franco's Spain. Excellent. Now the application of Universal Juristiction will help force the Spanish Judicary to investigate the cases of the missing and identify those in the mass graves.
It is no coincidence that the hounding of Garzon is happening alongside the ever expanding Gurtel corruption scandel deeply involucrating the Conservative Partido Popular. The case against Garzon is originally driven by Manos Limpias which is a Falange organization. This in itself should be cause for concern. Spain is in great danger of failing the democracy test if Garzon is dismissed. The country is vastly polarised left vs. right and the Politicians are losing what little credibility they have.
posted by adamvasco at 11:31 AM on April 14, 2010

I still think Dirk Benedict was a better ... wait a second, this is not a Battlestar Galactica thread.
posted by Astro Zombie at 11:41 AM on April 14, 2010 [1 favorite]

I want to thank Astro Zombie for going where I was wanting to go.
posted by Joey Michaels at 12:02 PM on April 14, 2010

I've always had mixed feelings about Garzon. I cheered when he put Pinochet in the crosshairs. But as a lawyer (admittedly no expert on Spanish Law), there got to be a point where he got sloppy, like the Cheney thing. I just can't respect that. And when you cut corners, you give your opponents opportunities that they never would have had in the first place. And if this current case results in him getting suspended, it will have been a mistake on his part that created his downfall.
posted by Ironmouth at 1:09 PM on April 14, 2010

Mr. Garzón’s own legal problems also stretch beyond his controversial civil war investigation, with two separate legal complaints filed against him — over personal funding allegedly received from a leading Spanish bank and over alleged illegal eavesdropping as part of a corruption investigation. Ironically, that investigation is now coming to a head, with prosecutors releasing this week evidence purported to show that several members of the opposition Popular Party were involved in a network of kickbacks and other illegal payments, including the former party treasurer Luis Barcenás.

Didn't know that. Huh.
posted by Ironmouth at 1:12 PM on April 14, 2010

Pope Guilty: “Can somebody who's more familiar with the Amnesty tell me if it's similar at all to Ford's pardoning of Nixon?”

It would be exactly the same if Richard Nixon had been a quarter of the population of the US instead of one person.
posted by koeselitz at 1:49 PM on April 14, 2010

Spain's Memory War: - 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......
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.......
At the time of writing (2008), 79 countries have signed the Convention and five have ratified it. Spain has signed but has not yet ratified the Convention, but it is a Party to the Rome Statute of the International Criminal Court. Under Article 7(1)(i) of the Rome 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”.........
The UN Human Rights Committee supported Judge Garzón’s initiative. On 31 October 2008 it stated that the “amnesty concerning grave violations of human rights was in contradiction to the provisions of the Covenant (the International Covenant on Civil and Political Rights 1966)”. It recommended that Spain “abolish 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”.
posted by adamvasco at 2:24 PM on April 14, 2010

I guess the Bush Six will breathe easier if he gets suspended. And whatever happened to the Guantanamo Probe, anyway?
posted by fartknocker at 8:56 PM on April 14, 2010

Ironmouth, what was the Cheney thing?
posted by fartknocker at 8:57 PM on April 14, 2010

One thing that must be clarified for foreigners is that Garzón is not a judge in the sense of common law judges. He is an "investigating magistrate".

Under the Napoleonic Code, public prosecutors aren't at all independent, but very much under government orders. To compensate for this, in Spanish law, as in many other Napoleonic Code countries, there are two checks to the public prosecutor: first of all, there is the possibility of private prosecution. Many of those controversial cases (both the Pinochet case and the case against Garzón, for instance) were started by private prosecutions. The second check is the investigating magistrate. Unlike the public prosecutor, the investigating magistrate is independent, and he gets the task of overseeing the investigation. This may involve confronting an underzealous public prosecutor (as in the Pinochet case) as much as reining in overzealous prosecutors and police.

As for the present case, I'm slightly ambivalent. Garzón is certainly one of the "good guys", and his "trophy wall" shows plenty of nasties: drug kingpins, ETA terrorists, anti-ETA "dirty war" counterterrorists, crooked politicians, and, not least, Pinochet. On the other hand, even his admirers will admit readily that he's a bit of a "prima donna", and he had an aborted, seriously misguided stint into politics which left him open to accusations of partiality: he was briefly a junior minister under a Socialist Party government, post which he left acrimoniously, to then lead an investigation of the dirty war against ETA that basically brought that government down...And yes, he's often been accused of being somewhat sloppy legally.

Still, I don't know about law, but justice and fairness are certainly to his side, and not to that of his many, many enemies.
posted by Skeptic at 1:18 AM on April 15, 2010 [2 favorites]