| Baltasar Garzón | |
|---|---|
| Investigating Magistrate of the Central Court of Criminal Proceedings Number 5 | |
| In office 1987 – 14 May 2010 |
|
| Succeeded by | Fernando Pablo Ruz |
| Member of the Congress of Deputies | |
| In office 1 July 1993 – 9 May 1994 |
|
| Succeeded by | Rafael María García-Rico Fernández |
| Constituency | Madrid |
| Personal details | |
| Born | 26 October 1955 Torres, Andalusia, Spain |
| Nationality | Spanish |
| Political party | PSOE |
| Spouse(s) | María del Rosario Molina Serrano |
| Alma mater | University of Seville |
Baltasar Garzón Real (Spanish pronunciation: [baltaˈsar ɣarˈθon]; born 26 October 1955) is a Spanish jurist who served on Spain's central criminal court, the Audiencia Nacional. He was the examining magistrate of the Juzgado Central de Instrucción No. 5, which investigates the most important criminal cases in Spain, including terrorism, organised crime and money laundering.
In 1993-94 he was elected a deputy and briefly held a ministerial role in the Felipe González's socialist government. Following his return to the Audiencia Nacional, he led a series of investigations that helped convict a government minister as the head of the Grupos Antiterroristas de Liberación (GAL), a state terrorist group.
Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former Chilean president, General Augusto Pinochet, for the alleged deaths and torture of Spanish citizens.
Garzón was indicted in April 2010 for exceeding his authority when investigating crimes committed by the Franco regime that were included in an amnesty,[1] and suspended on 14 May 2010, pending trial.[2] He has been given permission to work as a consultant at the International Criminal Court in The Hague for 7 months from May 2010.[3]
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Born in Torres, Jaén, Garzón was appointed to the Audiencia Nacional in 1988, and rapidly made his name in Spain by pursuing the Basque terrorist group ETA.[4]
In 1993, he asked for an extended leave of absence as a judge and went into politics, running for the Congress of Deputies (the lower house of parliament) on the party list of then ruling party PSOE. He was also declared head of a strengthened National Plan Against Drugs by Prime Minister Felipe González. He resigned this post shortly after being appointed, however, complaining of lack of support from the government.
His investigation in 1987 led to the conviction of José Barrionuevo Peña, the then Interior minister, as head of the GAL, a state terrorist group.
Garzón made his name as a magistrate through several police operations centred on drug-trafficking in Galicia. Colombian cartels, such as the Medellín Cartel, would utilise Galician clans, already accustomed to smuggling in tabacco, to smuggle drugs into Spain. In 1990, Operación Nécora led to the conviction of members of the clan led by Laureano Oubiña. The following year he was involved in another investigation - Operación Pitón - which led to the conviction of members of the Charlines clan.
About 1999 he investigated Jesús Gil, the former mayor of Marbella and owner of Atlético Madrid, on grounds of corruption. Gil was convicted in 2002 and died in 2004
Garzón has also fought against ETA: he has presided in many trials against alleged ETA members. In July 1998 he presided in a case against Orain S.A., the Basque communication company that published the newspaper Egin and owned the radio station Egin Irratia. Garzón ordered the closure of both and sent some of the company officers to prison, due to their alleged links with ETA. These charges were later dropped for lack of evidence, and the journalists were released. Many years later Garzón imprisoned them again under the allegation of being part of ETA in a "broader" sense. Egin was allowed to reopen years later by the Audiencia Nacional, after all charges were found without foundation. In February 2003 Garzón also ordered the closure of Egunkaria once again alleging links with ETA. In October 2002 Garzón suspended the operations of the Batasuna party for three years, alleging direct connections with ETA. In February 2008 he also ordered the ban of two Basque nationalist parties, which had filled the political space of Batasuna: EHAK and EAE-ANV on the same grounds.
On 17 October 2008, Garzón formally declared the acts of repression committed by the Franco regime to be crimes against humanity, and accounted them in more than one hundred thousand killings during and after the Spanish Civil War. He also ordered the exhumation of 19 unmarked mass graves, one of them believed to contain the remains of the poet Federico García Lorca.[5][6]
On 17 November 2008, Garzón said that he was dropping the investigation against Franco and his allies after state prosecutors questioned his jurisdiction over crimes committed 70 years ago by people who are now dead and whose crimes were covered by an amnesty passed in 1977. In a 152-page statement, he passed responsibility to regional courts for opening 19 mass graves believed to hold the remains of hundreds of victims.[7]
A major corruption inquiry, code-named "Gürtel" from the name of its ringleader, Franscisco Correa, ("Gürtel" being German for "belt", which is the meaning of "correa" in Spanish), involving bribes to People's Party, was led by Garzón. This inquiry has been transferred to alternative courts following his indictment (see below)
Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former Chilean dictator Augusto Pinochet for the alleged deaths and torture of Spanish citizens. The Chilean Truth Commission (1990–91) report was the basis for the warrant, marking an unprecedented use of universal jurisdiction to attempt to try a former dictator for an international crime. Eventually it was turned down by British Home Secretary Jack Straw, who rejected (on health grounds) Garzón's request to have Pinochet extradited to Spain.
Garzón also filed charges of genocide against Argentine military officers on the disappearance of Spanish citizens during Argentina's 1976-1983 dictatorship. Eventually Adolfo Scilingo and Miguel Angel Cavallo were prosecuted in separate cases. Scilingo was convicted and sentenced to over 1000 years incarceration for his crimes.[8]
Garzón issued indictments for five Guantanamo detainees, including Spaniard Abderrahman Ahmad and United Kingdom resident Jamil El Banna. Ahmad was extradited to Spain on 14 February 2004. El Banna was repatriated to the United Kingdom, and in 2007, Garzon dropped the charges against him on humanitarian grounds.[9]
In March 2009, Garzón considered whether Spain should allow charges to be filed against former officials from the United States government under George W. Bush for offering justifications for torture.[10] The six former Bush officials are: Alberto Gonzales, former Attorney General; John Yoo, of the Office of Legal Counsel; Douglas Feith, former undersecretary of defense for policy; William Haynes II, former general counsel for the Department of Defense; Jay Bybee, also at Justice Department's Office of Legal Counsel; and David Addington, Vice President Dick Cheney's Chief of Staff.
However, the investigation was assigned to Judge Eloy Velasco who chose not to pursue it stating that Spain cannot investigate the case unless the U.S. denies to itself.[11] In a U.S. diplomatic cable leaked by WikiLeaks it is revealed that Chief Prosecutor Javier Zaragoza intended to argue that the case should not be assigned to Judge Garzón,[12] and in a later cable it is stated that Garzón was "forced to give up" the investigation.[13] It is revealed that Zaragoza had strategized how to force Garzón to give up the case:
"Zaragoza said he had challenged Garzon directly and personally on this latest case, asking if he was trying to drum up more speaking fees. Garzon replied he was doing it for the record only and would let it die. Zaragoza opined that Garzon, having gotten his headline, would soon drop the matter. In case he does not, Zaragoza has a strategy to force his hand. Zaragoza's strategy hinges on the older case in which Garzon investigated terrorism complaints against some Guantanamo detainees. In connection with those earlier investigations, Garzon ordered the Spanish police to visit Guantanamo and collect evidence against the suspected terrorists. Zaragoza reasons that he can use this fact to embarrass Garzon into dropping this latest case by suggesting Garzon in some sense condoned the U.S. approach to detainee issues circa 2004. Garzon took no action in 2004 when the suspects returned to Spain and reported to him their alleged mistreatment. Zaragoza said that if Garzon could not be shamed into dropping the case, then he would formally recommend Garzon do so and appeal if Garzon ignored him."[14]
On 29 April 2009, Garzon opened an investigation into an alleged "systematic programme" of torture at Guantánamo Bay, following accusations by four former prisoners.[15] Similarly, the leaked cable indicates that the Chief Prosecutor intended to also fight this investigation and that he feared, "Garzon may attempt to wring all the publicity he can from the case unless and until he is forced to give it up."
According to Andy Worthington, writing in the Huffington Post, Spanish newspaper Público reported in September 2009 that Garzón was proceeding to the next phase of his investigation.[16] Garzón has repeatedly expressed a desire to investigate former U.S. Secretary of State Henry Kissinger in connection with a plot in the 1970s known as Operation Condor.[17]
The Supreme Court of Spain has declared admissible three criminal accusations against Garzón for 'prevarication' which implies using his authority as a judge to intentionally subvert the course of justice. This is a very serious criminal offense punishable by suspension from any (Spanish) judicial activity for up to twenty years. It is not clear why the judicial authorities did not previously institute any internal inquiry or disciplinary proceedings (for example: following the public debate which followed the order of Garzón to open suspected Francoist era mass graves two years earlier, in September 2008), but instead preferred to rely on criminal accusations from two far right Francoist organizations Falange and Manos Limpias in order to indict him. A (Spanish language) résumé of the three cases has been published by a leftist Spanish national newspaper El País.
In October 2008, Garzón opened a controversial inquiry into alleged crimes against humanity committed by the Nationalist government during the Spanish Civil War and the years that followed the war. This action was controversial because the offenses were nearly 70 years old, previous to the concept of crimes against humanity, and a 1977 general amnesty act barred any investigations related to criminal offenses with a political aim previous to 1976. In 2008 the inquiry was suspended. In September 2009, a fascist trade union called "Manos limpias" (Clean Hands) filed a lawsuit against Garzón alleging that Garzón had abused his judicial authority by opening the inquiry. Garzón denied any wrongdoing.[18]
In April 2010, Garzón was indicted by the Spanish Supreme Court for prevarication for arbitrarily changing his juridical criteria to engineer the case in order to bypass the law limiting his jurisdiction.[19][20] If convicted, he could be barred from his duties for 20 years. Garzón's indictment has been highly divisive within Spain and controversial abroad.[1] Amnesty International and Human Rights Watch condemned the indictment, and The New York Times published an editorial supporting him, whereas The Wall Street Journal condemned Garzón's proceedings in an editorial supporting the rule of law.[21] There were public protests in Spain from left wing organizations supporting Garzón.[22][23]
The International Commission of Jurists considers that his short-lived inquiry did not justify disciplinary action, let alone criminal prosecution, adding that the prosecution of judges for carrying out their professional work was "an inappropriate and unwarranted interference with the independence of the judicial process".[18]
On April 24, 2010 Garzón presented an appeal to the Supreme Court against the judge investigating the case, Luciano Varela for giving advice to the plaintiffs about the errors in their documents. Garzón accused the judge of partiality, in having "a direct interest in the proceedings and bias in the action" and having "worked closely with the plaintiffs by offering counsel or legal advice" intended help the complainants to correct a defect in their series of indictments to meet a deadline, an action which he defined as "atypical, extra-judicial and prejudicial to one of the parties" (i.e. him, as the accused). According to Garzón, "intervention by the instructing judge is not protected under any provision of the current legal procedural rules and is clearly unrelated to the substantive rules of Spanish court procedure".[24] Luciano Varela accepted the appeal and temporarily stepped out from the case until the Supreme Court rules on the appeal.
On Tuesday 11 May 2010 Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court (ICC) requested that the Judiciary of Spain might assign Garzon as a consultant to the ICC for six months,[25] which would have allowed General Council of the Judicial Power of Spain (La Comisión Permanente Extraordinaria del Consejo General del Poder Juidicial or CGPJ) to avoid suspending Garzon during the impending trial for investigating crimes committed during the Francisco Franco era.
In response, Judge Varela bought forward his conclusion that Garzon should stand trial, and the CGPJ rejected the request of the ICC on the basis that it appeared to be simply a personal request by Moreno-Ocampo, rather than an official ICC invitation. On Friday 14 May 2010 Garzón was duly suspended from judicial activity[26] (with pay) 'as a precaution, pending judgment' as a result of the decision of Judge Varela, which suspension is formally required by Spanish law. The CGPC subsequently declared that it would require five different certificates ('informes' in Spanish) to release Garzón to the ICC as a consultant for six months during his period of suspension from judicial activity. These were:[27]
José Manuel Gómez Begresista, the president of the CGPJ's Commission for Studies & Reports, impugned each of the above five conditions, which he characterized as 'ridiculous' since Garzón had previously been assigned to such work, and no immunity from Spanish law attaches thereto. He went on to state that the decision taken by the CGPJ "lacked any legal grounds whatsoever".[28]
Later that day, the CGPJ authorised the assignment of Garzón to the ICC.
Coincidentally, on the same day, The Grand Chamber of the European Court of Human Rights in Strasbourg delivered final judgement in the case Vassili Kononov v. Latvia No. 36376/04, on 17 May 2010.[29]
The Russian Federation had maintained that any prosecution of the applicant was statute-barred, as supported by the dissenting opinion of Judge Costa joined by Judges Kalaydjieva and Poalelungi, which is essentially analogous to the basis of the prosecution of Garzon: under "Article 15 of the European Convention on Human Rights no derogation is permissible and In conclusion, [the dissident judges] consider that, in respect of Article 7 of the European Convention on Human Rights
However, in the prevailing and joint concurring opinion of judges Rozakis, Tulkens, Spielmann and Jebens, (Para #6 "the right approach, [] is that Article 7 of the Convention and the principles it enshrines require that in a rule-of-law system anyone considering carrying out a particular act should be able, by reference to the legal rules defining crimes and the corresponding penalties, to determine whether or not the act in question constitutes a crime and what penalty he or she faces if it is carried out. Hence no one can speak of retroactive application of substantive law, when a person is convicted, even belatedly, on the basis of rules existing at the time of the commission of the act." [30] Since the Spanish State of Franco had laws against kidnapping and killing, it might be difficult to argue that these acts were legal, even if they were directed by (Francoist) state officials, particularly as Garzón convicted the PSOE government officials promoting the GAL assassination squads.
On 17 December 2010 Garzon challenged five of the seven Supreme Court justices that could be appointed to judge him for his activities in respect of the exhumation of Franco victims.[31]
He alleges that Juan Saavedra, Adolfo Prego Oliver, Joaquin Giménez, Francisco and Juan Ramon Berdugo Monterde should be disqualified from officiating in any way because they have participated in pre-trial activities and thus may have an interest in the outcome that might affect their impartiality. These five judges have intervened in the investigation of the case, and the defence claims that consequently - and according to a strict interpretation of the principle of nemo iudex in causa sua - such intervention demonstrates these five judges an indirect interest in the outcome of the process.
The background to this case is that conservative opinion generally asserts that "the dictatorship" is past, and exhuming its less savoury activities is injurious to modern Spanish political interests (as may be Garzón's extraterritorial attempts to accuse foreign nationals of crimes against humanity).
Certainly founding members of the People's Party, such as Manuel Fraga, were members of Franco's government, and there may be a fear that the more aggressively socialist opposition may wish to use these exhumations to imply thereby the intentions of modern Spanish political leaders may be less than entirely democratic, and that established political entities may seek to influence the course of justice (for example - between 2005-2010 - when the PP and PSOE denied the Spanish Senate the necessary majority to approve fresh judges for the Constitutional Court of Spain)[32]
The allegation is that Garzón archived (adjourned sine die) a case against the director of Santander, Emilio Botín, in return for payment for some courses sponsored by the bank in New York between 2005 and 2006.[33]
This appeal to the Supreme Court follows a charge previously archived by the criminal court, since the alleged 1.2 million euro fee was deemed by the lower court to be in fact 216,000 euros, which was not paid to Garzón, but to the university foundation.[34]
The accused in a massive corruption inquiry, code-named "Gürtel" sought to have evidence against them ignored. The accused are asking that the evidence be ruled inadmissible, since it was obtained from conversations between prisoners and counsel, which, under Spanish law, it is claimed, is allowed only in terrorism-related cases.[35]
The U.S. Embassy in Madrid is one of the delegations from which documents have been leaked to Wikileaks
These indicate grave concern by the White House that Garzón was investigating possible "perpetrators, instigators, and accomplices" in the crimes of torture committed at Guantánamo known as The Bush Six[36] also to stop the proceedings initiated by fellow High Court judge Santiago Pedraz against the soldiers who used a tank to attack The Palestine Hotel, which was used by many foreign journalists in Baghdad. The attack killed a Spanish television journalist José Couso on April 8, 2003, and his family had lodged a formal complaint. The US authorities considered that these two investigations could be dangerous to U.S. interests.[37]
Consequently U.S. jurists came to consult Spain's foreign affairs minister Miguel Ángel Moratinos, and the vice-president of the government, Maria Teresa Fernandez de la Vega, as well as the state prosecutor general, Attorney General Cándido Conde-Pumpido, the prosecutor of the High Court Vicente González Mota and other leading members of the Spanish judiciary.
In a report published by the Spanish newspaper El Pais,[38] US Ambassador Eduardo Aguirre the Secretary of State Condoleezza Rice states that "(President of the Spanish Government) Zapatero holds a leftist pacifist foreign policy for the purpose of electioneering in Spanish politics, rather than to meet the basic priorities of foreign policy or broader strategic objectives (of Spain, and) This has resulted in an erratic bilateral zigzags relationship (between US-Spain) "
Subsequently, U.S. officials focused on the chief prosecutor of the Spanish High Court concerned with The Bush six, Javier Zaragoza. William Duncan, a political advisor to the embassy, and a US lawyer went to see the prosecutor in his office on 1 April 2009. Duncan described the encounter in a cable dated the same day: "He explained that he would decide whether to open a criminal case. The evidence was on the table in his office in four red folders a foot high," According to the account Duncan gave the embassy, the prosecutor advised the legal representative of the defendants that, if the U.S. government opened its own investigation, then Spain could not continue to claim universal jurisdiction. Duncan concludes: "This is the formula that he would prefer" and called it the "only solution"[39]
Since June 2010 Garzón has worked as a consultant to the ICC. and the legal processes were left in abeyance.
At the end of October 2010, the re-election of Judge Juan Saavedra to the Spanish Supreme Court Penal Division reactivated the three judicial processes against Garzón. The re-appointment of a right-wing judge may have suggested to the Spanish legal authorities that the complaints had sufficient weight to merit continuing the domestic process despite the rulings in the European Court of Human Rights cited above.[40]
The political colonization[41] of the Spanish Justice system is an increasingly recurrent theme in the Spanish center/left-wing media. More than 1,500 Spanish judges earlier this year criticized the influence of the major parties in the decisions of the Supreme Judicial Council (CGPJ) via a manifesto that for the first time exposed publicly what was claimed to be a long-standing open secret among Spanish lawyers.[42]
In a recent book [43] Garzón admits that he has at times exceeded the provision of domestic Spanish legislation (as in this case) but quotes external sources, including treaties that were unratified at the time.