Garzón May Appeal Case Outside Spain

• by Tito Drago (madrid)
• Wednesday, February 08, 2012
• Inter Press Service

At Supreme Court hearings on Monday and Tuesday, relatives of persons who disappeared during the Franco era demanded the right to know what happened to their loved ones, and backed investigations into their fate.

Among those who testified were Olga Alcega, president of the Asociación de Familiares de Fusilados y Desaparecidos en Navarra (Association of Relatives of Those Executed and Disappeared in Navarre), Antonio Solsona of the Grupo de Recuperación de la Memoria de Castellón (Castellón Group for the Recovery of Memory), Emilio Silva of the Asociación Recuperación de la Memoria de León, Bierzo, Burogs y Zamora (León, Bierzo, Burgos and Zamora Association for the Recovery of Memory) and Antonio Ontañón of the Asociación Héroes de la República y la Libertad ('Heroes of the Republic and Freedom' Association).

Garzón is charged with criminal malfeasance, or knowingly handing down an unjust ruling, for opening an investigation into the competence of his court to judge 114,266 cases of forcible disappearance of persons from July 1936, when a military coup sparked the 1936-1939 Civil War, through most of the dictatorship of general Francisco Franco (1939-1975).

Judge Garzón, who is internationally known for having indicted the late Chilean dictator Augusto Pinochet, is accused of contravening the 1977 Amnesty Law, which by virtue of his office he should allegedly have upheld.

The plaintiffs in the Historic Memory case, who are demanding a 20- year disbarment from the bench for Garzón, are Manos Limpias ('Clean Hands'), a civil servants' organisation, and the Libertad e Identidad ('Freedom and Identity') association, both far-right groups.

In an interview with IPS, Andrés López, a legal expert specialising in human rights, said he is against the trial of Garzón 'because none of the crimes he is alleged to have committed actually exists'.

Judges are empowered to carry out the dictates of the law, and according to the laws in force in Spain, crimes against human rights committed during the period in question have not lapsed, as they have no statute of limitations, so the amnesty law is not applicable, he said.

López is optimistic that if Garzón is convicted and sentenced, the verdict will be overturned by the European Court of Human Rights.

In contrast, veteran legal expert Fernando de Salas, honorary rector of the Society for International Studies, told IPS that Garzón had overstepped his authority and meddled in matters where he cannot and ought not to take any action. 'He harmed both the Spanish judiciary and the universal justice system,' he said.

Garzón, who has been suspended from his post, vigorously denied all the charges against him Jan. 31 when testifying to the Supreme Court, and declared himself competent to investigate the crimes of the dictatorship.

He also claimed that exhumation orders he issued, in response to petitions for death certificates for 35 persons allegedly responsible for crimes perpetrated by the military during the Franco regime, were legitimate. Later he closed that case and declared the extinction of criminal responsibility of several persons who were deceased.

Garzón told the Supreme Court that he had not broken the amnesty law, because 'it refers to crimes of a political nature, and in no way can it be said that (the alleged) crimes against humanity could have any political nature.'

Despite this defence, the Supreme Court ruled the trial would go ahead, by four votes to three.

A flood of support

Literary and artistic personalities packed Madrid's Bellas Artes theatre Monday to support Garzón and the victims of the Franco regime. Among the performers were singer-songwriters Ismael Serrano, Luis Pastor, Lucía Sócam and Pedro Guerra, while speeches were made by actors Alberto San Juan, Pilar Bardem and Juan Diego Botto.

Hilda Farfante, whose parents were Republican schoolteachers shot by Francoist firing squads, was the voice of the victims at this event, along with volunteers belonging to organisations that are excavating the common graves, which they can legally do because they applied for, and received, legal sanction from judge Garzón.

Another source of support is the German section of the International Association of Lawyers Against Nuclear Arms (IALANA), who said it would be a disgrace for Spain and all of Europe if Garzón is made to pay with the end of his professional career and the ruin of his good name, for investigating the dictator Franco and his henchmen.

In an open letter published Monday, the lawyers say the trial brings into question the principle of judicial independence, and ask whether the Supreme Court judges' decision will be independent of the still powerful forces of the old regime, and will defend judge Garzón's judicial independence.

Gonzalo Martínez, Garzón's defence lawyer, on Tuesday submitted to the Supreme Court the sentences of several courts, based on similar proceedings to those undertaken by his client. They included verdicts by the European Court of Human Rights, the Inter-American Court of Human Rights, several United Nations international tribunals, and courts in countries like Argentina, Chile and Peru.

José Antonio Martín, an emeritus Supreme Court judge, said Spaniards cannot pass on to future generations 'the perennial malady of not wanting to know and refusing to find out the truth.'

This is why, in Martín's view, precedents of trials for human rights abuses have to be followed, for instance those in Germany, Argentina, Chile, Italy, South Africa, Croatia, Rwanda and Sierra Leone, and therefore Garzón's actions must be accepted as right. The justice systems in those countries responded to local and international lawsuits and admitted for trial crimes similar to those perpetrated in Spain.

Martín emphasised that these crimes, categorised as 'crimes against humanity,' are not subject to a statute of limitations under international law. He added that the 1977 amnesty law in Spain only refers to political acts, 'not, on any account, to acts of terrorism,' whether committed by state agencies, civilians or civil society organisations.

The Historic Memory case is not the only legal difficulty Garzón faces. In 2006 he was charged with alleged bribery, for illegally taking funds from a Spanish bank intended as a donation to New York University, where he was a visiting professor and fellow, and later allegedly taking a judicial decision in favour of the president of the bank.

In February 2009 he was accused of ordering illegal phone taps of conversations between detainees and their defence counsels in the Gürtel case, one of the greatest corruption scandals in democratic Spain, which implicates prominent members of the centre-right People's Party, now back in government.

© Inter Press Service (2012) — All Rights ReservedOriginal source: Inter Press Service

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