Category Archives: Garzon

Garzon goes to the ECHR…

… as a plaintiff, not as a judge. According to this press release from Interights, Balthazar Garzon has filed a complaint before the European Court of Human Rights challenging his prosecution in Spain for having opened an investigation in 2006 into events having taken place during the Franco era, despite the existence of an amnesty law.

Readers of this blog (here, here and here) will know that I did not join Garzon’s fan club when these events unfolded last spring. I was puzzled at how little consideration was given to the Spanish legal system, and ultimately, I believe that Garzon has ambitions that far exceed the constraints of his function in Spain and should consider a career in an international court, such as the ICC.

So what is the basis for this complaint. Here is a relevant portion from the press release:

Judge Garzón’s case represents a threat to the independence of judges and to their role in ensuring accountability for alleged widespread and systematic crimes. In his case Judge Garzón alleges that the criminal case against him in Spain violates several of that country’s obligations under the European Convention on Human Rights. These include the obligation to protect judicial independence generally, including protecting judges from unfounded criminal prosecutions as exemplified by this case. Specifically, the prosecution of Judge Garzón violates the duty not to subject individuals to an inherently unfair criminal process, to only prosecute on the basis of clear criminal law, strictly applied, to respect private life and professional development and the right of judges to reasoned judicial decisions in the exercise of judicial functions.

Just a few brief comments.

First of all, I’m not even sure the case is admissible. Indeed, “the Court may only deal with the
matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken” (Article 35, EConvHR). His case has not started, and therefore Garzon has not exhausted all local remedies, especially given the fact that there is no certainty that he will indeed be found guilty. Of course, Garzon could claim undue delay in the prosecution itself, given that after a year, the trial has not started, but that is not what Interights seems to be arguing.

Second of all, there seems to be a confusion about what the ECHR does. Of course, its ultimate ambition and goal is to promote the rule of law, which does include an independent judiciary, but it is not an institutional supervision body, it does so through the violation of specific human rights of specific individuals. It is NOT an institutional rule of law supervision body. And more importantly, Human Rights Law was always primaril (although arguably that is changing) aimed at protecting individuals against the State, not the State against the State.
How does this apply to the present case? Well, the “obligation to protect judicial independence” is not specific enough to warrant a complaint. What is exactly the right being violated in the particular instance? The Press Release is ambiguous on that, but seems to be claiming the general interest of ensuring accountability for human rights violations. If that is the case, then I believe Garzon doesn’t have standing before the ECHR, as he is not directly affected in that respect. It would be for the victims of the crimes to claim that they have not received an effective remedy due to the amnesty law and the decision not to pursue the investigation, which, as far I can tell, they haven’t done (ironically, I did find a case where plaintiffs complained before the court that they had not benefited from the amnesty law, without raising an eyebrow among the judges…). In relation to this, I’m wondering if this complaint is not only unfounded legally on this point, but also disingenuous in its presentation. Indeed, according to Interight:

 The potential chilling effect on other judges when they come to determine legally or politically controversial cases is obvious, and a serious threat to judicial independence and the rule of law.

But that would only be true if the current prosecution was actually the cause for the interruption of the investigation. However, it was not! Indeed, it appears that in 2008, Garzon went to a confirming judge with his opinion about the amnesty law, who told him that he should discontinue the investigation, which he did. So the threat of prosecution is irrelevant to the fact that he followed orders in 2008. (Incidentally, that makes me agree with one point of the complaint: Garzon seems to have followed the rules. Whatever his opinion of the amnesty law and its applicability, he stopped the investigation when told to do so. That seems to be the normal functioning of a legal system, and I’m not quite sure why he should be prosecuted now)

Third of all, and as an aside, I find quite ironic the claim that a prosecution should be on the basis of “clear criminal law”, when human rights activists are usually quite happy to have individuals prosecuted for international crimes that are sometimes ill-defined in elusive customary law, where defendants are expected to know that there is enough state practice (i.e, that he’s taken the time to read the criminal codes of a number of foreign countries) for a particular provision of an international convention has attained the status of custom (see Kononov at the ECHR for an example of that).

All in all, this complaint once again illustrates the style of Judge Garzon, who just cannot prevent himself from showing his grand ambitions in terms of human rights policy, irrespective of the specific legal setting he might be operating in. His current ECHR stint is at best premature, and at worst frivolous, whatever one thinks of the Spanish Amnesty law.

Follow up: Garzon suspended

Apparently, the judge in charge of handling the charges against Garzon has ordered his trial to begin. This has triggered an emergency meeting by the General Council of the Judiciary who decided unanimously to suspend him.  It seems that he therefore will not be able to go to the ICC. I’m not sure how a national suspension affects the ICC’s capacity to hire or not someone, but that appears to be the situation right now.

Once again this decision has triggered some hyperbolic responses. According to a prosecutor at the Audienca National, his suspension would “put an end to the principle of universal justice”. Not universal jurisdiction, universal justice! For another commentator, his suspension would be catastrophic because he “symbolises international justice for citizens around the world”.
I’d like to stress that my position is not to defend the 1977 Amnesty law, or impunity for war crimes around the world, but just to bring some measure to the debate and define more clearly its parameters.
This being said, I remain astonished at how this situation is being considered. Like I said in a previous post, everybody seems to forget that Garzon was “just” a Spanish judge, not some super world prosecutor. He has a choice to quit and become an activist or go work for the ICC. But right now he is still a agent of the Spanish Judiciary and is bound by Spanish laws and accountable to his hierarchy. Once again, it is surprising to me at how little consideration and benefit of the doubt is given to the Spanish legal system.
Also, from a point of view of perceptions of Garzon as the symbol of “universal justice”, one has to question the foundations of the created belief in the first place. The human rights community created this symbol forgetting the national function of Garzon. He is an important element in the development of a general framework to fight impunity, but in no way does the future of “universal justice” depend on him.
On a related point, the human rights narrative functions on this idea of a threatened and fragile human rights minority under the threat of  the rest of the world. That is just not true anymore. The unanimity of the support for Garzon shows that. Of course there is still enormous progress to be made in the protection of human rights in the world, but the importance of the human rights movement and its impact, both in influencing countries and in international negotiations, such as the ICC, makes the “besieged discourse” far less convincing. The need to create outrage is understandable to obtain results, but this systematic hyberbolic discourse of repression seems to me to be slightly counter-productive on the long run, when you see the enormous advance of human rights in the last 20 years. 
Discourse creates expectations, and if you create too high expectations, they will obviously be disappointed. This could be the starting point of a general discussion of international justice in general, but let’s keep this for another time… 

You read it first on Spreading the Jam: Garzon at the ICC

Well, he’s not exactly the new prosecutor yet, as I predicted some weeks back, but he is getting closer to an institution that fits better his “world approach” to justice. Garzon has asked to be transferred to the ICC for seven months as a “consultant” for Prosecutor Ocampo. Not only is it not necessarily a good idea for the ICC to hire such a polarizing figure, but more importantly, should the ICC really be hiring someone who is under 3 investigations for judicial misconduct in his home country? The charges might seem “political”, but to the last of my knowledge, Spain is a European democracy (with some problems, but still, don’t we all have them?), not some third world dictatorship. I’m a little puzzled at how easily the proceedings are being dismissed as “merely” political. It is the same judicial system that allowed Garzon to operate for so many years on his progressive approach to universal jurisdiction. Or maybe i’m just naive… In any case, I really don’t think it looks good for the ICC to take sides on this one (which it will clearly be doing, even indirectly, by letting Garzon work for it).

Future of Appeal of Dead Defendant at the ICTY (and a footnote on Garzon)

Last friday, Rasim Delic, a former Bosnia Army General, died while awaiting the result of his appeal against his three year conviction for war crimes. It has to be a relief the the tribunal that he was provisionally released and that he has not joined the list of defendants that died in the UN detention center.

His death raises interesting questions because apparently, he is the first defendant to die during the appellate phase. I must say I’m not too sure what to think about what should happen to the proceedings and wanted to throw some random thoughts out there for your consideration.

One argument is to say, as when other defendants died, that the proceedings should cease. That would be an open and shut case. But somehow, I feel, without being exactly able to argue my point yet, that the situation is different on appeal. Before the Trial Judgment, if the proceedings are stopped, the presumption of innocence means that the person dies innocent. There has been no consequence of the ongoing proceedings because, legally, it is as if they had never started. On appeal, the presumption of innocence doesn’t work anymore (or does it?) and he would die guilty if the proceedings were to stop before the issuance of the appeals judgment. That somehow does not feel right.
One has to keep in mind the hybrid nature of the appellate process in international criminal courts. In most national systems, an appeal is basically a new trial and the appellate procedure suspends the sentence of the first instance tribunal. Afterwards there is usually a third degree of jurisdiction which only determines whether the lower courts have made a mistake of law, and the procedure is not suspensive. At the ICTY, the Appeals Chamber fulfills both functions. It is a judge of law, mostly, but also of fact, without there being a new trial per se (which leads to the weird procedure whereby the Appeals Chamber can overturn a finding of innocence or increase the sentence, without any chance of appeal, which  I personally find disturbing, as I’ve already argued, but that’s a different issue). Interestingly, the Appellate procedure does not suspend the sentence.

With all this in mind, there are, in my opinion two approaches.
1) I would prefer that the appeal judgment be rendered. What is in the dock at this stage is the Trial Judgment, not the defendant anymore. I think it is in the interests of the good administration of justice that we know whether the trial chamber got it right. Especially as, from what I’ve seen on the website, all the appellate hearings seem to have been concluded, so the rights of everybody to be heard have been respected.
2) If the proceedings are called to an end, there remains the question of what to do with the Trial Judgment. In order to respect the presumption of innocence, I think the trial judgment should be quashed for reasons of equity.

Whatever the judges decide, the worst would be for them, faced with this novel situation in international criminal proceedings and because it is likely to happen again, to issue an unsubstantiated order that would give no indication on their reasoning.

Footnote on Garzon:
Thank you for your reactions to my thoughts on the Garzon proceedings. I wanted to add a small point, although it doesn’t fundamentally change my general views on the whole situation and on the way people have reacted to it.
It appears, and I’ve had difficulty in finding precise information, not being a Spanish speaker, that the investigation was stopped in 2008 following a court decision. If that is the case, I do think that Garzon has a strong defense in the current proceedings. Indeed, if Garzon initiated an investigation and then went before a judge to confirm it, failed to obtain that confirmation and then stopped the proceedings, I don’t see where the abuse of power would be constituted. The normal procedure seems to have been followed. It happens daily in every system where a prosecutor or investigative judge builds up a case and then is told that he got it wrong by a court. If that is an abuse of power, then every national prosecutor would be facing such charges at one point in their career. That’s just how the system works.
Of course, at this stage, this is just speculation, as I can’t seem to get hold of the alleged 2008 decision or its content. If anybody has it, I’d be happy to read it.

Some thoughts on the Garzon lovefest: next step the ICC?

In recent weeks, the media and the human rights community have concerned themselves with the case against well-known Spanish judge Baltasar Garzon, famous among other things for initiating proceedings against former Chilean President Augusto Pinochet. I’ve mostly read expressions of support for the Judge, but they generally confuse the different issues under consideration.
Apparently, what Garzon is being prosecuted for is for having initiated an investigation into disappearances that occurred during the Spanish Civil War and the Franco era, therefore exceeding his jurisdiction because of a 1977 Spanish Amnesty Law covering these crimes. This situation raises several questions.
The first one, that all have put forward, is the validity of the amnesty in relation to international law. More specifically, are national amnesties for international crimes, more particularly crimes against humanity, contrary to international law? A lot has been written on this issue and this is not the place to answer the question. I have written an article expanding on the different aspects to be considered. In a nutshell, I don’t think this is a relevant question in the context of the Spanish national system. IF, and I insist, IF, amnesties for crimes against humanity are deemed contrary to international law, the main consequence is that thet won’t be recognised by another State’s courts, or by international tribunals. It does not mean that they are not applicable in the legal system of the country that adopted them, in our case, Spain (and as an aside comment, anybody who has actually read the decisions on amnesties issued by the SCSL should be weary in referring to them, given their obscure drafting and debatable legal reasoning…).
More importantly, the international illegality is irrelevant in the national setting in relation to the specific procedure that undoubtedly exists to challenge the legality of a norm. Even if the amnesty is illegal under Spanish law, whose role is it to contest this amnesty? In most of the reports I’ve read, commentators seem to forget that Garzon is not an investigative judge of the world community, he is an investigative judge of Spain, and is an agent of its judicial system. Some have argued that the current proceedings run counter to judicial independence. But judicial independence does not mean unaccountability. A Spanish investigative judge cannot act beyond the scope of the jurisdiction of Spanish law and go beyond the powers vested into him by Spanish Law. It is not his role to contest this law. If Human Rights organisations, or victims’ groups want to file a complaint in national courts opposing the legality of the 1977 Amnesty, fair enough, it is their role, not that of an investigative judge.
Another point that is highlighted in most commentaries, is the fact that “The charges were brought by two far-right groups who fear an open investigation of the Franco-era record” (NY Times Editorial) and that “allowing politically motivated groups to use the courts to intimidate magistrates and pre-empt investigations into past injustices appears to be a step backwards for human rights”. Of course I don’t have any sympathy for the far-right Francoist groups who brought the allegations before the court, but I find this remark a little disingenuous, or at the very least, naive. Courts are open to everybody, irrespective of whether one likes the person or group. When Amnesty International or Human Rights Watch file Amicus Curiae before national or international courts in favor of a certain position, they also are “politically motivated” (this would require some discussion on the useful but illusory narrative that human rights are “apolitical”…). They are also trying to “intimidate” dictators into not committing war crimes. Everybody has an agenda, and I refuse to deny legal standing based on my personal ethical evaluation of the ideological content of an organisation.
Finally, many have pointed out that Spain must face its past in order to move forward. Probably. But once again, how is that relevant to evaluating whether Judge Garzon has gone beyond his mandate in the existing legal setting? If that is his fight, he should quit and join activist groups that rightly call for more accountability for the Franco-era crimes. If he takes the risk of working on the fringes of legality, as an agent of the judicial system, he must bear the consequences of his actions.
In summary:
1) Yes, amnesties for crimes against humanity might be contrary to international law, 2) yes, one can argue that Spain’s amnesty law prevents the country from facing its past, but 3) Garzon is not a human rights body (such as the Inter-american court of human rights) whose function is to evaluate these issues, 4) Garzon is not a political leader or human rights activist whose function is to promote change, 5) he is an investigative judge of the system, whose function is to investigate within the existing legal framework, and thefore 6) if he goes beyond his function, whatever the valid moral reasons to do so, he should bear the consequences and 7) if he’s not happy with the existing legal framework, he should quit.
However much Garzon and his supporters have wanted to portray him as a world crusader against impunity, functionally, he is “only” a Spanish investigative judge. If he wants to campaign against amnesties in the international legal order (a perfectly legitimate goal), he should leave and continue his campaign as an international activist. Personally, and I know that might seem a little far fetched, I see some parallels between Garzon and Ocampo in portraying themselves as lone crusaders against the forces of evil. It must be an Hispanic cultural trait that could be called the Don Quichotte Complex, but that could be the topic of another post.With all this in mind, I’ll take a side bet on the Garzon affair paving the way for him replacing Moreno Ocampo at the ICC. He would fit the bill perfectly in terms of experience and he would not be hindered by petty considerations of respecting national rules on sovereignty, amnesties or immunities…. Any thoughts on that?