Supreme Court ruling in the “Garzón 3” (or Historic Memory) case

Continuamos la publicación de traducciones al inglés con ésta del post que comenta la sentencia que absuelve a  Garzón por su investigación de los crímenes del franquismo.

Supreme Court ruling in the “Garzón 3” (or Historic Memory) case

We shall finish off this series devoted to the successive cases brought against Judge Garzón with comments on this final ruling handed down on February 27th. This is perhaps the most interesting case of the three, from both a political and legal standpoint.

The ruling –which may be consulted here, albeit in Spanish– was accompanied by two individual opinions, one concurring (in agreement with the judgement, but not with its line of argument) and the other dissenting. As in the previous cases, it is essential to distinguish clearly between the background of this affair (in this case, crimes committed in the Franco era and the question of the shallow, unmarked graves that still exist) and the heart of the matter (whether or not Judge Garzón committed «prevaricación», i.e. “abuse of power by knowingly acting without jurisdiction”). Both questions are important and complex, certainly warranting not one, but many posts, which explains the length of this one. Before anything else, we´ll go over the proven facts to bring the reader up to speed.

In December 2006, several individuals and associations presented a lawsuit before the National Court in Madrid. Their complaint informed the Court of a series of disappearances and crimes committed during Spain’s Civil War and the post-war period, and declared not knowing the identities of the victims or where they were buried. They were therefore seeking due process to discover the truth and duly locate, identify and hand over the mortal remains in question. Judge Garzón, who received the case, did practically nothing with this case over the next two years. The interested parties formally complained about this inactivity before the CGPJ (General Council of the Judiciary) and as a result of this, in January 2008, the judge requested a report from the public prosecutor’s office regarding his jurisdictional authority. This report was negative based on the statute of limitations, the principle of non-retroactivity and Spain’s Amnesty Law of 1977. It was not until October of that year that the judge issued a further order, declaring himself competent to hear the case.  He cited the legal framework of Crimes against Humanity and put forward arguments to contest the “hurdles” put forward by the prosecutor. However, Garzón did anticipate losing such jurisdiction, once the death of those responsible had been certified. Indeed, the following month, with the corresponding death certificates in hand and before the prosecutor’s appeal was allowed by the Criminal Chamber of the National Court, the judge pronounced that criminal liability had lapsed due to the death of those people against whom the investigation was directed. Garzón passed the case on to those courts with territorial jurisdiction over the exhumations. Moreover, we must add two significant facts: the first is that, in December 1998, the judge had rejected the action brought against Santiago Carrillo (life-long Communist allegedly present at a massacre during the Civil War) and others, presented by an association of friends of the victims of Paracuellos (site of the massacre), on the grounds of the 1977 Amnesty Law. The second is that the so-called Historic Memory Law, which declares the administrative authorities to be competent with respect to exhumations, was passed in December 2007, almost one year before Judge Garzón issued the final order.

Starting with the background of the case, the first thing that should be pointed out is that it is hard to believe that now, thirty-five years after the Spanish Constitution was passed, we are still at this juncture. In an article of mine published by Javier Pradera, the much admired and sadly missed director of Claves, in October 2006 (“Recuperar la Memoria” — “Recovering Memory”), I referred to the case of the Volksbund association, a humanitarian organisation made up of volunteer youth from the countries occupied by the Nazis during the Second World War.The organisation is dedicated to cleaning and conserving the war cemeteries in Normandy where the buried fallen are… German. Something like that provokes envy, because we do not have a Memory here in Spain, we have many memories. And this is what has made it so difficult to do things that are not just worthy, but rather essential, as we still await a solution for those lying in many ditches around our country. Well, what is made crystal clear by reading this ruling, if there is anyone who did not know this before, is that the responsibility for building this Memory and satisfying the legitimate aspirations of the victims’ relatives is ours as a Nation and, therefore, corresponds to our Parliament. This is the institution which must furnish –as it started to do with the 2007 Law, albeit in a highly insufficient fashion– the means necessary to achieve this end. What there can be no doubt about is the fact that this is not the responsibility of our criminal justice system, which is there for other purposes, namely pursuing (living) offenders whose crimes have not lapsed and sending them to jail. It is not up to the legal system to undertake so-called “truth trials”, which may still be highly necessary in this country, but which call for another venue with other people in charge. Criminal proceedings are in no way the ideal way to perform this function, given that their goal is rather different. Judge Garzón was being tried precisely because he attempted to ignore this fact, with the accusation of «prevaricación» referring to the aforesaid two orders of October and November 2008.

Now, as we move on to the heart of the matter, it is necessary to repeat yet again that the crime of «prevaricación» comprises two elements, one objective (unfair decision, this being taken to mean a radical divergence from the applicable legislation) and another subjective element (doing so “knowingly”). As regards the objective element, the Supreme Court believes that when the judge declared himself competent in the first order in October, he was illegitimately skipping over four “hurdles” (as the judge himself calls them): the non-retroactivity principle governing criminal cases, an expired statute of limitations, the Amnesty Law and the absence (due to death) of any possible suspects. The order in November jumped over another hurdle, the exclusive competence of the Administration regarding exhumations. However, one of the individual opinions also refers to excess, Garzón overstepping the mark by declaring himself not qualified, due to the death of the suspects, given that this would correspond to the Chamber. We will not deal with all of these, as otherwise this post would be interminable. However, we will address the fundamental issue, namely whether considering these crimes to be crimes against humanity allows the first three hurdles (non-retroactivity, statute of limitations and amnesty) to be skipped.

The Supreme Court performed a detailed analysis of the subject (highly recommended reading for anyone interested in this fascinating question) and comes to the conclusion that Spanish Law is governed, as a cornerstone of the whole system, by the principle of legality, and its requirements of lex previa, lex certa, lex scripta and lex stricta. The classification of these incidents as crimes against humanity appears in a body of regulations that was not in force (that is, not incorporated into Spanish Law) at the time the incidents occurred, in breach of the fundamental requirement of lex previa. Using many examples and citing many cases, the Court proves that this is a principle generally accepted under International Criminal Law. Secondly, as they are ordinary offences, the crimes committed are clearly statute-barred, whatever the manner of calculating the time might be. Thirdly, the declaration that the statute of limitations is not applicable to crimes against humanity, according to the Treaties ratified by Spain, cannot be deemed to be retroactive, as these are regulations of a substantive criminal nature. Fourthly, the crimes were duly pardoned by Spain’s 1977 Amnesty Law. The Court defends its application to this case, not just because of the prevailing circumstances at the moment it was passed –wide-ranging national consensus, especially among the anti-Franco groups– but also because the inefficacy of this type of law, spawned by international legislation, cannot be of a retroactive nature (it would only be applicable to amnesty laws passed subsequently). In any case, it would require a new Law to be passed by Parliament authorising the same and so, evidently, an examining magistrate cannot take this upon himself. Finally, the judge must have been aware of the death of any possible guilty party, which would make it patently inadmissible to even initiate the investigative pre-trial stage.

It would thus appear that the requirement of the objective element has been resoundingly fulfilled, but the truth is that the majority vote, with a surprising change of tack (surprising in relation to the “Garzón 1” case), says otherwise, because it must be admitted that Garzón’s opinion was shared by a report from the Public Prosecutor’s office and, on a certain occasion, by the Inter-American Commission on Human Rights. The Court likewise cites a certain doctrinal school of thought reflected in a resolution of the Council of Europe and the European Court of Human Rights. However, in the end, it recognises that said doctrine always ends up requiring the principle of legality, even if it be in the attenuated form of international common law. In any case, all of this justifies the belief that the interpretation of the accused judge, while being erroneous, did not fall within the realms of «prevaricación», as it is not radically removed from a possible interpretation of the legislation applicable to the case.

Heavens above!… In the “Garzón 1″ case, there was even a ruling from the Constitutional Court which interpreted the famous Art. 51 of the Spanish General Penitentiary Law in the same way as the judge, apart from the fact that a literal interpretation in those terms was perfectly defensible. Nonetheless, the judge was found guilty, because the divergence from the applicable law was so radical that it practically drew in the subjective element (a judge could not fail to be aware of the fact). And now, following an impeccable theoretical class in International Criminal Law, backed up by reams of Spanish jurisprudence, the Supreme Court tells us that the existence of a report from the Public Prosecutor and from some Inter-American Commission along these lines means that the requirement of the objective element has not been fulfilled!

No wonder the two who added individual opinions rushed to lash out on this issue. The first one, the concurring opinion, feels the objective element of the charge has been sufficiently demonstrated. However, the magistrate points out that the subjective element has not been duly demonstrated during the proceedings; what’s more, he believes that the fact Garzón recused himself in the end is a sign of this lack of bad faith.

The second individual opinion, the dissenting one, is much more extensive and, with all due respect, battle-hardened. He goes all out and builds up a final line of argument which, had it been fully taken on board by the Chamber and the case were not this one, but rather that of the lawyers, would have earned him even more praise than the ruling of the “Garzón 1” case received. It is centred around the basic idea that, at all times, the judge had no intention of trying anyone, but simply that of satisfying the legitimate right of the relatives of the dead and missing to know the final resting place of their remains. Legitimate no doubt, but completely misguided, as to do so would entail a total infringement of current legislation. He thus builds up the case for the charge of «prevaricación», in both its objective and subjective elements, with fairly solid arguments, dismantling one by one the arguments of the majority and of the concurring opinions. Among other data he employs for this purpose, he cites Garzón’s rejection of the lawsuit against Santiago Carrillo –using the same arguments he now rejects– such as ignorance of the fact that the Historic Memory Law attributed this competence for authorising exhumations to the Administration. He ends by stating that the acquittal encourages precisely what pursuing the crime of «prevaricación» aims to combat: an interpretation beyond the limits of the law, in accordance with individual ideas and opinions –sometimes highly praiseworthy– of judges.

I fear the final conclusion of this series of posts has to be rather pessimistic. It portrays a judicial system –but also a society and news media– of a much lower quality than is to be expected in a modern democracy boasting the rule of law. These cases have demonstrated that Judge Garzón did not have much respect for his profession, at least not in the way that I understand respect: having a deep understanding of the purpose of his job in society, a clear understanding of the limits of its reach, and acting accordingly. He relegated his profession to second place on many occasions, sometimes to bathe in the limelight of fame, others for well-intended but deviant purposes, all in plain view and unimpeded by anyone. Until the Supreme Court decided that the time had come to put an end to this uncontrolled maverick (affording itself a competence it does not possess). If we had to choose the most suitable case for getting him kicked out, there can be no doubt that, from a technical standpoint, it was this Historic Memory case. But, obviously, this would be political suicide, especially in Spain, where the most “serious” newspapers in the country are capable of publishing headlines worthy of trench warfare propaganda. Therefore, recalling in that final dissenting vote what should have happened, yet was not politically viable, the Supreme Court opted for going overboard in the lawyers’ wiretapping case, impeccable from a media viewpoint, whether national or international. It is true that the consequences of the clumsiness and deviations of this judge have been more serious in that case than in the one we are concerned with here, but the type of «prevaricación» was also much more debatable. Well, anyway, just another example of the Spain we live in.