London-based human rights organization The International Centre for the Legal Protection of Human Rights (INTERIGHTS) has filed an application with the European Court of Human Rights on behalf of Spanish judge Baltasar Garzón against the Spanish government, challenging Judge Garzón’s criminal prosecution for malfeasance, initiated by private groups in response to his judicial investigation of crimes committed under the Franco dictatorship. [INTERIGHTS; AFP] (Prior coverage of Judge Garzón’s suspension and charges here.) Judge Garzón is best known internationally for his exercise of universal jurisdiction over international crimes committed in other countries. His suspension and was questioned by the UN Working Group on Enforced or Involuntary Disappearances last year.
INTERIGHTS has provided background and contextual information, in addition to a summary of the legal arguments, here. The application alleges that Judge Garzón’s prosecution violates Spain’s obligations under the European Convention on Human Rights to protect judicial independence and ensure due process of law. INTERIGHTS states:
Specifically the case highlights violations of the duty not to subject individuals to an inherently unfair criminal process, to prosecute only on the basis of clear criminal law, strictly applied, and to respect for private life and professional development of the individual and the freedom of the judge to interpret the law and express judicial opinions.
See INTERIGHTS, Judicial Independence Case Brought to European Court by Spanish Judge Prosecuted for Opening Investigation into Crimes of Humanity, p. 1. Judge Garzón and INTERIGHTS maintain that his judicial decisions were reasonable and that Spanish law does not provide for criminal prosecution for the issuance of reasoned judicial judgments.
In deciding to exercise jurisdiction over a complaint presented on behalf of victims of the Franco regime that alleged widespread human rights abuses, including extrajudicial executions, arbitrary detention and torture, Judge Garzón held that – based on international and Spanish law and jurisprudence – such crimes could not be subject to an amnesty or statute of limitations, as war crimes and crimes against humanity.
The Spanish government challenged Judge Garzón’s determination, which was overturned on the ground that the national court did not have jurisdiction. After the case was turned over to local courts, political organizations filed a complaint against the judge for abuse of authority and, on appeal, a judge of the Spanish Supreme Court held that the prosecution could proceed because Garzón’s holding that the amnesty and statute of limitations did not apply was contrary to law. As a result, Garzón was suspended. His trial is pending.
The application provides support for the argument that Judge Garzón’s prosecution is inconsistent with Spanish law and the European Convention by examining international law and practice, which hold that “amnesties and prescriptions do not apply to serious crimes under international law including crimes against humanity.” See INTERIGHTS, Judicial Independence Case Brought to European Court by Spanish Judge Prosecuted for Opening Investigation into Crimes of Humanity, p. 7. It similarly highlights that prosecution of judges for their interpretation of the law is highly criticized by international human rights bodies. See id. at 8.