The case of the Victims of the Francoist regime
On December 2006 several Spanish lawyers submitted a series of criminal complaints before the Spanish National Audience (Audiencia Nacional) vis-a-vis the victims of Francoist repression in Spain. The Investigation Court to which it was assigned was Court No. 5, headed by Baltasar Garzón.
On January 29, 2008, the Prosecutor’s Office of the Audiencia Nacional, pursuant to the oral instructions of the State Attorney General issued its decision concerning the admissibility of the lawsuits, concluding that “it was not appropriate to admit for trial the lawsuits filed, ex art. 313 Lecrim, as the Central Court of Investigation is not competent and as a consequence the case should be closed”.
On October 16, 2008, almost 2 years after the complaints were initially filed, Baltasar Garzon issued a ruling stating that his court was competent and went on to investigate them. His investigation, unfortunately, was limited to locating and exhuming the bodies of the victims, rather than to ascertain criminal responsibility for their deaths. He had even restricted the investigation period to the years between 1936 and 1952.
Be it as it may, under Spanish law the National Audience is a court of limited jurisdiction, its jurisdiction includes crimes against the Crown, drugtraffiking, terrorism and serious crimes against human rights committed against Spaniards abroad. It does not, however, have jurisdiction over crimes committed by Spaniards on Spaniards in Spanish territory. "Natural" judges have jurisdiction on those cases.
Given the fact that Garzon accepted jurisdiction in a case where he clearly did not have it, a fact that as a judge he knew or should have known, he was accused of "prevarication" (i.e. failing on his duties as a judge), a charge that is still pending.
On September 2008, Equipo Nizkor and other organizations of victims of the Franco regime warned about the potential problems with Garzon taking on jurisdiction on this case (see http://www.derechos.org/nizkor/espana/doc/bgen.html). They also expressed concerns about the fact that most of the complaints concerned the exhumation of bodies, rather than a criminal investigation as to those responsible for the killings, and the lack of reliance on international law (see http://www.derechos.org/nizkor/espana/doc/inhibit.html. As expected, the Prosecutor appealed Garzon's jurisdiction.
On November 7, 2008 the Criminal Division of the National Audience sitting in banc, in a 10 to 5 decision, sided with the prosecutor and ordered the investigative judge (Garzón) to stop the investigation. On November 18, Garzón transferred 62 cases to the ordinary courts.
Under Spanish law, it is a very serious offense for a judge to wrongfully claim jurisdiction over a case. The “Consejo General de la Magistratura” (the Judiciary General Council), the judicial organ charged with overseeing the judiciary, has an open investigation as to this matter.
More worrisome for Garzon (and potentially international justice), he has been sued by two Spanish right-wing groups which claim that his real error was on ruling that the crimes in question (the killings of Spanish citizens by the Francoist regime) constituted crimes against humanity. This suit has been accepted by the Spanish Supreme Court. The Supreme Court judge on charge of the case is the same one who pronounced a dissenting opinion in favor of Scilingo, the Argentine Navy captain famous for the "death flights" and who was convicted in Spain for crimes against humanity. One of the groups which brought on the suit is "Falange Española de la Jons", the Spanish equivalent of the National Socialist party in Germany. The Spanish Congress recognized the legal legitimacy of this party when it issued the so-called "Memory Law", a law that in the name of remembering the victims of the Spanish Civil War, has actually solidify impunity for Francoist crimes in Spain. (You can see the Supreme Court's decision accepting the complaint by the Falange at http://www.derechos.org/nizkor/espana/doc/garzon42.html)
The real danger here is that the Supreme Court will rule in favor of these groups. Instead of just ruling on the objective and procedural question of Garzon’s competence, the Supreme Court can now enter into more substantive matters and can use this case as a means to reject the application of the criminal characterization of crimes against humanity to systematic acts of persecution committed during Franco’s Dictatorship.
Corruption case
Meanwhile, judge Garzon himself has greater legal problems. In 2004, Garzon took a paid sabbatical in the United States purportedly to study English. While in the US, he decided he wanted to give a series of lectures and be paid for them - despite the fact that Spanish judicial rules forbid judges from obtaining any compensation beyond their judicial salary. A complaint on this specific matter was filed with the Consejo General de la Magistratura, but not until the statute of limitations had expired.
However, new evidence shows that Garzon had not only been paid for his lectures, but that he, himself had written to Emilio Botín, the president of the Santander bank, asking for money to fund them. Botín funded Garzón to the tune of E.300,000. Not too long after, Garzon closed a criminal case against Botín. On February 2010, the Supreme Court accepted a criminal complaint against Garzon on charges of bribery (see http://www.derechos.org/nizkor/espana/doc/garzon41.html). Giving the pending charges, it's likely that Garzon will be suspended from his duties as an investigative judge.]]>