UN condemns Spain for dismissing Judge Baltasar Garzón from office

The UN Human Rights Committee, which monitors compliance with United Nations Covenant on Civil and Political Rights, composed of 18 independent experts representing the 5 regions of the world in which the supranational organization is divided, elected by secret ballot from the 173 countries which have ratified the said pact, condemned the Spanish State for the expulsion of the judge Baltasar Garzon of the judiciary, for having intervened in the process of investigating the enforced disappearances of civil war and the Francoism, and the Gürtel plot, criminal proceedings for corruption involving the last governments of Popular festival (Franco on the right).

The Committee reported that Garzón “was prosecuted and tried criminally in 2012 for allegedly procrastinating in two cases of great political importance at the national level. In the case Francoism assumed the power to investigate enforced disappearances during the Civil war and the general’s dictatorship Francisco franco. In the case belt decided to intercept the wiretaps between the defendants and their representatives to prevent the commission of crimes. He was acquitted by the first procedure, but convicted by the second, sentenced for “prevarication and disqualification of his post for 11 years”.

In both cases “the trials (…) were arbitrary and did not respect the principles of judicial independence and impartiality”, concludes the opinion published today in Geneva, a copy of which is attached. The debate on the act between the experts, the different governments which succeeded each other in Spain, and the former lawyer for the magistrate, since Garzón filed a complaint in Geneva in 2016, ended up proving him right. His decisions as a judge “constituted at least a plausible legal interpretation, the greater or lesser adequacy of which was examined on appeal, without it being inferred that the said decisions constituted fault or incompetence which could justify his inability to exercise his powers. functions, ”he said. the committee.

Experts added that “the interpretation of Boy, with which other judges and the public prosecutor have given their agreement, even in the event of error, as indicated in the State, did not constitute serious behavior or incompetence which could justify their criminal conviction”. And they said that “even in the event that Garzón had made a miscarriage of justice, this should have been corrected by means of a review by a court superior and not by the criminal prosecution of the former judge ”.

“The trials were arbitrary and did not respect the principles of judicial independence and impartiality”

The Committee in turn noted that “Article 14.1 of the International Covenant on Civil and Political Rights (whose observation it is required to examine) establishes the right of everyone to be tried by an independent and impartial tribunal ”. This “includes an implied warranty against arbitrary or politically motivated proceedings.” Considering on this occasion that the victim is a person who exercised the functions of judge in the aforementioned events, “this right is of particular importance and (he) guarantees that he can exercise his judicial work without undue interference or hindrance, protecting it arbitrary criminal or disciplinary proceedings. Said one of the 18 experts in the public statement also released today by the HIM HIM, who, like the other members of the Committee, are neither employees nor civil servants of the organization, live off their work in their place of origin or residence, and only charge a per diem for their travel from function to The United Nations.

The Committee He also castigated the cruelty of the Spanish judicial authorities towards the former judge of the High National Court domiciled Madrid. He argued that “Boy did not have the right to be judged by a impartial tribunal and recalled that some of the judges of the Supreme Court those who tried him intervened in both cases, despite Garzón’s request that they be challenged. To make matters worse, “the processes were processed simultaneously; oral tests for both causes took place five days apart; and the sentences were pronounced 18 days apart ”.

In turn, the committee “also criticized the fact that Garzón did not have access to a second instance to appeal, given that he was tried in the first and only instance by the Supreme Court, the highest instance Spanish judiciary “. The experts reaffirmed that “in the specific case of belt conviction for procrastination versus Boy it was “arbitrary and unpredictable” because it was not based on sufficiently explicit, clear and precise legal provisions ”. To this end, they relied on Article 15 of the Commitment by which they must ensure, which establishes “the principle of legality and foreseeability, that is to say that no one can be condemned for acts which were not sufficiently foreseen at the time when they were committed “.

As has been said, Spain is one of the 173 states that have ratified the United Nations Covenant on Civil and Political Rights, which entered into force in 1976, and is also one of 106 states that have ratified the Optional protocol of this Pact, which allows an individual to present his ills before the Committee once the judicial authorities of the country concerned have been exhausted. Now with this decision, the 18 experts admit that Boy He has properly substantiated his claim that he suffered “multiple violations of his human rights during these two processes” listed above.

“Conviction for procrastination versus Boy it was ‘arbitrary and unpredictable’ “

It is significant that this opinion is the first “conviction against a State for use of the criminal law against a judge within the framework of his functions, thus establishing a new jurisprudence”, announced the Committee. It could constitute a lesson which should comfort the judges “to be able to interpret and apply the law without fear of being sanctioned or judged for the content of their decisions. It is essential to preserve judicial independence ”. It would therefore be commendable for Spain to restore Baltasar Garzón to the post from which he was unfairly separated.

In Geneva, Juan Gasparini, co-author with Norberto Bermudez of “The secret witness”, Journalistic Investigation Book into the actions of Judge Garzón in the cases of Argentina and Chile, Javier Vergara, Buenos Aires, 1999. It can be consulted free of charge at www.juangasparini.com