Trials of former Spanish judge lack independence and impartiality: landmark case

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Former judge Baltasar Garzón of the Spanish National Court was suspended in 2010 and prosecuted and tried in 2012 for alleged abuse of power in two cases of major political importance at the national level.

In the first case, Mr. Garzón assumed jurisdiction to investigate enforced disappearances during the civil war and the dictatorship of General Francisco Franco.

Judges should be able to interpret and apply the law without fear of punishment – Member of the UN Human Rights Committee

Through the second case, called Gürtel, he ruled on a political corruption scandal in which the former judge decided to monitor communications between defendants and their representatives.

Mr Garzón was acquitted in Franco’s proceedings but was convicted of deliberate abuse of power in the Gürtel case and removed from his post for 11 years.

The Committee stressed that even if the former judge had committed a miscarriage of justice in both cases, it should have been corrected by a review in a higher court and not by criminal prosecution.

First decision against a state

In 2016, Mr. Garzón filed a complaint against Spain before the UN Human Rights Committee – the body of independent experts responsible for monitoring compliance by signatory states with the International Covenant on Civil and Political Rights.

The former judge alleged that he suffered multiple human rights violations during the two trials.

This is the first time that the Committee has tried and convicted a State for using the criminal law against a judge in the exercise of his functions, thus establishing new jurisprudence.

“Judges should be able to interpret and apply the law without fear of being punished or tried for the content of their decisions», Concluded José Santos Pais, member of the Committee. “It is essential to preserve judicial independence.”

The decisions “did not constitute serious misconduct”

In the Francoist procedure, the Committee clarified that Mr. Garzón’s decisions “constituted at least a plausible legal interpretation, the merits of which were examined on appeal, without it being concluded that such decisions constituted fault or incompetence which could justify his inability to perform his duties ”.

Regarding the Gürtel case, the Committee considered that “Mr. Garzón’s interpretation, shared by other judges and the Public Prosecutor, even if, as the State claims, it was wrong, did not constitute serious misconduct or incompetence that could justify his criminal conviction ”.

The right to an impartial tribunal “violated”

Mr. Pais noted that the right to be tried by an independent and impartial tribunal is of particular importance in the case of judges, because it “guarantees that they can exercise their judicial functions without undue interference or hindrance, protecting them against arbitrary criminal or disciplinary proceedings”.

The Committee concluded that Mr. Garzón’s right to be tried by an impartial tribunal had been violated.

The committee pointed out that some of the Supreme Court justices who tried it intervened in both cases, despite Mr. Garzón’s request to challenge them; the tests were carried out simultaneously; the oral trials in the two cases took place five days apart; and the judgments were handed down 18 days apart.

Members also criticized Mr Garzón’s lack of access to a second instance to appeal, given that he has only been tried once by the Supreme Court, the highest judicial body. from Spain.

In the Gürtel case, the Committee underlined that the conviction for deliberate abuse of power against Garzón was “arbitrary and unpredictable” because it was not based on sufficiently explicit, clear and precise legal provisions.

Article 15 of the Covenant establishes the principle of legality and foreseeability, that is to say that no one can be condemned for acts which were not sufficiently explicitly foreseen at the time when they were committed.

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