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by Migeru
On February 9th a guilty sentence was handed down in the first of three ongoing trials of Spanish investigative judge Baltasar Garzón.
ElPais.com in English: Crusading Judge Garzón thrown off the court bench for 11 years Specifically, the 56-year-old Garzón was convicted of breaching his duties and violating the constitutional rights of several public corruption defendants by ordering phone taps of their jailhouse conversations in 2009.Heavy stuff. Judge Garzón is a flamboyant, attention-seeking judge who, by some accounts, happens to be a shoddy investigative judge when all is said and done. However, it would appear that he's being subjected to a judicial lynching. I am not a lawyer, but it would appear that none of the three cases he's undergoing actually have merit (I'll go into the salient features of each). Garzón has made lots of enemies along his judicial (and political, see below also) career, both on the left and on the right. This is therefore a fully bipartisan ejection from the judicial career. What makes this situation rather serious in my opinion is that Garzón has been judged already by public opinion, which is divided mostly along partisan lines. The more radical left has gone as far as to go out on the streets today under the slogan ni respeto ni acato, i.e., "I neither respect nor abide" (by the Supreme Court's ruling). I think it is dangerous when a substantial portion of the population (including parlamentarians from the United Left and the left wing of the PSOE) decides that the Supreme Court is corrupt. There are even op-eds in ElPais (still the country's paper of record) saying as much (Google translate version). This at a time where the indignados continue to agitate (after 9 months) on the streets under the slogan no nos representan ("they do not represent us"), an explicit rejection of representative democracy as currently practiced in Spain. About 5 months ago, the Constitution was urgently reformed over the objections of all parties except for the PP and PSOE, which led to claims by parlamentarians that "the constitutional consensus" (of 35 years ago) was "now broken". Recently the newspaper El Mundo published a director's letter (i.e., a signed editorial - see google translation) suggesting that Garzón will eventually emerge as a populist leader for the indignado movement. I think that's off the wall, but equally I think the situation is becoming explosive, with the state institutions losing legitimacy before a large section of the population while at the same time the conservatives have a comfortable hold on power at all levels of government and may be quite ready to crack down.
First off, a little background. Spain follows the Roman Law and French Civil Code legal traditions, and under an inquisitorial criminal justice system criminal investigations are carried out by investigative judges called jueces de instrucción. In US American terms, they combine some of the functions of a Grand Jury, a judge, and a prosecutor. If and when the investigative judge wraps up their investigation and decides there is evidence of criminal wrongdoing, a separate trial judge takes over. That is, the investigative judge takes no part in the trial phase. There is a separate state prosecution office that takes part in both the investigation and trial phases. Garzón has made a name for himself as an investigative judge in Spain's Audiencia Nacional (National Court), a special jurisdiction created to try terrorism, corruption and other serious cases.
I claim above that Garzón is a notorious attention grabber. Regardless of the merits of the cases, I think this is a fair description of his prosecution of former Chilean Dictator Augusto Pinochet. Garzón thus became an internationally renowned advocate of universal jurisdiction for crimes against humanity. He has been involved in prosecutions of Argentinean military officers, the US Government, and one of the three cases he's himself under trial for stems from his attempt at prosecuting crimes against humanity by Spanish Dictator Francisco Franco dating from the Spanish Civil War of 1936-9 and its aftermath. Yes, Generalissimo Franco is still dead, but things remain pretty damn well tied down as he left them (as we say in Spain, lo dejó todo atado y bien atado). When I say that Garzón is a shoddy investigative judge, it's because it appears that his prosecutions have a tendency to either be thrown out or fail to lead to conviction when the cases get to the trial phase. However, I cannot speak to the details of this. Garzón also had a brief but spectacular political career. In 1993, the Socialist government of Felipe González faced elections while in the throes of a number of corruption scandals. González drafted several judges for his election campaign, putting Garzón as number 2 on the Madrid party list which he himself was heading. Garzón didn't get to be minister of Justice, but Secretary of State in charge of fighting corruption. He resigned a few months after taking office, claiming González "didn't take the fight against corruption seriously". It was notorious that he had strong frictions with three other prominent judges that González had made minister and secretaries of state for other functions. Some of these grudges linger until today, and Garzón is seen as getting his comeuppance by his progressive enemies, who are actively involved in prosecuting him (don't think all the Supreme Court judges involved in these cases are conservative). Now for the details of the judicial lynching. The unanimous sentence handed down today for illegal wiretaps and violation of attorney-client privilege has to do with a political corruption case in which Garzón had jailed some of the suspects pending trial (this was still during the investigative phase) and there were suspicions that some of the defence attorneys were assisting their clients in directing money laundering operations from jail (though the Supreme Court's decision stresses that there was no prior evidence of the attorneys' involvement which should have been gathered by other means - see here and google translation). However, the current law is explicit that only in terrorism cases can such wiretaps be allowed and a legal reform that would have extended it didn't come to fruition. The lawsuit was launched by a defence attorney of another indictee who was not jailed and who was not being subjected to wiretaps; the lawyer was recorded when he met with the wiretapped indictees who were not his clients (see this summary or its google translation). The defence alleges that the police had requested the wiretaps of the jailed indictees, the state prosecution office made favourable reports about them, the judge that took over the investigation of the case after Garzón was removed from it continued the wiretaps, and there was a dissenting opinion in the earlier Supreme Court decision to throw out the evidence gleaned from the wiretaps. The defence alleges further that Garzón scrupulously attempted to protect attorney-client privilege by instructing that any recorded conversations involving the defence lawyers be redacted in what related to the defence strategy in the case. All of these arguments have been rejected by the Court. In addition, in what smacks of selective enforcement, wiretaps are routinely ordered by investigative judges, and later thrown out as evidence without this leading to prosecutions of the judges that ordered them. In this respect also the Garzón case seems to be unusual. The second case being tried is for accepting bribes. The spanish judicial term for this is cohecho which refers to a public official accepting gifts prior or posterior to either carrying or failing to carry out their duties, as well as accepting gifts by reason of their office and not of their actions (the latter case is called cohecho impropio). So, Garzón stands accused of accepting bribes by reason of his office because he accepted an invitation as guest lecturer at an academic programme in the US which was partly funded by a Spanish bank which was involved in a separate case Garzón was investigating. Garzón's personal and family accounts have been scoured and there's no record of any payments, overt or covert. Presumably he travelled to the US as a guest speaker with expenses paid, but that's about it, from the academic programme that the Spanish bank was partly funding. Ironically, the case which Garzón was investigating and which led to yesterday's sentence was related to a recently judged bribery case of two conservative politicians (formerly a regional president and his deputy). In their case, they had multiple bespoke suits tailored for free, the tab being picked up by the corruption and money-laundering network Garzón was investigating. The allegation is not that the suits were in exchange for favours, but purely by reason of the political offices the recipients were holding. The politicians were acquitted by a people's jury. The third case is no less ridiculous. In a very in-character case of attention-grabbing, Garzón decided to investigate unaccounted-for deaths from the 1930s and 40s, on the grounds that they constituted crimes against humanity with no statute of limitations, and that since the bodies are not accounted for the crimes are ongoing as disappearances or kidnappings. As part of the investigations Garzón did some surprising things such as requesting Franco's death certificate. Anyway, at some point a far-right "union" and what's left of Franco's single party, the Falange, filed a lawsuit against Garzón for declaring himself competent to investigate deeds which his court had no competence to investigate. Now, here comes the peculiar feature of this case. The judge that received the original complaint, which was full of errors, should have thrown it out for defects of form but, instead, returned the brief to the plaintiffs with annotations so they could correct it and re-submit it so that he could accept it. Thus, the judge became "judge and party" to the prosecution of Garzón. Regardless of the merits of the complaint against Garzón, I am shocked that the Supreme Court hasn't thrown out the case and indicted the other judge. Incidentally, you would expect this to be a conservative judge, but it was actually a progressive one. Surely this has to do with Garzón "getting his comeuppance" from his brief political career. In closing, to repeat what I said in the introduction, the most serious consequence of all this is that people are becoming polarised along partisan political lines and that most people to the left of the "serious" Social Democrats are becoming disenchanted about the legitimacy of the judiciary itself, this at a time when the indignado movement is questioning the social compact and the concept of representative democracy, and can't fail to gather strength given the 25% unemployment (and 50% youth unemployment) figures and the projections that the economic situation will get worse for at least a year before it starts to gets better. The same radical left already feels like the 35-year "national consensus" around the Constitution was broken when the constitution was reformed urgently and under pressure last September to introduce a "debt brake'. I have a feeling this can't end well. What do you think? |
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Clipping the wings of a judge | 97 comments (97 topical, 0 editorial, 0 hidden)
Clipping the wings of a judge | 97 comments (97 topical, 0 editorial, 0 hidden)
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