Judge Luciano Varela and the President of the Criminal Chamber of the Supreme Court, Juan Saavedra, have themselves been accused in a private criminal complaint (querella) of serious violations of law in issuing an order of prosecution (Varela) against Judge Baltasar Garzón and in freezing the proceedings (Saavedra) in the underlying litigation which forms the basis of the charges against Garzón.
With respect to the case against Garzón, it is not an overstatement to say that the entire Judiciary in Spain is on trial.
It is difficult to comprehend how the Supreme Court of Spain has rejected earlier appeals by Garzón to halt the proceedings. Judge Varela, according to reports in El País, has jumped the gun by characterizing the facts in dispute as constituting the more serious of two possible crimes which the alleged facts could even conceivably have constituted.
The first crime is that of Intentional Unjust Decision (Prevaricación) under Article 446.3 of the Spanish Criminal Code, which provides:
The Judge or Magistrate who, knowingly, shall issue a decision or resolution that is unjust shall be punished:
1) With sentence of from one to four years imprisonment in the case of an unjust judgment against the accused in a criminal case for a felony when the sentence has not yet been executed, and with one and a half times the same sentence if the judgment has been executed. In both cases there will be imposed the additional punishment of absolute disqualification for a period of 10 to 20 years.
2) With the sentence of a fine of six to 12 months (wages) and special disqualification from public employment or office for a period of six to 12 years, in the case of an unjust judgment issued against a defendant in the case of a midemeanor (falta),
3) With the sentence of a fine of 12 to 24 months (wages) and special disqualification from public employment or office for a period of 10 to 20 years, when he issues any other decision or resolution that is unjust.
The second crime is that of Grossly Negligent Unjust Decision (Prevaricación) under Article 447 of the Criminal Code, which provides:
The judge or magistrate who, by gross imprudence or inexcusable ignorance (imprudencia grave o ignorancia inexcusable), shall issue a decision or resolution which is manifestly unjust shall incur the punishment of special disqualification from public employment or office for a period of from two to six years.
Given the clear precedents that exist in international law, including a judgment by the European Court of Human Rights in 2003 upholding the French conviction of Ely Ould Dah of Mauritania for torture despite the fact that he was not present at the trial and despite a law of amnesty in Mauritania, it is difficult to see how the Spanish Supreme Court could reject the appeal of the denial of Garzon’s motion for dismissal, as they in fact did.
Whether Baltasar Garzón’s decisions were correct or not in accordance with Spanish law is a matter for the Spanish courts, and ultimately the European Court of Human Rights, to decide. The European Convention on Human Rights is itself part of Spanish constitutional law.
Appealing the decisions of a judge on legal grounds is a correct and proper way to express disagreement with a decision, within a democratic state governed by law.
Criminally prosecuting the judge who is the author of that decision in an attempt to end his career, is quite something else.
A travesty of justice has already occurred, at two levels: first, the order of prosecution by Judge Luciano Varela, and second, the decision of the Supreme Court to deny Garzon’s appeal of Varela’s denial of his motion for dismissal.
How long this travesty of justice continues will tell us a lot about the Spanish judiciary and the individuals who currently hold the highest judicial offices in Spain.
The idea that a European judge could have his career in effect ended by the machinations of fellow judges against him, for ordering the investigation of where victims of crimes against humanity (forced disappearances and presumed executions) are buried, is a stain on the Spanish Judiciary, which will remain until Garzón is cleared of these charges and any other charges of a similar nature.
Should the Spanish courts persist in failing to rectify this obvious abuse of judicial power, that stain will ultimately be sealed in history with a judgment against Spain by the European Court of Human Rights.
The Trenchant Observer
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Further Reports and Commentaries from El País
Reed Brody, “The dismal assault on Baltasar Garzón,” The Guardian (guardian.co.uk), Tuesday 13 April 2010
Pere Rïos, “El acoso al juez Garzón: Dos asociaciones de la memoria histórica se querellan contra los magistrados Varela y Saavedra,” El País, el 12 de abril de 2010
Julio M. Lázaro, “El acoso al juez Garzón: Dos asociaciones acusan a los jueces Varela y Saavedra de prevaricación,” El País, el 13 de abril de 2010
“El acoso al juez Garzón: El Poder Judicial rechaza los actos de apoyo a Garzón,” El País, el 12 de abril de 2010 El País, el 13 de abril de 2010
Natalia, Junquera, “El acoso al juez Garzón “Imaginación creativa” o delito permanente de derecho internacional; La Justicia europea ha restringido leyes de amnistía sobre crímenes universales, El País, el 13 de abril de 2010
Auto del juez Varela por el que abre procedimiento abreviado a Garzón
DOCUMENTO (PDF – 41,19Kb) – 07-04-2010
Manifiesto de Apoyo al Juez Garzón