Judicial independence is a cornerstone of the rule of law, and an essential prerequisite to the protection of all human rights, but under growing threat in many parts of the world.
The Garzón v Spain case is emblematic of the criminalisation of the judicial role, and through it the denial of justice for victims. Yet the decision of the UNHRC condemning Spain has not been implemented (see opposite).
In Tunisia, the disbanding of the high judicial council and removal of judges is part of an all-out attack on rule of law institutions. HRiP is working with victims and NGOs to challenge this through litigation and legal strategies.
In parts of the EU, most notably Hungary and Poland, notorious attacks on judicial independence are being challenged through the courts. HRiP is working with ICJ and other partners on a programme to advance strategic litigation on judicial independence across the EU.
In these and other contexts, we will work with partners to challenge attacks on judicial independence and develop effective litigation strategies. The protection of human rights defenders, including judges, lawyers and civil society, is reflected across the litigation and research work of HRiP.
Blogpost on the Global Climate of attacks on judicial independence & the Garzón case here.
Baltasar Garzón v. Spain
Landmark Garzón v Spain Decision (2021):
On 25 August 2021, the United Nations Human Rights Committee (UNHRC) issued a ground-breaking decision in the case of Baltasar Garzón v Spain. It found Spain responsible for multiple violations of Baltasar Garzón’s rights. Judge Garzón was a renowned Spanish judge, whose lengthy career in the Spanish Audiencia Nacional was truncated when he was investigated and prosecuted for “prevaricación” (or criminal malfeasance) in respect of his decision to allow investigative steps to be taken in several crucially important - but politically contentious - cases.
The case brought to the UNHRC on his behalf by Helen Duffy of Human Rights in Practice in January 2016 challenged the prosecution of a judge, based solely on his judicial decisions, as a violation of multiple rights and an attack on the principle of judicial independence underlying the ICCPR.
On 25 August 2021, the 18-person expert UN body found in his favour. In a detailed decision, it found criminal proceedings against Garzón in both the Franquismo and Gürtel cases were ‘arbitrary.’ Garzón’s judicial decisions were indisputably reasoned, supported by other judges and the Ministerio Publico, and overturned on appeal (where any alleged errors could be addressed). The Spanish courts trying him lacked impartiality and failed to guarantee the right to appeal, in violation of his basic fair trial rights. The decision vindicates the applicant’s long-running complaint that the Spanish state abused the criminal process to silence and remove him from judicial office.
Fast forward to 2023 and, regrettably, the Spanish government has taken no steps to implement the decision. In August 2023 we were informed that the UN Human Rights Committee’s Rapporteur on Follow Up has issued a report finding Spain has wholly failed to take the necessary measures to provide the “integral reparation” required by the UNHRC decision. More information on the 2023 report is here (y en Español aquí.)
Since 2021, HRiP has sought on multiple occasions to engage with the Spanish state and have made submissions on the meaning of ‘integral reparation’ in this case to the Special Rapporteur on Follow-up. In line with international standards and the Committee’s own jurisprudence, Spain should immediately restore the victim to his judicial position, delete his criminal record, provide compensation and take measures of non-repetition to ensure that such attacks on judicial independence and arbitrary resort to criminal law do not happen again.
Spain must grapple with the profound implications of the findings against it by the UNHRC and its Rapporteur on Follow Up. Its silence is an affront to the Committee’s authority and undermines Spain’s international human rights obligations.
FURTHER Background:
The complaint concerns the series of arbitrary investigations and criminal prosecutions that have been brought against Judge Garzón for his judicial interpretations. In the first of the cases against him, his alleged crime was the decision to authorise preliminary investigative steps in respect of thousands of deaths and disappearances during the Franco regime. These crimes against humanity had never been - and indeed still have never been - investigated in Spain.
In October 2008, responding to a request from victims and family members, Judge Garzón determined that the Spanish Courts had jurisdiction in the case, on the basis that Spanish amnesty laws, and statutes of limitation, did not apply to cases of this nature. Judge Garzón’s decisions were in line with international law, including the jurisprudence of the UNHRC on the obligation to investigate crimes under international law. His approach followed that of numerous other judges, in Spain and internationally, who have found that impunity cannot apply to crimes against humanity and other serious crimes under international law. Despite this, Judge Garzón was subject to a lengthy criminal investigation, public trial and suspension from judicial office.
While this trial was pending, and following national and international outcry, a second case was brought, again criminally prosecuting the judge for the discharge of his judicial functions. This concerned the decision to take certain preliminary investigative steps in one of the largest corruption investigations in Spain to date (the so-called Gürtel case), affecting the governing ‘Partido Popular’ and other powerful factions of Spanish society. On 9 February 2012, Judge Garzón was convicted, and suspended from office for 11 years. Spanish law at the time was controversial on the underlying issue, but what was clear is that others with a similar interpretation of the law and judges reaching comparable decisions before and since had never been investigated or prosecuted. As the Ministerio Público (Public Prosecutor’s office) made clear, this was a wholly inappropriate use of criminal law, based on “who he was,” rather than what he had done. Criminal prosecution for good faith interpretations of the law offends basic principles of judicial independence.
Judge Garzón, represented by Helen Duffy/Human Rights in Practice, submitted a petition to the United Nations Human Rights Committee on 31 January 2016. The complaint was supported by several expert opinions submitted by persons of high international standing and expertise including:
on international legal standards of judicial independence: Prof Carlos Ayala from Venezuela, Judge Azhar Cachalia from South Africa, Leandro Despouy from Argentina, Frank William La Rue from Guatemala, Prof Manfred Nowak from Austria and Wilder Taylor from Uruguay.
on international legal standards on the duty to investigate and impermissibility of amnesty and prescription for crimes against humanity: Dr Mohammed Ayat from Morocco, Prof Tim McCormack from Australia, Prof Juan Mendez from Argentina, Prof Pedro Nikken from Venezuela, Prof Naomi Roht-Arriaza from the US and Judge Eugenio Raúl Zaffaroni from Argentina.
on the Spanish law of “prevaricación” by Dr. Areceli Manjón-Cabeza Olmeda
On 4 February 2020 the UNHRC informed HRiP that the complaint had been declared admissible. A summary of the admissibility decision is here in English (and Spanish).
The final decision of 25 August is a landmark step not only for Garzon, but for justice and judicial independence. We are seeking to engage the Spanish government on implementation and await its response.
Full press statement in English here; comunicado de prensa en Español aqui.