On 13 October 2020 HRiP filed final submissions on behalf of Baltasar Garzon in his long-running case against Spain before the UN Human Rights Committee.
In July 2020 the Spanish government submitted its response on the merits of the human rights complaint submitted by Garzón to the UN Human Rights Committee in January 2016. In a troubling rebuke to the Committee’s authority, the government purported to be answering as a matter of “courtesy,” not legal obligation. This week we presented Judge Garzon’s response to those governmental submissions and called on the Committee to bring the case to an end and to decide in favour of the applicant.
This remarkable and troubling case concerns multiple criminal prosecutions of a judge on the sole basis of his interpretations of the law. In the ‘Franquismo’ case, Judge Garzón was prosecuted for authorizing preliminary investigative steps into crimes against humanity perpetrated during Spain’s Franco regime, interpreting amnesty and prescription as inapplicable to such crimes in light of international human rights standards and Spanish jurisprudence. In the Gürtel case, he was prosecuted, convicted, and removed from office for 11 years for authorizing limited interceptions of prisoner-lawyer communications, provided there were indicators of criminality and measures taken to protect the rights of the defence. As our brief makes clear, both cases concerned areas where Spanish law was controversial, in flux, and subject to differing evaluations by different judges. In both cases, his decisions were reasoned and reasonable. All these decisions were challenged, appealed and overturned. His interpretations were far from unique, and similar judicial decisions had been taken by other judges (without the consequences inflicted on Judge Garzón). Despite this, he was subjected to criminal prosecution and punishment, with grave implications for his rights, and for judicial independence more broadly.
Since the case was filed in January 2016, the government has repeatedly sought to have this case dismissed, making multiple objections to admissibility to avoid having to deal with the substance of the claim. Such admissibility arguments continued even after the UNHRC decided, in October 2019, that the case was admissible. The Committee found Garzón’s claims ‘sufficiently substantiated’ on multiple grounds. These included: the inherent arbitrariness of prosecuting a judge for controversial legal interpretations, and violations of fair trial (under art. 14(1) ICCPR), the denial of the right of appeal (Article 14(5)), and the violation of the principle of legality through the expansive and unforeseeable interpretation of the vague crime of “prevaricacion” (criminal malfeasance) (Article 15).
Regrettably the Spanish response still fails to acknowledge, or respond to, the heart of the violations. It continues to argue why judge Garzón’s decisions were ‘erroneous’ in its view. The government still purports to justify prosecuting a judge for finding an amnesty law inapplicable to egregious crimes, despite the fact that doing otherwise would bring Spain in conflict with its international obligations under the ICCPR. Even after multiple other sources reached the same interpretation as Garzón of the law governing interceptions, and the Spanish law subsequently changed in line with his approach, the government also still purports to justify prosecuting him for that interpretation too. It does not engage with the fact that the question is not whether a judge’s interpretation and evaluation was correct, but whether it can justify criminally prosecuting them for their decisions.
Despite the notorious violation of his rights, the applicant has had no remedy or recognition for over ten years later. Beyond the rights implications of the case for him, the brief underscores the even more profound impact of these facts on judicial independence. At a time when the prosecution of judges has reared its head as a repressive tool of choice in several corners of Europe, and beyond, the Committee’s decision will have particular resonance. It has been asked this week to finally recognize that prosecuting a judge for the exercise of judicial functions is a flagrantly arbitrary use of criminal law in violation of the ICCPR, and to reassert the fundamental nature of judicial independence as a pre-requisite of the rule of law the effectiveness of the entire system for the protection of human rights.