The Truth about the Garzón Case

por Emilio Campmany, 22 de abril de 2010


1. Baltasar Garzón: Defendant in Three Different and Independent Investigations
Baltasar Garzón is the most well-known Spanish judge abroad. He came to worldwide attention when the judge ordered the arrest of the former Chilean dictator Augusto Pinochet during his stay in London. This judge has also issued indictments against Argentine dictators. Now Spain’s Supreme Court has charged Judge Garzón with three counts of abuse of power. It’s known in Spanish as “prevaricación” or intentional judicial error. In Spain, knowingly taking an unfair decision or resolution is a criminal offense. This particular offense can only be committed by government officials – particularly judges. The deliberate betrayal of trust doesn’t take place when court decisions are revoked by higher courts, but only when officials choose to make a decision that knowingly goes against the law. As you may guess, in practical terms it means that the problem is to prove that the judge adopting that resolution was aware of his being unfair.
The renowned judge is presumed guilty of each of the three charges against him that have been investigated in three separate cases. Regarding the first charge, the Court has already decided to indict him. In other words, the Court understands that there’s enough evidence to justify the case against Mr. Garzón for intentional judicial error. Choosing this avenue doesn’t exclude the possibility that the prosecution might not be able to demonstrate the defendant’s guilt at trial. The only decision taken here is that, since the evidence is strong enough, there are grounds for a trial to determine if the offense was committed or not.
2. Garzón Accused of Intentional Judicial Error
Mr. Garzón presumably committed his first intentional judicial error while investigating crimes occurred under the dictatorship of Francisco Franco. This circumstance has led the international media to believe the version peddled by Spanish leftist newspapers. These papers have sought to present the case as if pro-Franco organizations have accused Judge Garzón for investigating the crimes of their members who are currently protected by ageing Supreme Court justices nominated to the high Court during the last years of Franco’s dictatorship – something that would somehow turn these judges into accomplices of the Franco era. It’s incredible that the international media follow the lead of El País, which is a Spanish newspaper controlled since its foundation by journalist Juan Luis Cebrián who actually was the executive producer of all news broadcast programs for Spain’s public television during the last years of Franco’s dictatorship.
It’s not hard to realize how the discourse has easily been diverted to wonder instead if such crimes should be investigated – or not –by the Spanish justice system under the protection of international law against genocide. Yet, irrespective of whether the Spanish public should or shouldn’t engage in that debate, the Garzón issue is something else. The judge isn’t being accused for investigating the crimes of the Franco era, but for knowingly overreaching his authority by adopting an unfair decision. His decision was indeed to launch an investigation into those crimes. Concrete circumstances make his decision unfair and the judge knowingly perpetrated this injustice. Firstly, the procedure was to indict dead people and Judge Garzón knew they were dead, e.g. the case of Francisco Franco himself whose death was a well-known fact to all Spaniards. Secondly, Spanish law specifically bans the filing of criminal indictments against dead people. In addition, Mr. Garzón’s probe contravened a Spanish 1977 general amnesty law; it made no sense to investigate these people, dead or alive, since this law wouldn’t allow a conviction regardless of their innocence or guilt. Thirdly, what’s argued here is that Garzón wasn’t applying Spanish law, but the international variety. There could have been some legal grounds in favor of this argument had it not been Judge Garzón himself who, some years ago, decided that the Spanish Amnesty Law trumped international law in the case of Santiago Carrillo – the well-known communist leader, still alive and responsible for the murder of several thousands in Paracuellos del Jarama in 1936 when he was Councilor for Public Order in the Defense Council of Madrid. (There are some doubts in regards to the amount of victims, going from 2,000 to a maximum of 7,000 people – with many teenagers among the victims.) Santiago Carrillo is undoubtedly the only participant of the Spanish Civil War who is still alive and that could be indicted as a war criminal. When he allegedly committed the terrible crimes of which he’s accused, he was a member of the Socialist Youth, a youth organization under the wing of the Spanish Socialist Workers’ Party (PSOE) – Spain’s current ruling party with José Luis Rodríguez Zapatero at the helm. It’s the same party that included Baltasar Garzón on its ballot for Madrid in the 1993 general election as then Prime Minister Felipe González’s number two. 
In view of the situation, it becomes completely irrelevant that Falange Española is one of the organizations accusing the judge. This group is just   one of the small groups claiming to be heirs of the Spanish Fascist Party, Falange Española de las JONS, which helped General Franco to win the Spanish Civil War and was somehow involved in government affairs during the Franco era. It’s equally irrelevant to suggest that the Supreme Court justices embrace a pro-Franco ideological persuasion when they had never been accused of such a thing before, not even when the PSOE Government of Felipe González was accused of murdering and kidnapping ETA terrorists or of embezzlement when it misappropriated the reserved funds of the Spanish State. Furthermore, the one in charge of Mr. Garzón’s indictment is Luciano Varela, a well-known leftist judge and founder of the Association “Judges for Democracy,” which enjoys close ties with the Socialist Party.
3. Mr. Garzón, Eavesdropping, and Attorney-Client Conversations
The other two legal complaints against Judge Garzón, still to be reviewed by the Supreme Court in order to decide in favor or against prosecution, are equally relevant. The first one has to do with Mr. Garzón ordering to tape the conversations between detainees implicated in the so-called Gürtel Affair (a case of political corruption involving some businessmen and leaders of Spain's conservative Popular Party or PP) and their lawyers while in jail, violating attorney-client privilege. Spanish law prohibits such actions because they violate the right to present a defense. If the prosecution gets to know the strategy designed by attorney and defendant in prison conversations, it would be much easier for the prosecution to obtain a conviction. Nonetheless, Spanish law does allow judges to resort to such options in terrorism cases. It’s so because leaders of the terrorist organization ETA have used their own attorneys as messengers to transmit orders for terrorist operations. However, the Gürtel detainees are not terrorists; they are only businessmen that have corrupted some PP politicians.
4. Mr. Garzón Receives 300,000 dollars from Spain’s Most Important Bank
The last accusation against Mr. Garzón has to do with a tax fraud case filed against Emilio Botín, the chairman of Banco Santander – Spain’s most important bank. Baltasar Garzón opened proceedings against the banker because Mr. Botín’s organization provided clients with a financial product engineered to avoid taxation. Starting from a certain amount, tax evasion is a crime in Spain and the Bank could be liable for being an accessory in the commission of an undetermined number of tax offenses. Emilio Botín, as chairman of the bank, would be the obvious person liable for these offenses – if there were indeed offenses. So, while this case was under investigation in his court, Judge Garzón began to set up a course or seminar in New York that he would direct. Mr. Garzón personally wrote a letter to Mr. Botín – the press has already published the document and Judge Garzón has not denied his authorship – soliciting the banker for funds to finance the seminar – around 300,000 dollars. The bank provided the money and when Mr. Garzón came back from New York, he shelved the case filed against Mr. Botín. In this instance, it will be difficult to prove a direct relationship between cause and effect, between the money paid by Mr. Botín so that Judge Garzón could organize his own seminar and his shelving the investigation once he came back from United States. Yet, regardless of the outcome, we can say that, ethically and morally, it’s objectionable to see a judge asking for money to a banker who is a defendant accused of a very serious offense in that same judge’s court.
5. Spain Cannot Tolerate That the Commission of Crime Goes Unpunished
Mr. Garzón might have engaged in commendable causes for the benefit of the human race in the past. He might even be a person deserving of the Nobel Peace Prize. But all those deeds cannot serve to grant him impunity in court if he commits a crime. It’s precisely this way in the United States, Great Britain, and any serious country with a functioning democracy, rule of law, and separation of powers. And what one cannot pretend is to push the Spanish people to gullibly accept that crime can go unpunished thanks to merits accomplished under other circumstances; the same media defending Mr. Garzón today wouldn’t tolerate it in the case of British or American judges, regardless of their actions against genocidal dictators or war criminals.
©2010 Translated by Miryam Lindberg