Baltasar Garzon vowed to see Spain's fascists in court. But not this way

Crusading judge who challenged Pinochet could be barred for 20 years after far right bring charges against him

Anita Brooks
Sunday 23 October 2011 08:03

To his supporters abroad, Baltasar Garzón is a hero, a legal crusader who has dared to investigate the abuses of right-wing Latin American dictatorships, starting with the 1998 arrest of Chile's Augusto Pinochet.

To many in Spain, the 54-year-old high court judge, forever flanked by bodyguards, is his country's gutsiest watchdog, the nemesis of drug lords, corrupt politicians and violent Basque separatists. But after two decades of crusading, Mr Garzón has also attracted criticism for what some see as his cavalier, headline-grabbing indictments, including one against Osama bin Laden. And now his detractors are having their day.

Mr Garzón was charged yesterday with abusing his powers by launching Spain's first-ever investigation into Franco-era abuses – namely the forced disappearance of 114,000 victims on the losing Republican side of the war. In a 14-page ruling, Spanish Supreme Court investigating magistrate Luciano Varela charged Mr Garzón with recklessly violating a 1977 amnesty law that shielded members of the Franco regime from legal persecution.

"This is a sad day for justice," said Emilio Silva, president of the Association for the Recovery of Historic Memory, which has led a volunteer drive to exhume the mass graves of Republican victims. In an interview on national radio, Mr Silva blamed the decision to prosecute Mr Garzón on the ultra-conservative leanings of the Spanish Supreme Court, which, he said, had failed to evolve since Franco's time.

Mr Garzón is expected to face trial next month. If he is found guilty, he could be barred from the bench for up to 20 years. "I will continue to defend my absolute innocence," he said last month when an appeal was rejected.

The lawsuit is one of three now pending against the judge, one of which takes aim at his corruption inquiry into the opposition Popular Party. It was brought before the Supreme Court by three extreme-right groups, including the Falange de las Jons, a modern splinter group of the Franco-era fascist party of the same name.

"It's like the end of a farce," said Francisco Espinosa, a historian who served on an advisory committee for the investigation. "The same people that participated actively in the failed coup of 23 February 1981 and in the repression under investigation are precisely the ones bringing the complaint, and the Supreme Court, instead of shelving it, gives the green light."

One of the especially bizarre by-products of the lawsuit, Mr Espinosa added, is that the ultra-right groups now have access to reams of testimony by victims' families. "There are families who have asked to withdraw their information before it falls into the hands of these people," Mr Espinosa said.

Mr Garzón is expected to be removed from his judicial post until the verdict – to the delight of the high-ranking members of the opposition Popular Party he had been investigating and the satisfaction of his critics, who sarcastically call him the "super judge". The conservative daily ABC described the saga as "the chronicle of a professional death foretold" – the logical result of many ego-driven investigations in which the judge supposedly "skidded on ice". "Garzón isn't going to get out of this one," the Falange leader, Jorge Garrido, gloated to El País.

Many in legal circles are outraged, however, by what they consider an orchestrated attempt by the judge's enemies to remove him from the bench. "If he is eventually suspended, it will be one of the most serious defeats for Spanish justice during the democracy," Carlos Jiménez Villarejo, a former state anti-corruption prosecutor, said. Mr Villarejo has organised Garzón tributes throughout the country, which have attracted legal scholars, artists and intellectuals such as Nobel winner José Saramago.

Mr Garzón has used Spain's "universal jurisdiction" principle to take on thorny – and diplomatically awkward – cases ranging from Argentina's "Dirty War" executions to tortures at Guantánamo Bay. But he embarked on the most perilous investigation of his career in October 2008 when he rattled the ghosts of Spain's bloody past. The crusading magistrate accused former dictator Francisco Franco and 34 of his former generals and ministers of crimes against humanity in relation to the 114,000 forced disappearances and ordered the exhumation of 19 mass graves.

At first, Mr Garzón was merely accused of opening old wounds and violating the so-called "pact of forgetting" that marked Spain's peaceful transition to democracy. Under pressure from state prosecutors, he eventually passed responsibility for opening the graves to provincial courts (who have largely ignored the matter). But last year, anger at the investigation morphed into concrete form: the accusation of "prevarication," or ruling with knowing disregard for the law.

Mr Garzón argued that amnesty laws do not apply to crimes against humanity, and several international human rights groups support that view. "We are truly scandalised," Giulia Tamayo, head of research for Amnesty International in Spain, said. "The UN Commission on Human Rights has repeatedly warned the Spanish government that amnesty laws were not applicable to crimes against humanity, but the Spanish authorities continue to hinder the victims' quest for justice and reparation. Now the only judge who wanted to abide by international law is being made to pay for it."

"No other country has gone as far as to prosecute a judge that tried to investigate such crimes," she added.

Mr Garzón's defence had lined up a cast of international legal experts, including Carla del Ponte, former chief prosecutor at the International Criminal Court, and Eugenio Raúl Zaffaronni, the Argentine judge who in 2005 voided the country's amnesty law. But the Supreme Court yesterday ruled that it would not admit their testimony. The defence is appealing against the decision.

But the people most upset are the families of the victims. Mr Silva's Association for the Recovery of Historic Memory has petitioned the court for the right to participate in the criminal proceedings. "There are many families who are depressed because of what is happening to Garzón," Mr Silva said. "When he is placed on the stand, thousands of men and women who are awaiting justice will sit beside him."

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