BALTASAR GARZON
So, Judge Baltasar Garzon has been banned from acting as a judge in Spain for eleven years, having been convicted of overstepping his authority when he authorised the wire-tapping of conversations between detainees and their lawyers in the notorious (and on-going) Gurtel corruption case.
Garzon’s removal from the Spanish judiciary has been nothing if not controversial and has occurred amidst ferocious accusations that Judge Garzon is being victimised by Spain’s conservative establishment. This is not surprising, as the Gurtel case has strong political connotations.
In fact, the Gurtel case revolves around corruption within the Partido Popular political party, which is Spain’s ‘conservative’ party and the party that now holds majority power in Spain, under Prime Minister Mariano Rajoy. The corruption allegations centre on bribery, money laundering and tax evasion on an epic scale involving businessmen and PP politicians in Valencia, Madrid and elsewhere in Spain.
Although at the time of the corruption investigation by Judge Garzon (2007-2009) the PP party was the national opposition party in Spain, it did hold absolute power within the governments of a number of the 17 Regions of Spain. So, the allegations of corruption had real meaning, made all the more compelling by the fact that the PP party had lost the last two national elections to the PSOE party. With a further national election soon to be fought (November 2011), any adverse publicity that could damage the PP was extremely undesirable – and likely to offend deeply entrenched interests.
So, Judge Garzon, a notably left wing judge (an ex-PSOE minister), must have known that his appointment to investigate the Gurtel case was potentially a ‘poisoned chalice’. Indeed, the Gurtel case clearly required the greatest circumspection, given its ‘political’ nature, and Garzon must have recognised that his every move would be analysed, in case political capital could be made, one way or another, out of any mistake or revelation.
Nonetheless, Garzon ordered wire-taps to be made of conversations between the Gurtel case lawyers and their client detainees, despite this being permissible under Spanish law only in cases of terrorism. The reason Garzon made the decision appears to lie in the fact that he believed that the detainee’s lawyers were actively aiding their clients in hiding money that was relevant to the case.
In other words, Garzon seems to have believed that the detainees’ lawyers had moved from being ‘lawyers’ to the detainees – to ‘co-conspirators’ with the accused.
Well, few people would find Garzon’s actions either wise or, frankly, correct. Of all people he will have known of the absolute confidentiality of conversations between lawyers and their clients – and that this sanctity must not be broken (however tempting!). As a judge, he may even have been under a duty to ensure that it did not happen.
So, however regrettable, it is difficult to believe that Garzon did not, directly and knowingly, transgress Spanish law and the human rights of those involved. Certainly, this is the conclusion that the seven Spanish Supreme Court judges adjudicating his case seem to have come to, thus Garzon’s conviction and banishment as a judge.
My own feeling is that Garzon fell into the trap of believing that the ‘ends justify the means’ – which is a very odd line for a famed human rights lawyer to take. After all, the logical next steps are waterboarding, followed by something like Guantanamo Bay – actions that no true democracy in the world should ever countenance. Irrespective of the merits of a case.
Judge Garzon’s problems have not finished, however, with his conviction for ordering wire-tapping in the Gurtel case. Indeed, he is soon set to stand trial on a matter of far greater emotional importance to the Spanish people. This relates to his attempt in 2008 to investigate alleged atrocities during the time of the Spanish Civil War (1936-39) and the dictatorship (1939-75) of General Francisco Franco. He did this despite an Amnesty passed in 1977 that specifically forbade any investigations into political crimes that occurred prior to 1976.
Furthermore, Judge Garzon faces a further trial – which centres upon why he dropped a case against a Santander director in 2006, following payment by the bank for courses he gave in New York in 2005 and 2006.
What are you to make of Judge Garzon- so famous for his issue of an international arrest warrant in 1998 against General Pinochet (Chile’s dictator between 1973 – 78)?
Well, it is hard not to come to the conclusion that Garzon is something of a ‘loose cannon’.
Regardless of whether Garzon was ‘right’ about the lawyers in the Gurtel case or the need to account for the atrocities of the Franco era, he had been appointed by the Spanish state to act as a judge and judges administer state law – not make it. That is something that is done by elected representatives of the people, within a legislature, and is something that Garzon seems to have forgotten.
Indeed, I have a horrid feeling that Garzon (subject to being found not guilty of corruption in the Santander case) is a maverick judge of probably sound sentiments – who has been unhinged by his own arrogance. The latter I think has been his downfall and there have been plenty of powerful people on the right of Spanish politics who have been waiting eagerly for it to happen…
Nick Snelling – Culture Spain
FURTHER RELEVANT INFORMATION ABOUT CORRUPTION IN SPAIN
Valencia debt and outrageous corruption
Corruption in Spain – the King’s finances revealed
Corruption in Spain – still a problem
Can I totally disagree. Everyone in Valencia knows that the lawyers in this case are just as involved as the accused. They are therefore co-conspirators. This “secreto a voces” is total common knowledge even among the few left who support Camps. The recordings were approved by other judges and police investigators too because they knew the lawyers were involved in the laundering of the money from Gurtel so if I were really paranoid I would suggest he has been set up.
Garzón has investigated and tried PSOE members, ETA members, foreign presidents and more. Where he has a pending issue is with PP members, the most corrupt party in Spain if we take open corruption cases as the reference point. It is no surprise whatsoever that he hasn’t been able to successfully finish those cases because the heavily Fascist leaning heads of the judiciary (Ex members of the Falange under Franco) are hugely implicated in the corruption scandals and so they are only protecting their own.
My hunch is that Garzón will win in the European Court of Human Rights but it will be an illusory victory because to all intents and purposes he has been hung out to dry and will never practice again in Spain.
A real pity for anyone who believes in justice.
The line “everybody [in Valencia] knows” is not one I can accept as the legal reason for doing anything. I don’t know the details of the case but I do know that “everybody knows” and the implication of taking shortcuts or dispensing with due process that the phrase suggests, will not do in any country that claims to have a justice system worthy of the name.
It may be that what “everybody knows” is in fact the case. But let it be demonstrated in the courts to be so. If the entire Spanish justice system is so corrupt and the process of proving what “everybody knows” is so distorted as to bring about the result that one or other party seeks, but without due process – well, Spain is in a very dangerous state.
Remember the tragic case of the man lynched – killed – in UK some years ago because the “everybody knows” tendency amongst his neighbours “knew” he was a paedophile? In fact he was a paedriatic nurse
It may be mountainously tempting for one and all to agree that “everybody knows …” but it has no place in a justice system. I go with mon ami mate French Franck, “I donno – nobody know” until proved otherwise.
Graham and Chris, thank you for your valued comments. I think Graham and I are in total agreement about one thing and that is: the extent of the corruption within Spain, which seems to cross all political boundaries, is unjust and not acceptable within a First World European nation.
With regard to Judge Garzon, as Chris states, the fact that ‘everybody knows’ something is one thing but proving it to be true quite another, with the proving bit always a problem for prosecutors and the police. Indeed, human rights invariably get in the way of the totally ‘effective’ investigation that would be conducted by a dictatorship.
Now, Garzon may have been correct in his assumption relating to the lawyers of the detainees but he is constrained (thankfully) by democratically passed laws restricting the parameters of his powers. He is, after all, an appointed servant of the state whose powers have been granted to him by the populace on strictly defined terms. If he or any other judge or investigator steps outside those powers than he is doing something illegal – and as a judge you must presume he is doing this knowingly. That is not acceptable, however distinguished a person’s record.
Indeed, as I have said, as a judge, Garzon should be under a duty to ensure that any investigation is undertaken within the proscribed rules, however inconvenient. If he believes that the law is inadequate then he should attempt to change the law through the democratic process i.e. with the express approval of the population and the legislature. That is the essence of democracy and something that we should all insist upon – whilst never allowing any single person to change laws arbitrarily or transgress them with impunity. To quote a worthy cliché: ‘no-one should ever be above the law’…
Man, I’ve actually started to leave a comment here a couple of times, and then stopped for not knowing where to begin and how to keep my comments brief. Let’s just say that I second Graham’s opening about “totally disagreeing”, though maybe I would put forward different arguments. For one, I think it is inappropriate here to reduce this case to a profile of personality on Garzón. There are clearly bigger issues and movements at work. (Also complicated questions about the institutional structure of law in Spain, which has certain institutions that don’t face review, and whose judges are appointed under heavily partisan pretexts.) So I think the “loose canon” description is unfairly dismissive of Garzón’s impressive career. He is obviously an activist judge, for better and for worse. But putting aside what “everybody knows” about the politics of the case, in the international legal studies community the case is alarming because in most “First World European nations” it is considered a measure of last resort to disbar judges based on their jurisprudence, particularly in a court of last resort where there is no opportunity to appeal. (The normal reproach is to overturn their legal reasoning in subsequent cases.) This is because disbarring a judge is effectively silencing the law… One should avoid being naive about (post hoc ergo propter hoc) clear distinctions between “administering” and “making” law. Interpretation is “the life of the law”, again for better or for worse.
In terms of the political economy of the case, since legal sentences send messages, I think it is the _wrong_ message to send that Garzón, a judge, is the first and (I believe) so far only person to be convicted for the Caso Gürtel. In other words, the message that it is more likely that activist judges will face reprobation for overstepping the law than corrupt politicians. (I should add, nothing irritates me more than expats talking about corruption in Spain… what opportunity for stereotyping and clichés. Without arguing the point of whether it is true or not that corruption is worse here (“if I were a fly on the wall…” in London or DC), I think it is more honest to say that corruption happens everywhere, but some countries/cultures have better institutions for reddressing and countering it than others.)
Something I also think is missing from this entry and discussion is a bit of circumspection about the fixity of the law when weighing it against matters justice, particularly on the Amnesty passed in 1977. (I’d say this should be a red flag moment for outsiders talking about insider Spain politics and law.) Tomorrow, February 23rd, is the anniversary of the “golpe de estado” in 1981, only a few years after this Amnesty was passed, and evidence of how fragile democracy was perceived to be at that time. Seen from the distance of today, it is clear to many that that Amnesty was bought (or stolen) from the victims of the dictatorship under circumstances when they were afraid the new democracy might collapse. So here is a space for legal scholars to ask the hard question… one I wish I could pose in the form of a nice quote I heard the other day from Montesquieu, but I can’t find it. The general point of his quote was that one should not confuse laws with justice. While the Amnesty may in fact be law, it is probably not just, certainly not to those who still today greave for their lost ones and have never (until this Garzón case) had their day in court. (And if you need proof that it could have been done differently, i direct you to my entry on the Spanish Civil War where I briefly discuss this question towards the end: http://nothemingwaysspain.blogspot.com/2011/11/two-spains-many-spains-spanish-civil.html.) If anything, this is one area where Garzón’s activism was most clearly on the side of justice. And this is why he will probably not be convicted of that charge… because it would be too obvious an affront to everyone’s sense of justice. So his opponents settle for the easier, technical charge on the Caso Gürtel. (Once neutralized, why risk angering your opponent?) All I have to say on that is, does the punishment fit the crime? (Do I need to give my answer? I’m sure it’s obvious.)
Oh, and please avoid inflammatory reducio ad absurdum: “the logical next steps are waterboarding, followed by something like Guantanamo Bay”. It is enough to say that Garzón, in your opinion, overstepped his powers (of interpretation) on wiretapping, an invasion of privacy. You do not need to make the absurd slippery slope claim that this will somehow lead us to a violently oppressive police state. Perhaps it was a crude attempt at irony, since if anything it was the very people Garzón would have investigated, to be clear, those in the Franco regime, who had once used torture and threats of death to interrogate their accused. Again, these are touchy subjects and I think it is important for outsiders like us to wade through them carefully.
So I failed to keep it short. I also failed to keep it light and generous, which in these forums is usually the best tac, but which would have required adding another two paragraphs, I’m sure. Please don’t take these comments in too hostile a light. I see where you’re going with this post, I just personally think you’ve miss the mark.
Excellent comments – and you do not need to be brief… The subject is of very great importance and goes to the the root of Spanish jurisprudence. Indeed, there are certainly very good grounds, as you state, to consider the higher judges to be partisan. If this is the case then Spanish justice may be in a far worse position than many people realise.