Judicial independence is a cornerstone of the rule of law, and an essential prerequisite to the protection of all human rights. In many parts of the globe the role of the judge and access to justice for victims and survivors of human rights violations is being restricted and undermined. The protection of human rights defenders, including judges, lawyers and civil society, is reflected across the litigation and research work of HRiP.

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Baltasar Garzón v. Spain

On 2 February 2016, Human Rights in Practice filed an individual petition before the United Nations Human Rights Committee (UNHRC) in the case of Baltasar Garzón v Spain. 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 UNHRC complaint, which is pending, alleges that prosecuting a judge for reasoned interpretations of the law represents a violation of multiple rights under the International Covenant on Civil and Political Rights (ICCPR), and an attack on fundamental principles of judicial independence.

Background to the Case

The complaint concerns the series of arbitrary investigations and criminal prosecutions that have been brought against Judge Garzón. 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, a second case was brought alleging criminal conduct in respect of 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, he was convicted, and suspended from office for 11 years. 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, violating the rights of the judge in question with a chilling effect on others.

Judge Garzón, represented by Helen Duffy/Human Rights in Practice, submitted a petition to the United Nations Human Rights Committee on 2 February 2016. The Committee is requested to find violations of numerous rights protected under the ICCPR (specifically Articles 2(3), 14, 15, 17, 19 and 26) and to urge measures to guarantee judicial independence and access to justice for victims of serious crimes, including those committed during the Franco era. The complaint is supported by three expert opinions submitted by persons of high international standing:

  • on international legal standards regarding judicial independence, presented by: 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 in relation to crimes against humanity, submitted by: 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,’ and its misapplication in this case, by Prof. Dr. Araceli Manjón-Cabeza Olmeda from Spain.