23 March 2010

Solidarity with Justice Baltasar Garzón

Paris-Geneva-Madrid, March 23, 2010. The Observatory for the Protection of Human

Rights Defenders, a joint programme of the International Federation for Human Rights

(FIDH) and the World Organisation Against Torture (OMCT), has completed a solidarity

mission in support of Justice Baltasar Garzón today in Spain.

The mission presented an open letter to Spanish judiciary authorities in solidarity with Justice

Baltasar Garzón. This initiative garnered the support of 59 human rights organisations in

many countries and over 150 jurists, lawyers, judges, academics and human rights

defenders worldwide.

The solidarity mission was composed of Mr. Louis Joinet, Honorary Attorney General to the

French Cassation Court, former Independent Expert for the United Nations and former UN

Special Rapporteur for the fight against impunity, Mr. Luis Guillermo Pérez Casas, FIDH

Secretary General, and Mr. Francisco Soberón, Director of the Association for Human

Rights (APRODEH - Peru).

The mission requested that the criminal investigation against Justice Baltasar Garzón for

prevarication be dropped, as Justice Garzón acted in accordance with international law. The

chargés de mission also requested that it be clearly established that the 1977 Amnesty Law

does not apply to crimes against humanity, and that the Spanish State conforms to its

obligation to investigate these crimes committed during the Franco dictatorship, in particular

enforced disappearances.

The letter that was presented shows the perplexity of the signatories regarding the decision

of the instructing magistrate of the Supreme Court’s Second Chamber of February 3, 2010

on the case against Justice Baltasar Garzón to continue the proceedings for prevarication,

on the grounds that the latter assumed competency to investigate crimes committed during

the Franco dictatorship. He is allegedly responsible of disregarding the 1977 Amnesty Law,

of violating the principle of non retroactivity of criminal law and the principle of legality and

prescription of criminal action.

The use of the offence of judicial prevarication against Justice Baltasar Garzón is

disconcerting as “indeed, a judicial officer has always some scope for discretion in the

implementation of law. If he does so in order to fulfil the State’s human rights obligations, his

acts cannot be considered as irrational or contrary to law, otherwise damaging the basic

principles of the administration of criminal justice concerning the investigation, prosecution,

reparation and prevention of all types of crimes, in particular crimes of international

character, as in the present case. the judicial body retains a margin of appreciation when

applying the law and, if it is applied with regard to the Human rights obligations of the State,

this should not be considered as unreasonable or against the law without incurring the risk of

damaging the fundamental basis of criminal law in the investigation, sanction, preparation

and prevention of all types of crimes and in particular those of an international nature”, as

declared the signatories of the letter.

The signatories also recalled the imperative need for Spain to acknowledge its duty towards

the victims of the Franco dictatorship as well as its human rights obligations under

international law.

The mission also took note of other complaints made against Justice Baltasar Garzón in

cases that question his interpretation of the law [1]. It is normal to question, annul, modify or

confirm decisions by ordinary means of appeal. On the other hand, resorting to the penal

persecution of a judge in order to sanction the different interpretations of the application of

the law creates an extremely dangerous precedent that affects the independence of judges,

an essential pillar of the implementation of justice in a democracy and a social State under

rule of law.

The mission notes with concern that such complaints tend to undermine the credibility of the

judge, his honour and his professional commitments, and leaves room for a possible

persecution orchestrated by interests distinct from those of seeking justice. The mission

asked how many justice officers were subject to criminal persecution in Spain, for alleged

prevarication, because they had different criteria for implementation of criminal law. The

complaints against Justice Garzón seem to show an unprecedented steadiness in their

admissibility, which leaves serious doubts as to the motivations on which the proceedings

against him are based.

In conclusion, the mission and the signatories expressed their recognition of Justice Baltasar

Garzón’s work in favour of victims’ rights to truth, justice and reparation, not only in Spain but

beyond its borders, thus becoming an important bastion and promoter of international

criminal law these the past years.

For further information, please contact:

· FIDH: Gael Grilhot / Karine Appy: + 33 1 43 55 25 18

· OMCT: Eric Sottas: + 41 22 809 49 39

Last Update 23 March 2010
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Footnotes

[1Decision ("auto") of January 28, 2010 following the complaint against Baltazar Garzón (Banco Santander) - case
n°00339/2009: prevarication and corruption; and dec ision ("auto") of February 25, 2010 following the complaint
against Baltazar Garzón (Gürtel case): prevarication for alleged illegal interception of communications

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