Washington D.C., Abril 26, 2010
The Center for Justice and International Law (CEJIL) is concerned by the decision of the magistrate of the Spanish Supreme Court on April 7, 2010, who prosecuted the judge of the Audiencia Nacional, Baltasar Garzón, for malfeasance. The Magistrate prosecuted Garzón for malfeansce because of his investigations of crimes against humanity and serious human rights violations committed during the Spanish Civil War and subsequent dictatorship. The decision is based among other reasons, on the statute of limitations and the existence of the amnesty law 46/1977 of October 15, 1977 that the judge considers applicable.
CEJIL considers that Spanish authorities can not criminalize legal actions that, with legal basis in international law, are aimed to investigate crimes against humanity, among which is the forced disappearance of hundreds of people in Spain.
While judges and prosecutors must apply internal law in force, they can not ignore international law and obligations assumed by the Spanish State, which also must be met by judicial officers. The Spanish Constitution establishes that the rules relating to fundamental rights shall be interpreted according to the Universal Declaration of Human Rights, international treaties, and conventions ratified by Spain.
In this regard, the international community, of which Spain is part, has recognized the applicability of crimes against humanity, the inability of these being covered by amnesty laws or other defenses of liability, and the right to truth which assists the victims’ families.
The UN General Assembly in Resolution 2583 of 1969 and 3074 of 1973 highlighted the importance of "rigorous investigation" of crimes against humanity. It states that they are under investigation, "wherever and whatever the date that have been committed "and that" persons against whom there is evidence of guilt in the commission of such crimes must be searched, arrested, prosecuted and, if guilty, punished." In his report on the establishment of the Special Court for Sierra Leone, UN Secretary General emphasized that "the United Nations consistently maintained the position that amnesty can not be granted in respect of international crimes such as genocide, crimes against humanity or other serious violations of international humanitarian law".
Similarly, under international law there is explicit recognition that enforced disappearance is a crime of continuing or permanent nature while the whereabouts of the disappeared person are not clarified. Therefore, it would not only be about crimes that have not been prescribed, but also about the Spanish state’s duty to investigate the facts and identify the culprits. This has been established by the European Court of Human Rights on Spain through the ratification in September 2009 of the International Convention for the Protection of All Persons from Enforced Disappearances, which contains similar principles.
However, the magistrate noted that Judge Baltasar Garzón continued with the criminal proceedings had been initiated despite "its own lack of competence and that the allegations were irrelevant at the time of initiating criminal proceedings." In addition, the judge is accused of attributed jurisdiction to investigate despite being aware that the subjects that might have been responsible may have died already.
It is noteworthy that enforced disappearances are being perpetuated at times by the complicity and concealment of persons who did not attend the initial detention of the victims, which may lead to criminal liability to the present.
Additionally, we believe that the interpretation of the judge ignores the right to the truth of victims about their missing relatives, while the fate of the victims has not been clarified. This right was recognized in Resolution 1463 of the Parliamentary Assembly of Council of Europe October 3, 2005, bound for Spain, and in the “Body of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity" issued by the Human Rights Commission of the UN in 1998.
In this sense, criminal investigations of serious human rights violations are considered key to the fulfillment of three objectives: the establishment of the facts, the establishment of individual responsibility, and the reparation of victims. Thus, the Inter-American Court of Human Rights has stated that "the right to know the truth of the relatives of victims of gross violations of human rights is part of the right of access to justice," and that the obligation to investigate is a relief. In similar terms Special Rapporteur on the Independence of Judges and Lawyers, has said that the "close relationship between the right to justice and the right to truth, because the legal mechanisms play a prominent role in ensuring to clarify the facts "(E/CN.4 / 2006 / 52 of January 23, 2006).
Moreover, even if the suspects had died in other jurisdictions, they would have conducted legal proceedings that may have among its purposes to fulfill the right to the truth of the victims. Thus, in Argentina there were carried out so-called "truth trials" which were intended only "to satisfy the obligation to investigate the fate of the disappeared between 1976 and 1983, discovering the truth of what happened and thus respond to the family and society "(Resolution 18/98 of the Federal Chamber of La Plata, April 21, 1998).
Based on the foregoing, we believe that the investigation by Judge Garzón to fight impunity for crimes against humanity and promote the pursuit of truth for the victims involved is supported by international law. Therefore, disputes over jurisdiction of court or potential conflicts between international and domestic law must be legally discussed in the process, but should not involve in any case the penalty of the judge.
Otherwise, Spain would be taking a step that, beyond contravening its international obligations, would be a setback for international justice, and would create a dangerous precedent in the fight against impunity for serious violations of human rights in Spain and around the world. Therefore, CEJIL calls the attention of Spanish authorities to reconsider its decision in this case.
The Center for Justice and International Law (CEJIL) is an advocacy of human rights in the Americas. CEJIL's main objective is to ensure full implementation of international human rights standards in the Member States of the Organization of American States (OAS), through the effective use of the Inter-american human rights system and other international protection mechanisms. CEJIL is a nongovernmental nonprofit with consultative status at the OAS, the Organization of the United Nations (UN) and observer status with the African Commission on Human Rights.