What’s going on with Baltasar Garzón is undoubtedly political. It is also somewhat complicated. I will try to explain.
He is a controversial figure who has trampled on many people’s toes. He famously arrested Pinochet but he is known in Spain for much more than that. He first came to prominence in the early 1990s when he investigated the GAL, a state terrorist group, and sent the Interior Minister, a top civil servant and a number of Guardia Civil officers (including a colonel) to prison. There was strong suspicion that Felipe González himself was involved but the evidence was not conclusive. While Garzón’s support now is coming from the left in general, and the whole affair has become a left-right battle, it is important to remember that PSOE as a party has no reason to love him. He has been a member of the Audiencia Nacional court, which deals with serious crime and he has an excellent record in investigating ETA and drug-smuggling.
There are three cases against him. The first sentence was announced yesterday; he has been suspended (for 11 years the maximum sentence) for bugging lawyers’ telephone conversations with prisoners. He is also charged with exceeding his powers in investigating the crimes of the Franco regime and with fiddling his expenses during a sabbatical year he spent at a university in the USA. These are private prosecutions brought by the Falange de las JONS (Franco’s movement which won 2,901 votes (0.01%) in November’s election) and a curious outfit called Manos Limpias (Clean Hands), which is often described as a far-right pseudo-trade-union. They are not brought by the state prosecutor, who has gone as far as his position allows to support Garzón. The case about Francoism has also been heard and is now awaiting sentence. By the rules it should have been the first to be heard but the order was changed.
On the face of it, it sounds bad that a judge was bugging conversations between prisoners and their lawyers, but a closer look reveals something rather different. Owing to the structure of the Spanish court system he could not have been involved in any cases involving those prisoners so he has a good point when he says that he was not interested in finding out what their defence would be. In fact, it was the lawyers, not the prisoners that he was interested in; he believed that they were receiving instructions about money-laundering operations from their clients in prison. This is all part of a huge corruption scandal involving the Partido Popular (PP), which won an absolute majority in last year’s general election. The leader of the conspiracy is in prison (where he complains about having to consort with common criminals) and Francisco Camps, the President of the Valencian Community, recently escaped a prison sentence by the skin of his teeth (by just one vote on the jury) on a charge of corruptly receiving suits. Naturally the PP is enraged that it should be investigated for corruption and is happy with the way that things have turned out. Spanish law allows such bugging in cases of terrorism. In other situations the law is unclear but bugging has been tolerated in cases of less importance than this one. There is also the point that the judge who heard the trial is the one who ‘instructed’ (investigated) it under the Roman law system. That should not be allowed.
Garzón has announced that he will appeal to the Constitutional Court and/or to the European Court of Human Rights in Strasbourg; as this is a private prosecution, in which the state prosecutor has explicitly declined to be involved, it is not clear how the Spanish State would defend itself there. Apart from the legal facts of the case there is another technical point, as a senior official of the State Garzón has the privileged status of aforado. That means that his case was heard immediately by the Supreme Court without meandering its way through the whole judicial system. But there is no appeal from the Supreme Court. During his trial Garzón asked if he would be allowed to appeal to another division of the Supreme Court. No-one can have been less surprised than himself when he was told that this was not possible because the legislators had made no such provision. The problem has been raised occasionally in the Spanish Parliament but there was never time for what appeared to be a relatively minor matter. However, the United Nations International Covenant on Civil and Political Rights says that there must always be some possibility of appeal. So, having put down a marker at his trial Garzón can now play the card of unfair process in the Constitutional Court (which is not the same as an appeal) or in Strasbourg.
This leads on to the real meat of the matter: his investigation of the crimes of Franco’s regime. The constitutional settlement of 1978 involved a pacto del olvido (agreement to forget). This was part of a huge compromise: in a nutshell, the right accepted democracy, including the Communist Party, and the left accepted a market economy and the monarchy rather than a return to the Republic. Then everyone forgot what had happened and moved on (as they say). This has always been a bit controversial but as the only possible alternative at the time was renewed civil war it has been generally accepted. But times change, and now there are very few people who remember the Civil War of 1936-39 and only those over 55 have any adult memory of Franco. For some time there has been pressure to investigate what went on and to open the mass graves that are known to exist. This itself is controversial as not everyone wants the graves of their ancestors opened; and in one spectacular cock-up the very well-known location of the grave containing the poet Lorca, whose family had strongly resisted opening it, turned out to be virgin earth! But apart from the graves, many people felt that it was time to investigate Franco’s crimes and Baltasar Garzón took it upon himself to do so. To say that this was a controversial decision is to put it mildly, and the uproar when he applied for a copy of Franco’s death certificate had to be heard to be believed; it was even louder than the shouting when Barça score a goal against Real Madrid. It was this rather than the corruption investigation that really brought the worms out of the woodwork and decided the far right to go for him. And with the enemies that he had inevitably made in the judiciary during his career they could find judges, not all Fascists by any means, to do the job. The judges doing this know that expelling a judge for investigating Franco will look bad – so, that is why they changed the order of the trials. He has now been expelled for listening in to lawyers’ conversations with their clients, and what happens in this case will appear to be of secondary importance. After all, he can’t be expelled twice.
But the defence is simple. Crimes against humanity are not subject to any statute of limitations and he is perfectly within his rights to investigate them. That seems to be beyond doubt, so much so that the prosecution, which, I repeat, is not backed by the State, seems malicious and perverse. The other day we saw the astonishing spectacle of victims of Francoism in court for the first time ever, appearing in the defence of the judge who was trying to investigate the crimes that they had suffered. There is another point. Crimes against humanity not only have no statute of limitations; they are also subject to universal jurisdiction, and courts in Argentina have been showing an interest in investigating them. That would be very embarrassing for Spain.
As for the third case, the expenses in New York, there seems to be no evidence at all and again there are errors of form in the way it has been handled. The whole business is totally political and is an absolute scandal that will do untold harm to Spain’s international reputation.