What is the procedure in the High court before a complaint of torture?
The duty of a judge is to prevent torture occurring when someone is held on charges of terrorism. If before a Judge of the High Court the prisoner files a complaint of torture, according to the Organic Law of Judicial Power and the Law of Criminal Procedure, the judge has no jurisdiction to investigate this complaint. What he/she should do according to the Law is:
• Hear the complaint.
• Collect the evidence or demand.
• Transfer to the competent authority where it occurred.
Allegations of torture must be investigated by the judge of the place where they have committed.
One of the most important contributions against torture was made by Baltasar Garzón when he established a number of procedural safeguards for those arrested for terrorism that the UN rapporteur called “Garzón Protocol.”
In December 2006, Baltasar Garzón included a process to strengthen safeguards for detainees incommunicado for investigations into terrorist offenses, according to international standards of UN and human rights agencies at that time not assumed in Spain. This was known as Garzón Protocol.
The procedure included:
• The video recording of the person arrested at all times during police custody, excluding the areas of privacy and with the recording made available to the court.
• The ability to be identified whenever necessary, by a personal physician, accompanied by the coroner on duty at the service of the High Court.
• The duty of police officers to notify the family of the person arrested of his/her arrest and whereabouts.
• The duty of police officers to inform the court of any incident occurring during detention and on the situation of detainees every 12 hours whenever necessary.
This is without prejudice to the court and the public prosecutor being able to appear at the place of detention in order to understand the situation of detainees at any time.
Currently, this process, known nationally and internationally as “Garzón Protocol” is also being implemented by Central Magistrates’ Courts and some sections of the Criminal Court of the High Court, urging the spread of the protocol as it is not applied by all the judges of the High Court. It has been highlighted as good practice for the prevention of torture by various international human rights organizations.
It should be mentioned among others, the Report of the Special Rapporteur of the United Nations on the question of torture on monitoring the recommendations made following the visit to Spain (7th Session of the Human Rights Council) and the Test for Regular Report V in Spain for the United Nations Committee against Torture (sessions on 12 and 13 November 2009).
For Baltasar Garzón, the adoption of these measures meant bringing claims before the General Legal Council for “being pro-terrorist” and complaints to the College of coroners. He even opened a disciplinary inquiry which was eventually shelved.
Terra Lliure. ECHR judgment
Terra Lliure is the name of a Catalan separatist armed terrorist organization founded in 1978 which dissolved itself in 1991 abandoning the armed struggle. Its credits include over 200 attacks, with five fatalities (four of them members of the organization) and dozens wounded.
During the time they were active, the State Security Forces arrived to arrest 300 people connected to the organization. In 1992, Baltasar Garzón led an operation related to Terra Lliure from the Central Court of Instruction No. 5 of the High Court in which 15 people were detained. In 1995 six of the detainees were sentenced by the Court to prison terms of one to 10 years for belonging to or collaborating with a terrorist group and four others were acquitted.
In some cases, the militants entered the Republican Left of Catalonia that required them to explicitly renounce violence. Many of them participated in Catalan politics and even at state level. They became part of the Catalan tripartite government.
Gradually, prisoners of the organization were released from jail after being pardoned or serving their sentence. In 1996 there was no longer any member of Terra Lliure in prison.
Following the conviction of the judiciary disqualification of the judge Baltasar Garzón some former members and associates of Terra Lliure suggested that in 1992 this judge did not investigate torture inflicted on prisoners of this organization. This statement is false.
On February 25, 2012, the newspaper El País told it this way: “From the outset, the detainees alleged physical and psychological torture while in Catalonia and from the Directorate General of the Civil Guard in Madrid. Several courts rejected allegations as they were unable to find evidence of abuse and the case ended up in the European Court of Human Rights which in Case 2004/65, of 2 November condemned the Spanish State for “the absence of an effective official investigation into these allegations” of abuse.
From that ruling, which awarded damages of 20,009 Euros plus interest to each applicant (8,000 in moral damages and 12,009 for costs and expenses), the false beliefs began circulating that a simple perusal of the judgment denies altogether.
THE ECHR judgment
The judgment of the European Court of Human Rights indicates in point 91 that on July 14, 1992, Baltasar Garzón urged the coroner to consider the plaintiffs and “submit a report exhaustively recounting the facts of the case and specifying where and how medical examinations had taken place, if they had been attended by persons other than the defendants and the coroner, if he had asked the suspects who had been abused” and “what was the frequency of tests and whether they had found any signs of abuse.”
The forensic report, dated July 21, explains that “detainees were examined every day and were again after transfer to the cells of the High Court,” that each one was asked if they had been mistreated, each visit detailed and stated that one of them self-harmed and was taken to a hospital.
In point 149 of the judgment, the applicants claim that the forensic report given to Garzón speaks only of physical abuse and not psychological abuse and lawyers themselves are affected, those who remember that the High Court judge “declined jurisdiction in favour of a court of ordinary instruction.” Garzón did nothing but enforce the law, because he was not up to investigate the allegations.
None of the 42 pages of the ECHR judgment make the slightest reproach regarding Garzón’s performance in relation to allegations of abuse. Nor is there any reproach against the judges of Barcelona and Girona who the detainees testified before, prior to being transferred to Madrid, and where abuse was reported from the start. And if there is no reproach against anyone it is because none of the three were competent to investigate.
Indeed, from the disqualification of Garzón allegations of ill-treatment continued and ended up in the Court of Instruction 22 in Madrid, where they accumulated also from the courts of Barcelona and Girona (point 155 of the ECHR judgment). It is this ordinary court of Madrid that on three occasions filed complaints of torture without a thorough investigation as recounted by the ECHR (paragraph 159).
And it was also the Provincial Court of Madrid and not judge Garzón that confirmed the filing of such complaints on three occasions.
Plaintiffs also attended the Constitutional Court, which denied the writ of amparo in 1994. The same occurred before the European Commission of Human Rights, which on 28 November 1996 dismissed the complaint, having not previously exhausted internal resources.
• Download PDF ECHR judgment 2004
Guantanamo is an extreme case of alleged attempted attack on judicial independence. This is Baltasar Garzón’s investigation for crimes against humanity in the form of torture against U.S. officials for inhumane treatment and crimes within that category at the military prison at Guantanamo Bay.
Via publication of Wiki leaks, the alleged pressure from the U.S. embassy in Madrid against the examining judge was made known so that the case was filed. Such manoeuvres were ineffective as the case continued at the decision of the judge and the Court of Appeal.
In April 2009, as High Court Judge, Baltasar Garzón opened a case to investigate the possible “perpetrators, inductors, necessary collaborators and accomplices” to crimes of torture committed at Guantanamo Bay. The proceedings on Guantanamo Bay began with allegations of Hamed Abderrahman Ahmed, Lahcen Ikassrien, Jamiel Abdul Latif al Banna and Omar Deghayes, who after passing through Guantanamo Bay assured Garzón that they had been tortured.
This legal action in the United States sparked an enormous climate of concern among the highest levels of government, as Wiki leaks revealed in November 2010 and the media gathered. Garzón was considered dangerous to U.S. interests and as denounced by Wiki leaks, the formula was sought for him not to continue his investigations.
The truth is that while he was present in the court he kept the investigation alive against all odds. Until he was separated from the High Court one of the procedures that Garzón maintained solid and urgent was the result of torture at Guantanamo Bay.
False claims. Counterclaims that have circulated on the Internet in the sense that the judge ignored these allegations of torture by these people, are radically false.