In 2010 Baltasar Garzón faced three trials, two on charges of corruption and one for bribery. Information has been gathered on the three lawsuits against Garzón both journalistically and legal.
The first was due to his investigation on the Gürtel case, the second for wanting to respond to victims of the Franco-era, and the last trial cases held in New York.
The Criminal Court of the Supreme Court accused him of the intervention of prison conversations of Gürtel defendants in relation to their lawyers. He was acquitted by the court with jurisdiction to investigate crimes and disappearances of the Franco-era and the third case was closed.
Judge Baltasar Garzón declared himself competent in October 2008 to investigate the disappearance of the victims of the Franco-era. In his order, the judge attributed a systematic plan of extermination of opponents and repression which ended with at least 114,266 missing to the dictator Francisco Franco and 34 other leaders who led the rebellion against the Government of the Republic. The judge framed these facts in the context of crimes against humanity.
With those involved dead there was no criminal liability, so the corresponding regional courts had to take care of these cases. Garzón was inhibited a month later in favour of the 62 courts according to the law.
The chief prosecutor of the High court, Javier Zaragoza, opposed to the openness of this process and accused Garzón of starting a “general cause” against Franco. The prosecutor requested the annulment of the investigation, calling it “legal nonsense.” Zaragoza considered these facts were prescribed and forgiven by the Amnesty Act of 1977.
A controversial investigating judge
But the right-wing union Manos Limpias, brought charges against Garzón for prevarication (knowingly issuing a decision contrary to law), claiming that he had exceeded his powers in the investigation of Franco. In May 2009, the Supreme Court agreed to hear this case and also admitted two other complaints of Freedom and Identity and Falange Española de las JONS. The Supreme also added the report of the chief prosecutor of the High court which had already expressed opposition to its arguments.
The investigating judge on the case was the Supreme Court judge Luciano Varela, a man critical of Garzón, who described him as a “star judge.” In 2008 the same judge Varela was also responsible for the complaint that Garzón allegedly charged $ 1.7 million for a few courses at the University of New York, but rejected the bribery and corruption offenses of which he was accused.
Manos Limpias is led by Miguel Bernad, a former leader of the far-right party New Force. This union has filed a number of complaints many of which have been rejected. Liberty and Identity, conservative ideology association also presented another complaint of alleged transgression. Finally, it joined the case against the judge, Falange Española de las JONS, which asked for 20 year disqualification for Garzón, arguing that he wanted to take charge of a case when he knew he was not competent.
Specifically the reports of enforced disappearances by family of Franco’s victims claim many Phalangists in executions and “removal” of the missing. The judge dismissed Falange on a formal matter on April 23. According to the investigating judge, Falange entered assessments that hindered the truth or falsity of the arguments. On October 18 the Supreme court upheld his dismissal of the cause.
The magistrate filed a motion calling the allegations “blatant retaliation.” He added: “To attribute senior officials of the Franco dictatorship with a crime against the nation’s top agencies and the form of government may be debatable, but in any case it is a case of corruption.”
Commencement of hearing
Garzón’s defence said that Garzón’s performance would have been unfair only “if he had forsaken the victims who demanded justice; if they had been denied the right to know; if he had refused to admit very serious criminal allegations.” For its part, the Office of the Supreme Court argued against the complaint and without understanding that in no case, a case of corruption would have occurred.
In April 2010 Baltasar Garzón challenged the magistrate Luciano Varela. The judge advised the right-wing organization Manos Limpias on their indictment. In an order, he suggested deleting certain parts of writing and even in one paragraph Garzón’s defence claimed that entire paragraphs had been plagiarized from the order of 3 February by the investigating Supreme judge. Gonzalo Martínez Fresneda, magistrate advocate spoke of bias in terms of Varela’s actions. The challenge was rejected and on 12 May the trial against Garzón began who was suspended by the GCJ, as required by law.
Evidence of support
Thousands of people attended the concentrations and demonstrations across Spain on April 24, 2010 to denounce the impunity of Franco and support Judge Baltasar Garzón, convened by reconnaissance platforms to the Historical Report
The largest rally was held in Madrid, where organizers recognized that attendance at the march that passed between Puerta de Alcalá and Puerta del Sol surpassed their most optimistic expectations “by far” (about 100,000 attendees were estimated). The rally ended with the reading of a manifesto by the filmmaker Pedro Almodóvar, the writer Almudena Grandes and the poet Marcos Ana, who spent 23 years in Franco jails.
The text, followed by a minute’s silence for all the victims of Franco, said “the consequences of a process that, in a democracy dirties’ the memory of the victims of Francoism, despises the pain of their children, their grandchildren and condemns aspirations for justice for hundreds of thousands of Spanish families.”
In Barcelona more than four thousand people filled the Plaza de Sant Jaume. The concentration convened in Seville was attended by the mother and sisters of Garzón, a native of Jaén, where also some three hundred people participated in an act of support to the judge that were repeated in places like Zaragoza, Murcia, Cáceres, Valladolid, León , Palma de Mallorca, Las Palmas, Santander, Valencia and Gijón, among others.
Acts supporting Garzón had the presence of numerous left-wing political parties such as Cayo Lara and Gaspar Llamazares (IU), Pedro Zerolo (PSOE) and Joan Herrera (ICV) – while they were harshly criticized by the PP, whose president, Mariano Rajoy, accused them of a “brutal and undemocratic” campaign against the Supreme Court.
The representative of the human rights organization Human Rights Watch (HRW) Reed Brody reported the “double standards” of the Spanish Justice, which investigated dictatorships such as Chile and Argentina but has indicted a judge for doing the same with Franco. 47 In the same vein, Ronald Gamarra, Executive Secretary of the National Human Rights Coordinator of Peru and the civil party lawyer in the trial of former President Alberto Fujimori convicted of crimes against humanity, expressed surprise “that countries do not want judges who rightly legitimize their Judicial Power, who are independent and who prefer honour and justice to the shameful past.”
While this was happening with international impact of grief and amazement, hundreds of citizens living in Latin America linked to independence organizations in the Basque Country and in many cases close to ETA ideology, terrorist organization against which the magistrate had acted for years, signed a document that rejected the Franco regime, but did not support Garzón, whom they accused of persecuting the Basques, Catalans, Galicians and the government of Venezuela.
The Supreme Court acquitted Baltasar Garzón on February 27, 2012. The judgment ruled that the magistrate incurred in excess of the interpretive rules, but that such conduct did not constitute the crime of corruption. It was also stressed that, by initiating the case against Franco, he sought to protect victims from injury. In the same vein, an editorial in The New York Times, dated February 5, 2012, stated that “Pursuing him threatens justice.”
Judge Baltasar Garzón uncovered the Gürtel network in February 2009 after a year of investigating. It was the largest pattern of corruption related to a political party, the PP, discovered to date. The object of the investigation lay in a network of companies that obtained lucrative contracts with governments ruled by the Partido Popular.
The magistrate sent the ringleader to prison, Francisco Correa, his cousin Antoine Sánchez and Pablo Crespo, former secretary of the PP organization in Galicia.
During the investigation at the request of the police, the magistrate authorized monitoring of the conversations involving the main players held in jail with different visitors received but stressed the need to preserve the rights of defence in any case. The fear of those in charge of the case was that those involved could be trying to hide millions of Euros.
The prosecuting attorney
Ignacio Peláez, former prosecutor on leave from the High court, formerly co-accused with Garzón and attorney Jose Luis Ulibarri, filed a complaint for these recordings. Ulibarri was never in prison, but Pelaez came to the prison to talk to others involved in Gürtel who were not his clients.
As a lawyer, Peláez had been tried with Alberto Cortina and Alberto Alcocer, (Los Albertos) due to a fake letter with which the businessmen sought to counter the accusation of the Urbanor case which was finally extinguished by prescription. However, the court ultimately could not find “sufficient evidence” to prove the falsity of the letter and was acquitted.
The prosecution, against
In February 2010, the Prosecutor of the Supreme Court described the complaint filed by attorney Ignacio Peláez as “legal fraud”, but the Supreme agreed to hear it anyway, despite the appeal in court against the admission of the complaint. The prosecution argued that the intervention of the recordings had at all times had the necessary judicial authorization and had also provided key data on money laundering activities of the accused. The investigating judge in the case was judge Alberto Jorge Barreiro.
Judge Garzón’s successor in the case in the High Court of Justice of Madrid, Antonio Pedreira, endorsed the intervention of these communications as well as the two anti-corruption prosecutors assigned to the case. The judge of the Criminal chamber of TSJM José Manuel Suarez Robledano was also in agreement with this action.
The democratic right of citizens
For defence lawyers in the Gürtel case the tracks were “monstrous” or “unconstitutional.” They accused him of having acted “moved by reasons of the State, which is the excuse of tyrants.”
Baltasar Garzón said in his closing argument that “the only reason of the State that I understand is the democratic right of citizens”, adding: “I assume every one of the decisions that were taken reflexively fulfilling the strictest legality.”
His defence lawyer, Francisco Baena Bocanegra, recalled that the wiretapping law was still to be developed and thus far all judges applied their discretion on how to apply these tapes under the law.
Eleven year disqualification
On February 8, 2012 the Court II of the Supreme Court informed the judge of the sentence of eleven years disqualification, a fine of 2,520 Euros and the order to pay the costs of prosecution. The judges Joaquín Giménez García, Andrés Martínez Arrieta, Miguel Colmenero Menéndez de Luarca, Francisco Monterde Ferrer, Juan Ramón Berdugo Gómez de la Torre, Luciano Varela Castro and Manuel Marchena Gómez unanimously signed this sentence.
In their opinion, having ordered the tapping, Garzón had revived “practices that in modern times are only found in totalitarian regimes where everything is considered valid for obtaining information that matters, or allegedly matters.” They also considered that the judge caused “a drastic and unjustified reduction of the right of defence” to the Gürtel lawyers. They said it was an “arbitrary act, devoid of reason, which dismantles the constitutional architecture of the criminal process and a fair trial.”
Baltasar Garzón appealed in May 2013 to the European Court of Human Rights on the grounds that he had been convicted of “a nonexistent offense” and that “his fundamental rights had been manifestly and grievously” violated. If successful, he could once again be a judge as the Strasbourg rulings are binding on Spain. In his writ of amparo he declared having been the object of “singular criminal treatment generating inadmissible legal uncertainty for judges and magistrates.” Also, the judges who condemned him “tailor made” the offense for him, since “in Spain there is no law regulating phone tapping.” Garzón termed the reasoning of the judgment against him as “contradictory, unreasonable and arbitrary” recalling that the prosecution supported the recordings. He added to the high European Court that he felt “the scapegoat for the ills and shortcomings of the Spanish laws.” Finally, he observed that the judgment violates “judicial independence gathered in the Constitution” as it was considered “a criminal act which it was not in this case” and Garzón merely “fulfilled his obligation without violating any law.”
The lawyers and José Luis Mazon and Antonio Panea filed a lawsuit against Baltasar Garzón in January 2010 in connection with courses organized by the King Juan Carlos Centre at New York University taught by the judge between 2005 and 2006 during the time who was on leave for studies. Garzón was accused of having profited from money provided for these courses by the Banco de Santander. The complainants stated that after his return from USA and return to the High court, one of the complaints he had affected several executives of Banco de Santander of misappropriation of the company SCI Gestión. On this basis they filed a case against Garzón for alleged crimes of corruption and bribery which became known as the Santander case.
Banco de Santander and the University of New York denied any payment from the bank. It was the university who through the King Juan Carlos ad Centre made the payments due for participation in Baltasar Garzón courses. This was confirmed by Garzón himself when he had to testify before the Supreme Court on April 15, 2010, clarifying that he had not received any amount from the financial institution. The judge was shown a letter to Emilio Botín endorsing the good work of the University. This letter addressed in familiar terms was interpreted by the complainants as a sign of familiarity. Garzón replied providing letters to other political or institutional leaders such as Mariano Rajoy or Felipe González where he signed off with a “hug” or “a big hug.”
Manuel Marchena, investigating judge of the case in Court II of the Supreme Criminal Court even ordered the Civil Guard to investigate the accounts, bank deposits, tax returns and holdings that Baltasar Garzón may have held with any entity. He wanted to know the amount received by Garzón from the University of New York during his leave. But the investigation of judge Marchena went further, investigating (and making public) personal accounts of Garzón’s relatives in an action that was criticized. Paradoxically, in January 2012 the Supreme Court itself filed a complaint by prescription against the president of Banco Santander, Emilio Botín, accused of bribery as he was accused of these alleged payments to judge Baltasar Garzón when he was at the University of New York. However, the case against Garzón for the same alleged facts, continued.
Finally, the complaint was filed by the investigating judge due to not finding evidence of extortion and considering that, in any event, the alleged crime of improper bribe would have been prescribed.