One of the world's most renowned judges has just landed on the other side of the bench. Spanish National Court magistrate Baltasar Garzón, best known for ordering former Chilean dictator Augusto Pinochet's arrest and extradition for crimes against humanity, was indicted Wednesday by his own country's Supreme Court. Charged with knowingly overreaching his jurisdiction when he opened an investigation into another dictator's crimes in this case, Spain's Francisco Franco Garzón has been suspended from his job while he awaits the start of his criminal trial.
The charges against Garzón date to 2008, when, at the request of victims' family members, he opened an investigation into the disappearance of an estimated 114,000 people during Spain's 1936-39 civil war and the early years of the dictatorship that followed. As legal justification for that probe, Garzón characterized the repressive actions of Franco and 34 of his officials as crimes against humanity. In a country where the recent past remains remarkably divisive, that is precisely where he ran into trouble.
"No judge can just jump over the laws of the country," says Miguel Bernad, secretary general of Manos Limpias (Clean Hands), the group that filed the complaint against Garzón for alleged prevarication or knowingly issuing erroneous judgments. "And in Spain, we have an amnesty law," he adds. Passed by the Spanish parliament in 1977, the amnesty law prevents the prosecution of perpetrators of crimes and their collaborators during the dictatorship, and is at the heart of a so-called "pact of silence" that eased the way for a peaceful transition to democracy.
The indictment reflects a lingering unwillingness to reopen the wounds of the civil war, which is evidenced by the fact that Manos Limpias was joined in its complaint by Franco's old fascist party, the Falange. Gónzalo Martínez-Fresneda, Garzón's lawyer, says a message has been sent to other magistrates that "they should not investigate the Franco regime's crimes or question the law of amnesty." If Garzón is convicted, he won't face any jail time but he could be removed from the bench for up to 20 years.
Yet the question of whether Garzón willfully ignored the amnesty law when he declared jurisdiction in the case is open to debate. "Numerous sources of international law suggest that amnesties for crimes against humanity are inconsistent with a State's obligations to protect human rights, including the right of access to justice," Carolyn Lamm, president of the American Bar Association, wrote in a public letter to Spain's Attorney General, an opponent of the prosecution. "It is difficult in light of these principles to view [Garzón's] ruling as legally indefensible, or as warranting criminal prosecution." Garzón's lawyer agrees. "The big question is why the Supreme Court isn't satisfied with simply annulling his decisions," he says. "Why do they have to treat him like a criminal?"
The answer to that question may have less to do with the divisiveness surrounding the memories of the Franco regime than with Garzón himself. The man the media routinely calls "superjudge" is perhaps the world's leading practitioner of universal jurisdiction, a legal principle that holds that in crimes of exceptional gravity, the right to render judgment is not limited to the country where the crime was committed. Garzón is seen as a crusading hero by many leftists for using the principle to order the arrest of Pinochet in London in 1998 (the U.K. later refused to extradite him) and to convict Argentine military officer Adolfo Scilingo of crimes against humanity in 2005. Last year, the judge also investigated six officials of President George W. Bush's administration for their alleged roles in what he called the "systematic program" of torture at Guantánamo Bay.
But among some conservative Spanish politicians and lawyers, Garzón's high profile is viewed with disdain. "He's not a typical judge," says Araceli Manjón-Cabeza, a professor of criminal law at Madrid's Cumplutense University and a colleague of Garzón's. "And the Spanish judiciary doesn't typically look well on magistrates who draw attention to themselves." That may be an understatement. There are currently two other pending cases against the judge in addition to the one involving the Franco investigation. Garzón is also being investigated for dismissing financial misappropriation charges against Emilio Botín, the director of Banco Santandar, after the bank sponsored a course at New York University in which the judge was a participant. He's also being investigated for his allegedly inappropriate ordering of wiretaps in a national corruption probe.
For Manjón-Cabeza, the sudden convergence of the three cases against Garzón raises eyebrows. "What a coincidence that someone who has been a bother for so long suddenly has three cases brought against him," she says. "This hunt has only been possible because his opponents have finally found a way to work together."