Sunday, April 25, 2010

Baltasar Garzón

The name may be familiar to British readers with long memories. He's the judge who tried to have Augusto Pinochet arrested in London, and almost confused the House of Lords into allowing his extradition.*

He is simply one judge at the High Court in Madrid, which has jurisdiction throughout Spain, and has held that position since 1988. He is an investigating magistrate, a figure that does not exist in UK legal tradition, and so acts to a certain extent as a prosecutor in his own court. These courts, like all courts in Spain, do not use juries, the judge determining the guilt or innocence of the accused. This sounds rather odd and open to abuse, but it's an old system that continues to work pretty well in democracy, and Spaniards are often very opposed to the idea of juries as an anomaly.

Garzón has been known for over twenty years, firstly for his investigations into international drug mafia, and into the GAL, a bloody and incompetent anti-terrorist plot hatched at a high level in the government of Felipe González. Several ministers and police chiefs went to prison but amazingly González himself managed to avoid being assciated with it. Garzón had earlier been became a minister of state in that same government, but left and returned to the High Court after a year.

In the 90's González's government attempted to attribute to itself jurisdiction over any act, anywhere in the world, that it considered criminal, if it involved Spanish citizens in any way, or if the national courts in the country concerned were not taking action. This led to attempts to arrest Pinochet, Henry Kissinger and other people. He quickly discovered that, although he was authorised to act by the law of Spain, other nations objected to him marching and trying to boss their own courts around. After a series of failures, the idea of universal jurisdiction was, in practice, discreetly abandoned. (Not that it's necessarily a bad idea, but, applied unilaterally, it was never going to work. Also, it was ideologically motivated, and there are to many contrasting interests for it to be taken seriously.)

He has, more recently, tried to investigate certain actions from the early years of Franco's government. There are various problems with this, so let's try to separate them out.

One problem is legal. He claims that he has authority to investigate because of, among other things, the Law of Historic Memory, passed by Zapatero in 2007. (A disgraceful piece of legislation whose purpose is to legislate certain truths which it would be illegal to question, to refight the Civil War, to polarize the country and to permanently stain the Popular Party with the blood of the victims of another era). Others suggest that, not only does it deny jurisdiction to his court, but that he was well aware of this when he opened the cases, and it is this that has brought him before the Supreme Court on a charge of 'prevaricación', basically abuse of position. The Supreme Court has determined that there is a case to answer. I am not remotely competent to discuss the legal aspects of the case, and I'm not going to try, but this is not simply a political persecution. (For what it's worth, I can't see him being convicted, and the case seems to be rather weak, but it's important to realize that the case does at least exist.)

Another problem is that he is an overtly political figure, a member of a hugely corrupt socialist government, and very selective in his choice of targets for prosecution. The PSOE orchestrated spontaneous displays of support for him yesterday in Madrid and some other places, which has had the effect of preventing any real discussion, in the press or in the bars, of the legal merits of the case, turning it into one more football match.

A related but distinct problem is historical. Much of the past was left undisturbed during the transition to democracy, and much of what happened during the years of dictatorship was explicitly made subject to immunity. The reason for this was to avoid damaging the transition with constant recriminations and attempts at revenge. Politicians and social activists are petty, short-sighted, vindictive people in general, and many would happily have jeopardised the chance to create a successful democracy if it meant they could get their own back on someone they disliked. The fact that Spain very quickly did become a stable and free country, which could very easily not have happened, is a testament to the judgement of the people who made that decision at the time. The fact that serious crimes may have gone unpunished is a small price to pay for the country we now have.

It may be fairly safe to attempt to revoke or ignore that immunity now, in the sense that it is not going to place that freedom and stabilty in danger, but it is politically motivated (at least on the part of the government) and rather pointless. And it leads those whose families were murdered by the communists, and there were many thousands of innocent victims seized and killed out of hand for the crimes of being religious, or middle-class, or owning land, or simply being disliked by the local republican commander, to ask why nobody seems to care about justice or historic memory for them.

It is divisive and intended to be. A weak leader is trying to fight old battles in the hope that the natural supporters of the left will group around him. Poor leadership, but good politics I suppose.

*The case against Pinochet isn't relevant here. He was undoubtedly brutal with those who opposed him, and the fact that the regime he overthrew had ceased to be democratic, and that he won a referendum on remaining in power, then left when he lost the next one, doesn't confer democratic legitimacy. On the other hand there are far better candidates for creative justice than Pinochet.

**Yes the photo is of yet another abandoned railway line. It's not an obsession, you know, not at all. I just find them fascinating and in their way, objects of great beauty.

No comments: