Tuesday
September 2, 2014

Baltasar Garzón. Suspended judge

Sunday, March 30, 2014

‘Spain is the only country in Europe that has done nothing to preserve memory’

By Luciana Bertoia
Herald Staff
Baltasar Garzón is for many human rights activists one of those men who made the trials for crimes committed during the last Argentine dictatorship possible due to his efforts to judge those crimes in Spain during the nineties, when the amnesty laws prevented the military from being taken to court. In Spain, relatives of the victims of the Francisco Franco dictatorship saw in him their only hope for justice. But he was suspended in 2012 and his investigation was stalled.

In good terms with the Kirchnerite administration, Garzón was invited by the Congress and the Justice and Human Rights Ministry to become a top adviser in human rights issues. He currently heads the International Centre for Promotion of Human Rights (CIPDH in Spanish) sponsored by UNESCO in Buenos Aires City. In his office, Garzón kindly welcomed the Herald to discuss the situation in Spain, the ongoing trials against repressors in Argentina and the chance of regaining his bench at the National Court in Madrid.

Why did you accept to head the centre?

In 2005, when I first met Néstor Kirchner, he talked about it. He wanted to create a human rights centre for the UNASUR bloc. In 2009, they passed a law to create the centre but it was not started until 2012. Then I was suspended in Spain for the investigations on the Franco-era crimes and I started working as an adviser of the International Criminal Court’s prosecutor and taking part in a peace-keeping mission in Colombia and I decided it was time to start cooperating.

Colombian President Juan Manuel Santos also suggested you to become his human rights adviser. Why didn’t you accept his proposal?

He asked me to go to Colombia and started working in a OAS mission. I had been working there for a year and a half. I have been involved in investigation projects led by the Attorney General to create new schemes to pursue organized crime.

How can you define the situation in Colombia?

There is a huge problem linked to political violence due to the guerrillas, FARC and ELN. Santos made great progress with the negotiations held in Havana to put an end to 40 years of violence. But any negotiation process must be consented to by victims.

In Spain, a reform sponsored by the Mariano Rajoy administration puts the universal jurisdiction principle at risk. Can that reform be explained only by diplomatic pressure by China?

That has been the immediate cause but this has more profound roots. The Popular Party (PP) has never believed in the universal jurisdiction principle. They didn’t when we were investigating the Argentine case or when I ordered the arrest of (Augusto) Pinochet in London. They did not obstruct the arrest warrants because they did not have any legal tool. The Conservative party has never believed that the universal jurisdiction principle is an instrument to preserve peace and justice. They have always paid attention to their economic or political interest. They don’t want foreign relations to be affected by a handful of judges who think they can act beyond the borders. But what we have been doing was nothing else but to apply the Spanish Constitution and the international conventions ratified by Spain.

And why do you think Spain has ratified those conventions then?

I think they signed some documents struck by their conscience. After the second World War, many conventions against torture and forced disappearances were approved but when somebody tries to enforce them, they say: “No, this is disturbing.” I believe that everyone in Spain is going to suffer for this decision by the PP because it does not only include crimes against humanity, genocide or war crimes. It also involves other offences.

For example?

Drug trafficking, terrorism, human trafficking, defilement of minors. The universal jurisdiction principle can be invoked to judge those offences. I think they haven’t realized the impact of the PP reform, which infringes all the human rights conventions signed by Spain. Even when the Socialist Party (PSOE in Spanish) was in office, the most conservative judges banned any investigation of the crimes committed during the Franco era. The PP suspended the Historic Memory Law, alleging that there were not enough funds. Everyone in the UN, in the EU says that Spain cannot keep this pace. There are 150,000 victims who are still seeking justice and truth.

The only investigation in progress for crimes committed during Franco’s dictatorship takes place in Argentina?

This is the same story but the other way around. We applied the principle to investigate the last Argentine dictatorship’s crimes, now Argentina is applying it to investigate the Franco era ones. This is what many politicians don’t understand. In spite of the obstacles, there will always be a country willing to enforce the victims’ rights. In 1996, it was Spain.

Months ago, Judge María Servini de Cubría requested the extradition of two Franco era torturers from Spain. What decision can be expected?

I don’t think it is going to catch on. For Spain and its Supreme Court, there is no crime to judge because they take into account the 1977 Amnesty Law, although we have been filing several complaints. We are not demanding its derogation or nullification, only an interpretation according to international law, which would exclude these kinds of crimes from those included in an amnesty law. Then, they are Spanish. If Spain agrees with the investigation, the country would be able to claim the investigation as the alleged perpetrators are there. But if they do so, they will reach the conclusion that their crimes are included in the Amnesty Law. Finally, there is no political will. Unfortunately, I don’t think we will obtain a favourable result.

What can be done then?

We’ll have to appeal that decision. We’ll have to file a complaint before the constitutional court and the European Court of Human Rights (ECHR) and they will have to decide if these crimes have to be investigated or not.

You filed a complaint for your suspension before the ECHR. Did the court admit it?

I filed two complaints. One regarding the suspension in the Franco era case because that suspension negatively affected the Judiciary’s independence and the principle of free interpretation of the law. I was acquitted for that case but for two years the victims were deprived of a judicial investigation. Then, I filed a complaint regarding the corruption case (phone tapping against PP leaders). Tapping was not included as a crime in the Spanish Penal Code. They created that offence to judge me. I don’t want to make further reference because I respect the Spanish legal system.

If you obtained a favourable ruling, would you go back to your post in the Spanish National Court?

In fact, once the sanction is extinguished, I can go back. But if the sentence was annulled, I would go back to my post. I will take office and then make a decision I am really involved in helping the victims. It is shameful that 75 years after the Civil War, their victimhood is not acknowledged. Spain is the only country in Europe that has done nothing to preserve memory, only comparable with the Armenian genocide. Franco’s regime is still exalted nowadays.

Do you think that cases about business complicity with repression in Argentina can move forward?

I think there should have never been a difference in those cases. We are talking about a civilian-military dictatorship. There were civilians and military officers taking part in it. There should not be a distinction between violent actions against life and the interest that lies beneath. The reasons for attacking somebody else can be ideological, due to hatred but also economic. We need to know what those businesspeople did, what the origin of those assets is. If they have an illicit origin, those assets are unclean.

Can those assets be seized following a judicial order?

Definitely.

Can that happen with Papel Prensa newsprint manufacturer?

I don’t want to refer to any case in particular. But it is a rule. If in a criminal investigation there is circumstancial evidence, the judge has an obligation to take this decision.

@LucianaBertoia

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