UN expert body notes with concern suspension of Judge Garzón for investigating enforced disappearances

GENEVA (25 May 2010) – The United Nations Working Group on Enforced or Involuntary Disappearances notes with concern the suspension of Judge Baltasar Garzón of Spain by the General Council of the Judiciary.

Judge Garzón, an investigative judge, has been subject to a criminal investigation by the Second Chamber of the Spanish Supreme Court that is competent to prosecute judges. The suspension is a step in a criminal process against judges in Spain. Judge Garzón might be sanctioned for knowingly exceeding his jurisdiction by admitting and investigating a series of complaints submitted in 2006 regarding more than 100,000 cases of enforced disappearances which reportedly occurred during the Spanish civil war and the Franco regime. These are allegedly inadmissible because of Spain’s 1977 Amnesty Law and the expiration of the statute of limitations.

Referring to the Declaration on the Protection of All Persons from Enforced Disappearance, the Working Group continually reminds States that they should refrain from making or enacting amnesty laws that would exempt the perpetrators of enforced disappearance from criminal proceedings and sanctions, and also prevent the proper application and implementation of other provisions of the Declaration.

“An amnesty law goes against the provisions of the Declaration when the State ends its obligations to investigate, prosecute and punish those responsible for disappearances, even where endorsed by a referendum or similar consultation procedure,” the human rights experts stressed, recalling the Working Group’s General Comment on article 18 of the Declaration.

The Working Group also emphasizes the right to truth which should be enjoyed by the families of the victims of enforced disappearances in Spain. Reconciliation between the State and the victims of enforced disappearances cannot happen without the clarification of each individual case.

The Working Group has also made it clear that an enforced disappearance is a continuing offence and a continuous human rights violation for as long as the fate or whereabouts of the victim remains unclarified. It considers that the State has the obligation to uncover the truth of the fate and whereabouts of persons who remain disappeared.

In its recent General Comment on Enforced Disappearance as a Continuous Crime, the Working Group noted that “Enforced disappearances are prototypical continuous acts. The act begins at the time of the abduction and extends for the whole period of time that the crime is not complete, that is to say until the State acknowledges the detention or releases information pertaining to the fate or whereabouts of the individual.” The General Comment also notes that: “As far as possible, tribunals and other institutions ought to give effect to enforced disappearance as a continuing crime or human right violation for as long as all elements of the crime or the violation are not complete.”

The Working Group on Enforced or Involuntary Disappearances was established by the UN Commission on Human Rights in 1980 to assist families in determining the fate or whereabouts of disappeared relatives. It endeavours to establish a channel of communication between the families and the Governments concerned, to ensure that individual cases are investigated, with the objective of clarifying the whereabouts of persons who, having disappeared, are placed outside the protection of the law. The Working Group continues to address cases of disappearances until they are resolved.

(*) The Working Group on Enforced or Involuntary Disappearances is comprised of five independent experts from all regions of the world. The Chairperson-Rapporteur is Mr. Jeremy Sarkin (South Africa), and the other Expert-Members are Mr. Santiago Corcuera (Mexico), Ms. Jasminka Dzumhur (Bosnia and Herzogovina), Mr. Olivier de Frouville (France) and Mr. Osman El-Hajjé (Lebanon)