Spain: UN experts express concern over implications of Judge Garzón case

GENEVA (8 February 2012) – A group of UN experts on independence of judges and enforced disappearances today expressed concern about the effect of the trial on the independence of Judge Baltasar Garzón in Spain, and on the process to investigate and deal with more than a hundred thousand cases of enforced disappearances which reportedly occurred during the Spanish civil war and the Franco regime.

“It is regrettable that Judge Garzón could be punished for opening an investigation which is in line with Spain’s obligations to investigate human rights violations in accordance with international law principles,” said the UN Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, and the five independent experts of the UN Working Group on Enforced or Involuntary Disappearances*.

According to reports, Judge Garzón is on trial in Spain in the so-called ‘memoria histórica’ case for knowingly exceeding his jurisdiction by admitting and investigating complaints related to crimes against humanity regarding cases of enforced disappearance that allegedly occurred between 1936 and 1951. The oral phase of the trial against Judge Garzón started on 24 January, and a week later the Supreme Court rejected the Prosecutor’s request to dismiss the case against Judge Garzón.

“To uphold the rule of law requires an unconditional commitment to justice and human rights. In the context of full respect for the independence and autonomy of the judiciary, supposed errors in judicial decisions should not be a reason for the removal of a judge and, even less, for a criminal proceeding to be launched” observed Ms. Knaul. “Autonomy in the interpretation of the law is a fundamental element in the role of a judge and for progress in human rights”, she stressed.

“No judge may fear to be independent in his or her functions,” the Special Rapporteur noted. “While judges have to be accountable in the exercise of their functions, all measures taken in this respect have to be in conformity with the norms and safeguards, including the Basic Principles on the Independence of the Judiciary.”

The Working Group on Enforced or Involuntary Disappearances stressed that “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.” Already in May 2010, the independent experts expressed concern about the suspension of Judge Garzón.

“An investigation should be able to be conducted for as long as the fate of the victim of enforced disappearance remains unclarified,” the human rights experts noted.
“Reconciliation between the State and the victims of enforced disappearances cannot happen without the clarification of each individual case, and an amnesty law should not allow an end to a State’s obligation to investigate, prosecute and punish those responsible for disappearances.”

“The right to truth should be enjoyed by the families of the victims of enforced disappearances in Spain,” underscored the Working Group on Enforced or Involuntary Disappearances.

Gabriela Knaul took up her functions as UN Special Rapporteur on the independence of judges and lawyers on 1 August 2009. In that capacity, she acts independently from any Government or organization. Ms. Knaul has a long-standing experience as a judge in Brazil and is an expert in criminal justice and the administration of judicial systems. Learn more: http://www2.ohchr.org/english/issues/judiciary/index.htm

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 and whereabouts of disappeared relatives. The panel is comprised of five independent experts from all regions of the world. The Chair-Rapporteur is Mr. Jeremy Sarkin (South Africa), the Vice-Chair is Mr. Olivier de Frouville (France) and the other members are Mr. Ariel Dulitzky (Argentina), Ms. Jasminka Dzumhur (Bosnia and Herzegovina), and Mr. Osman El-Hajjé (Lebanon). Learn more: http://www.ohchr.org/english/issues/disappear/index.htm

OHCHR Country page – Spain: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/ESIndex.aspx

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