Prosecuting Judge who Challenged Amnesty Undermines Accountability
March 19, 2010
Garzón’s rigorous and principled interpretations of international law helped bring justice for grave human rights abuses in other countries. It is ironic that Spain is failing to live up to the standards that Garzón helped enforce abroad.
José Miguel Vivanco, Americas director at Human Rights Watch

(Washington, DC) – Spanish authorities should abide by the United Nations call for an end to its 1977 amnesty law rather than prosecuting a judge seeking accountability for past abuses, Human Rights Watch said today.

Judge Baltasar Garzón of Spain’s National Audience tribunal is currently under criminal investigation for looking into 22 alleged cases of illegal detention and forced disappearances involving more than 100,000 victims, committed between 1936 and 1951. Spanish courts have routinely closed investigations into abuses committed during the country’s civil war (1936-1939) and the dictatorship of General Francisco Franco (1939-1975) by invoking a 1977 amnesty law, which covers all crimes “of a political nature” committed prior to December 1976. The case against Garzón is based, among other factors, on the judge arguing that the amnesty law did not apply to crimes against humanity.

“Spanish courts have routinely failed to investigate allegations of horrendous crimes of the past, but are being surprisingly active in prosecuting a judge who tried to push for accountability,” said José Miguel Vivanco, Americas director at Human Rights Watch.

The Supreme Court is carrying out a criminal investigation into Garzón’s responsibility for breaching his duties as a judge (delito de prevaricación). A Supreme Court judge argued that Garzón had failed to apply the 1977 amnesty law to the forced disappearances under investigation, and that there is no basis in international law to hold that these crimes should not be subject to the amnesty law. An appeal presented by Garzón a few days later remains pending.

Under international law, governments have an obligation to provide victims of human rights abuses with an effective remedy – including justice, truth, and adequate reparations – after they suffer a violation. The International Covenant on Civil and Political Rights (ICCPR), which Spain ratified in 1977, specifically states that governments have an obligation “to ensure that any person whose rights or freedoms … are violated shall have an effective remedy.”

In 2008, the UN Human Rights Committee, in charge of monitoring compliance with the ICCPR, called on Spain to repeal the 1977 amnesty law and to ensure that domestic courts do not apply limitation periods to crimes against humanity. The European Court of Human Rights held in 2009, as a general principle, that an amnesty law is generally incompatible with states’ duty to investigate acts of torture or barbarity.

Human Rights Watch praised Garzón’s work in achieving accountability for atrocities around the world. Applying the principle of universal jurisdiction, Garzón issued an historic indictment against Chilean General Augusto Pinochet for the murder and torture of thousands, which led to Pinochet’s detention in London in 1998. His arrest was critical in prompting the Chilean justice system to prosecute past abuses. Garzón’s request to Mexico led to the extradition of Ricardo Miguel Cavallo, a former military official from Argentina implicated in atrocities during the country’s military dictatorship. Cavallo was extradited to Spain in 2003 on charges of genocide and terrorism, and was eventually sent to Argentina to be tried by Argentine courts.

“Garzón’s rigorous and principled interpretations of international law helped bring justice for grave human rights abuses in other countries,” said Vivanco. “It is ironic that Spain is failing to live up to the standards that Garzón helped enforce abroad.”