Tag Archives: dictatorship

Simplicity or Complexity: The Supporters and Critics of Garzón

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It’s been a while since I talked about Garzón and given that he continues to occupy large swathes of  newspaper print, I think it’s a good time to have a look at what’s happening at the moment.

Last Friday Garzón was suspended from office after the legal process was accelerated to lightning speed, or that’s how it seemed at least to everyone in Spain who has experienced the usual pace of bureaucracy and legal procedures in this country.

Garzón’s application for a transfer to The Hague to work as an assessor to the International Criminal Court was granted on Tuesday of this week. Unsurprisingly he has been accused of trying to escape from the investigation brought against him by the Falange and Manos Limpias (in addition to the other two enquiries, about Banco Santander and Gürtel scandal.) Given Garzón’s interest for pursuing high-profile international crimes, moving to The Hague is undoubtedly a good career move, especially when the atmosphere in Spain does not appear to be very conducive to such investigations. The transfer is, above all, a promotion.

I admit that I’m no expert in judicial matters, but it appears that no one is clear what is going to happen next in terms of the investigation. The whole investigation has been characterised by the very fact that it has been very uncharacteristic in terms of judicial procedure:

  • Garzón is being investigated for the crime of prevarication, after declaring himself competent to investigate crimes against humanity under Franco. Yet very soon afterwards he did a complete u-turn and closed the investigation.
  • Certain processes have been speeded up or slowed down according to, or so it appears, Varela’s whims.
  • Since 1997 Manos Limpias has brought 17 official complaints against Garzón but they were all dismissed until 2009.
  • The CGPC declared that five separate certificates would be needed to authorise Garzón’s transfer to The Hague. This was thrown out by Gómez Begresista for not being based on any legal grounds.

The debate about the crime of prevarication (I’m not going to enter into the legal debate around the Gürtel scandal or Banco Santander) has crystallised and can be categorised more or less neatly into two different camps, which unsurprisingly occupy the left and right of the political spectrum.

Those on the right believe that is not a political case, that Garzón is not being hunted down and that, above all, this is a clear, straightforward point of law. Did Garzón overstep the line? That’s all they ask. Yes or no? It’s an attempt to isolate the politics and the support for Garzón and to try and simplify the investigation as much as possible, neatly ignoring contradictions and conflicts of interest.

Those who support Garzón, on the other hand, see the investigation as a complex process replete with irregularities and uncharacteristic practices. For them, it’s a murky world full of conflicts of interest, egos and reputations, in which interpretation is key. Let’s not forget that Garzón, when deciding whether he could declare himself capable of investigating the Francoist crimes, was supported by other members of the Spanish Criminal Court (Audiencia Nacional.) Supporters and critics of Garzón cite the Amnesty Law, the Constitution and international law in order to defend their respective points of view. Rather than an overly simple yes or no, this case is about the interpretation of law: what it means and how it can be applied.

Whatever happens over the coming days, weeks and months, I’m sure that we’ll see more of this dialectic pattern of arguments in favour and against Garzón. Is it a simple case of right or wrong, yes or no, or a complicated mixture of different interests and readings of law? It’s clear that the Garzón case is a matter of interpretation in more than one sense, so I’ll leave it to you to decide.

*As a footnote to this entry, and as an extension of the simplicity-complexity dialectic, it’s worth considering the Gürtel scandal. The Popular Party are trying to paint it as a simple case in which a few people took advantage of the party to make pots of money. The critics, on the other hand, see it as far more complicated, with deep roots within the party and effects on the decisions and behaviour of the Popular Party.

Garzón in the dock? A turning point in Spanish democracy

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The foundation stone of the current democratic system is the Amnesty Law of 1977, a law which allowed a system to be built by concentrating on the future and trying to ignore the past. However this Amnesty law is outdated and is now creating the main sticking point with regards to the case against Garzón who is said to have not respected this law. Nevertheless it is the Amnesty Law which is preventing the true expression of democracy, freedom and human dignity and rights.

Despite what some might say, this isn’t about Garzón believing himself to be above the law. This is about finding out the truth about the past and whether or not war crimes were committed. His aggressive pushing at the boundaries of the law was applauded when it involved terrorism but now he has crossed an invisible line.

As always with law, the interpretation of individual laws is extremely important. According to the Supreme Court, Garzón has overstepped his responsibilities by declaring himself capable of pursuing the cause against crimes committed during the dictatorship. The issue is that the Amnesty Law is incompatible with both international law and the Spanish constitution (article 10.2). Is international law more important than national law? The Spanish judiciary were certainly delighted with Garzón’s pursuit of Pinochet and other international crimes. What has changed? Nothing, except the crimes being investigated happened in Spain. It’s clear that when the law is so contradictory that prevarication can be both argued and dismissed. Consequently, in essence this case is purely a political issue.

The Amnesty Law has already been criticised by the U.N. for its infringement of human rights. Such laws are useful for starting a new regime, but are not compatible with the long term development of a democracy (this is the experience of several countries in South America). What we have is an important foundation stone of the current regime which is incompatible with the development of the Spanish democracy. Something has got to give. Will it be the Amnesty Law, or will it be the democracy? What is certain is that this is a defining moment in the future course of history, memory and justice in Spain.

Listening to the Ghost

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I remember watching a programme about double jeopardy in Britain. A man was taken to court for the brutal rape of an elderly woman: she suffered numerous injuries and was left locked under the stairs for several days before she was rescued. The offender was freed without charge because of a legal issue: the DNA evidence that implicated the rapist had been traced through a DNA database and the man’s DNA sample (from a different offence) had been kept for longer than the legal maximum. The evidence was therefore invalid and the rapist was free to roam the streets (he couldn’t be retried with new evidence because of the double jeopardy law.)

I understand that the rule of law is paramount in society and that it must be respected in every case. However, it should not be possible for evidence that clearly demonstrates infringements of the law to be invalidated and thrown out of court because of the way in which they were obtained. I don’t want a CCTV society. I believe in freedom and civil liberties. But when corrupt politicians are conspiring against citizens and the judicial system in the Gürtel scandal, I think there should be an exception to the law. The use of this evidence is in the country’s interest. It’s completely legal to annul the use of the recordings, but that doesn’t make it right. Should the readily manipulated intricacies of law be above morality and ethics, above the interests of the people?

I haven’t finished with Garzón, and unfortunately neither have the Supreme Court nor the numerous forces arrayed against him. It’s clear that the illegalisation of the recordings is the start of the case against Garzón. It is the tip of the iceberg, the first toe dipped in the water to check the temperature, and the reaction of everyone else. Garzón will be prosecuted for everything he has tried to do recently. They’ll throw enough shit at him that some will inevitably stick and, using their usual tactics, they’ll use this as a lever to manipulate the rest of the case. Eventually all of his investigations will be completely annulled.

The last time I checked, Spain was a constitutional monarchy, not a dictatorship. But there are certain forces at work that reveal that Francoism is still the most powerful force in this country. The investigation of the past is being criminalised, in addition to the investigation of corruption. No questions can be asked.

The dead dictator’s spectre casts a long shadow and will continue to do so until light is shed on the truth of what happened.

Transition? What Transition?

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The Garzón fiasco continues to rumble on, with the politicians and judiciary both taking sides in the dispute.

The Supreme Court seem to have hatched a plan to try and destroy the investigation into the Gürtel Case for once and for all. Their plan is: remove Garzón and you remove the problem. Not only that, Garzón has also been digging up problems from the Francoist dictatorship that the right had long thought buried. Getting rid of Garzón would eliminate the risk of him trying to drag ex-members of Franco’s political class before the judge. Of course it would also mean deposing one of the most tenacious magistrates that Spain (and the world) has in pursuing terrorists and international war crimes. Some people, it seems, have a lot to lose.

Let’s not forget that the UN has made it clear that it has serious concerns about the way in which the dictatorship is being dealt with in Spain. It is in no way acceptable that a forward thinking country that brands itself strongly internationally should still have thousands of people buried in unmarked graves. It goes against human rights, religious belief and above all, human dignity. Countries in South America have been far better examples of how to reconcile a country’s present with its past, through the use of Truth and Reconciliation Commissions. In Spain, the only organisation is the grassroots NGO ‘Asociación para la Recuperación de la Memoria Histórica’, which is doing a fantastic job despite limited resources and even less political support.

Consequently, to prosecute Garzón is to strike a blow against all of those bodies lying in common graves. To accuse him of prevarication is a downright disgrace. If we can prosecute criminals from the Second World War, why can’t crimes from the dictatorship be denounced?

Here’s an idea that no one’s going to like. There never was a transition in Spain; it was simply a myth to pacify the population. Some of the mechanisms of power changed: elections, parliament, laws, government etc, but the true power, of the political class and above all, the judiciary, still lies in the same hands that is always has done. The real power has never changed hands. The rich Francoists are still rich. Fraga is still the ceremonial head of the PP. The current system is just a loosened version of the dictatorship with a new face. The money has never moved. The oligarchic system hasn’t changed.

The politicians have taken sides and it’s now time for the people to do so. 61% of the people surveyed by El País believe that Garzón is being hunted down specifically. It’s now time for the people to show their support on the streets, demonstrate their desire to see justice and the defence of human rights, and to reject the oligarchic system of hidden interests and alliances that damage Spain not only internally, but also on the international stage.