The still unhealed wounds of the Spanish civil war are being publically opened once again through the divisive court case of judge Baltasar Garzón. The highly divisive figure is famous for having issued international warrants of arrest for Chile’s once dictator, Augusto Pinchot, in 1998 and Argentinean ex-naval officer, Adolfo Scilingo, in 2005, both for crimes against humanity, with only the latter resulting in conviction. His résumé also speaks of cases against the PSOE (the current centre of left party in opposition) for the organization of illegal death squads established to assassinate the Basque separatists of ETA in the early 1990s, as well as corruption scandals against leading members of the conservative Popular Party, which is currently in power.

Garzón is facing trial on three separate accounts, but arguably the most polemical of the three is the inquiry he issued into the “crimes against humanity” committed in the Franco era. The original investigation sought answers and prosecutions for the death of some 144,000 unidentified victims. The generals deemed responsible, including Franco himself, were all deceased but the judge believed that such a measure was necessary to deal with a past that conveniently had been left unresolved. After coming under some pressure, the application of the law was left to the discretion of locally based magistrates. Many of these said officials proved to be hostile to the digging up of the past, visible through the exhuming of a fraction of the bodies at first identified.

Garzón’s defence is arguing that the amnesty was only applicable to political crimes…

The Falange were one of the two private far-right groups who initially filed the case against Garzón, under the pretence that the law of ‘Historical Memory’ was illegal for having bypassed the 1977 amnesty. State prosecutors and defence lawyers in fact favoured the dismissal of the case from the Supreme Court but the panel of seven Supreme Court judges chose instead to uphold it. Garzón’s defence is arguing that the amnesty was only applicable to political crimes and not crimes against humanity. He himself stated that he accepted this case according to the same statute of International Human Rights legislation consulted in proceedings against Pinochet and the Argentinean military regime.

Various international human rights organisations have in fact come out in defence of the Spanish judge. The Human Rights Watch, the International Commission of Jurists and Spain’s Association for the Recovery of Historical Memory joined with Amnesty International in denouncing the proceedings. Hugo Relva of Amnesty International stated that the prosecution’s claims of illegal practice were invalid given the fact that crimes against humanity are not subject to amnesties under international law. Reed Brody of The Human Rights Watch added that it was the first time in the history of Europe that a judge was facing criminal action for the application of international law.

…a growing list of doubts surrounding the future independence of the Spanish judiciary.

No friend of either of the leading political parties, Garzón is a figure reviled even within his own profession for his overreaching measures and style of adjudication. It is for this very reason that so many commentators doubt the timing of the other charges of corruption and legal malpractice that are being simultaneously conducted. The New York Times editorial has been the last to add to a growing list of doubts surrounding the future independence of the Spanish judiciary. More than this though, the case against Garzón can be seen as an institutional attempt to deny justice to the many families who suffered during the civil war, hindering peace by once again stoking the fires of conflict.


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