Spanish Judge Baltasar Garzon Cleared But Francoist Crime Investigations Stall

One of the world’s most famous and controversial judges, Spain’s Baltasar Garzón—who ordered the arrest of Chilean dictator Augusto Pinochet for war crimes and ferreted out Al Qaeda’s terror cells in the Iberian peninsula--won a hollow victory on Monday after the country’s Supreme Court absolved him of knowingly overstepping his jurisdiction when he tried to investigate the fates of some 114,000 people who disappeared during the Spanish Civil War and the early years of General Francisco Franco’s dictatorship. (In 2008, Garzon ordered the exhumation of an unmarked grave thought to contain the poet Federico Garcia Lorca, but Lorca’s body was not inside.)

While Garzón has been cleared, the victims’ families are no closer to learning where their relatives are buried.

“I think it’s normal that they absolved Garzón, because for me it’s unthinkable that the opposite could occur,” said Emilio Silva, head of the nonprofit Association for the Recovery of Historical Memory, which, alongside similar groups, organizes the study and exhumation of mass graves throughout Spain. “But we’re still waiting for the justice system to help the victims.”

Silva’s group has uncovered the bodies of around 5,500 people over the last 11 years. Volunteers dedicate their free time to assisting archaeologists and forensics experts locate and exhume unmarked graves that hold anywhere from a few bodies to thousands of wartime and postwar dead. The graves are thought to hold opponents to Franco’s military uprising in 1936 and to his regime from 1939 onward. Franco’s enemies were often arrested, taken to a secluded spot, shot and buried. The executions were known as a paseo—a stroll.

“We are going to continue exhuming graves as long as towns ask for our help, and the demand hasn’t stopped,” Silva said. “It should be the branches of government that take care of this, but for them it’s not a priority. It saddens me, especially because we deal directly with the families.”

Garzón’s involvement with the exhumations began in December 2006 when victims’ relatives asked the High Court to investigate their disappearances. After compiling the first nationwide census of unresolved deaths between 1936 and 1952, Garzón ruled that the High Court had jurisdiction over the investigation. State attorneys disagreed, saying that jurisdiction lay with the local courts where the crimes had been committed--an argument that the High Court assembly agreed with, stripping Garzón of the investigation and handing the cases to the local courts.

The case was closed, but a right-wing association called Manos Limpias (Clean Hands) and the modern-day Fascist Party—the only legal party during the Franco regime—both filed motions claiming that Garzón had knowingly crossed the line with his ruling. In Spain, such a crime can remove a judge from the bench. The groups pointed to the country’s 1977 Amnesty Law that cleared members of the regime from prosecution; Garzón had argued that forced disappearances, a crime with no statute of limitations, did not fall under this law. Despite objections from the State Attorney’s office—which is now on Garzon’s side—the Supreme Court allowed the motion and indicted Garzón.

“The Spanish justice system cannot shut its eyes to such serious events that continue to affect people today,” Garzón told The Daily Beast last May. “It needs to confront these acts and provide legal protection to victims. They have a fundamental right to the truth, to justice, and to redress. But many people in [Spain] still don’t understand this.”

Despite the circus surrounding the trial, it was the first time that Franco’s victims spoke openly in front of a national court about the atrocities that befell their families. Pino Sosa, 75, was a little more than a month old when, she said, men affiliated with the Fascist Party took her father away in 1937.

“It was six o’clock in the morning,” Sosa testified. “My mother told me she went to get my father a coat, but one of them told her, ‘Don’t worry, ma’am, where he’s going he won’t need it.’ We never saw him again.”

The Civil War charges coincided with two other cases against Garzón. The Supreme Court threw out bribery charges against him earlier this month, only days after the same court found him guilty of malfeasance after ordering illegal wiretaps during a political corruption investigation. Garzón won two out of three cases, but the 11-year suspension from duty means he will likely never try a case in Spain again. Since being indicted, Garzón has worked as an adviser to the prosecutor’s office at the International Criminal Court in the Hague.

“Judge Garzón should never have been prosecuted for complying with the clear obligation under international law to investigate grave violations of human rights,” said a joint statement by 10 human rights and legal groups on Monday. “Moreover, the critical question that motivated the prosecution of Judge Garzón has not been adequately answered: Who has the legal authority to investigate crimes committed during the Spanish Civil War and the Franco regime?”

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The Supreme Court must now answer that question, because several of the local courts that received Garzón’s cases returned them to the High Court, claiming that the national court should investigate. Silva criticized the court for spending more time going after Garzón than providing legal cover to the victims’ relatives, many of whom have been waiting for justice for more than 70 years.

Ironically, a judge from Argentina, using the same universal jurisdiction doctrine that Garzón employed to go after human rights violators around the world, has opened a case into Francoist crimes on behalf of several groups and a man named Dario Rivas, who has lived in Buenos Aires since he was nine years old and who claims that Franco’s forces shot his father, a man from northwestern Spain, in 1936.

“Just like a Spanish judge had to investigate Argentina’s human rights crimes, now it seems an Argentine judge has to do the same with us,” Silva said.