“Impossible crime” was the title that I gave to the column that I published in El País on January 21, 2012. The judgment of the Supreme Court (TS) condemning Judge Baltasar Garzón for prevarication due to an agreed measure had just been made public in the investigation of the Gürtel case. It explained why his conduct in said investigation could not be classified in any case as constituting said crime.
The crime of judicial prevarication supposes the bankruptcy of the democratic legitimation chain of the State. In this lies its enormous gravity. The judge prevaricates in the exercise of the jurisdictional function when he replaces the “general will” with “his particular will”, that is, when it is not possible to establish any connection between his decision and the one adopted in his day by the legislator, who himself invokes, with any of the rules of interpretation admitted in the world of law. This is what happened, for example, with the conduct of Judge Gómez de Liaño in the investigation of Jesús de Polanco, for which he ended up being convicted of prevarication.
The “mistake” in the interpretation of the law does not constitute a crime. The mistake can be corrected by recourse before another judicial instance, but it cannot be classified as a crime. To be able to be, the judge has to ignore the law that must apply. When the decision of the investigating judge to intercept the communication between the detainee and his lawyers is preceded by an express request in this regard from the Police with which the Public Prosecutor agrees, the prevarication of the judge when adopting that measure is impossible.
This is what happened with Baltasar Garzón’s investigation in the Gürtel case. It was the police who requested that this measure be adopted. The Public Prosecutor’s Office agreed to this request. Subsequently, it was agreed by the judge with very strict limitations for affecting a fundamental right that occupies a very important place in the economy of our constitutional system in general and the administration of justice in particular. With this sequence, the crime of prevarication is impossible.
And yet, the Supreme Court convicted Baltasar Garzón as the author of said crime, which ended up leading to his being expelled from the judicial career.
Almost ten years later, the Human Rights Committee provided for in the International Covenant on Civil and Political Rights has issued an opinion in which it describes the judgment of the Supreme Court as “arbitrary”. It is an opinion approved unanimously by the members of the Committee. There are two individual votes, but they are “concurring” votes, in the first of which the rectification required by the majority of the Committee is considered insufficient, since, in the opinion of the authors, the Committee should require the Spanish State to reinstate the judge Baltasar Garzón in the investigating court from which he was removed with violation of his fundamental rights.
The Committee literally destroys the legal basis of the judgment of the Supreme Court. He leaves no puppet head. Although it does not say so, the decision assumes the qualification of prevaricator of the conduct of the Supreme Court magistrates who issued said sentence. It would be they who actually had prevarication by condemning Garzón for prevarication. There is no way to explain the judgment of the Supreme Court based on any of the commonly accepted rules of interpretation in the world of law.
It is true that the Human Rights Committee is not a body of a jurisdictional nature, as is the European Court of Human Rights (ECHR), but it is no less so that it is a body provided for in the International Covenant on Civil and Political Rights, ratified by the Spanish State. Those who form part of this Committee are jurists of indisputable prestige, who have formed their opinion after having heard both the judge and the Spanish State.
The Spanish State is condemned to “erase the criminal record” of Judge Baltasar Garzón, to compensate him adequately and to publicize the Committee’s opinion. It is obliged to inform the Committee within 180 days of the way in which the requirements contained in the opinion are being complied with.
The ball is in the court of the State, which has to decide how it will react to the opinion of the United Nations Human Rights Committee. Because silence for an answer is not acceptable. We are faced with a new drift in the Gürtel case, which goes back to a certain extent to its origins. Because the opinion of the Committee on the sentence of the Supreme Court of conviction for prevarication to judge Garzón has been known this week, but the events that are analyzed in said opinion take us back to the initial moments of the judicial investigation of the Gürtel case.
I don’t think this is the last of the surprises that the Gürtel case brings us.