Monday, September 20

The opinion of the UN committee on Garzón opens the debate on the right of the graduates to a second instance


Almost a decade after saying goodbye to the judicial career after being convicted of tapping the phones of lawyers for the main defendants in the Gürtel case, the UN Human Rights Committee has concluded that Baltasar Garzón was disqualified in an “arbitrary process” . In addition to reproaching the partiality of the magistrates who participated in the sentence, the resolution criticizes the fact that due to his status as a grader – as he was a judge of the National Court at that time – he was deprived of a second instance before which he could appeal the sentence of eleven years disqualification imposed by the Supreme Court.

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The opinion, although very strong in substance, will possibly have a limited scope and legal consequences since, like all the resolutions of this body, they lack jurisdictional value and are not binding, which leaves the adoption of the laws in the hands of the State. Suggested measures, no matter how much it adheres to the International Covenant on Civil and Political Rights and recognizes the authority of the committee that supervises it, the jurists consulted here agree. In this case, he requests that his criminal record be erased and he be given “adequate compensation for the damage suffered.”

The resolution does reopen the old debate on the situation of the graduates before the Supreme Court who, as it is the highest court, do not have the right to have the final resolution of their cases examined by another court. As established by the Constitution and the Organic Law of the Judicial Power, the investigation and prosecution of cases against members of the Government corresponds to the Criminal Chamber of the Supreme Court; the deputies, senators and presidents of both Houses; and the members of the General Council of the Judiciary, the magistrates of the Constitutional Court, the counselors of the Court of Accounts, as well as the judges and prosecutors of the higher instances.

That is to say, “the people who hold the highest responsibilities in all powers” are gauged before the Supreme Court, in the words of the professor of Procedural Law at the University of the Basque Country Iñaki Esparza, who questions that by the mere fact of holding those responsibilities they are subjected to processes “with an obvious loss of guarantees.” “It is an objective question. There are certain people who, due to their position, are assessed before the Supreme Court and the consequence is that they have one less instance when they should have it guaranteed,” says this expert who, together with Professor Juan Luis Gómez Colomer, published more than a decade ago the most relevant study that has been carried out in Spain on the aforementioned.

So they both clearly opted for its “deletion.” “It is a unique situation in Spain that does not solve any problem, does not serve to correctly channel any issue and does generate dysfunctions in the system like the one we see in this resolution, which is shameful, a real scandal. It is an institution incorporated into the norm legal for historical reasons, but it is worth reviewing it, “says Esparza. And he adds: “It is a serious problem and we have on the table the case of the procés, which is exactly the same,” says this professor, alluding to the questioning of the independence leaders that this case was judged by the Supreme Court, a issue on which the European Court of Human Rights (ECHR) will rule.

“Appealing before the Supreme Court is a poisoned gift because it leaves you without the right to a second instance, which is a right recognized in the International Covenant on Civil and Political Rights,” says lawyer Gonzalo Martínez Fresneda, who defended Garzón in his processes before the Supreme Court, as well as other experts such as the former socialist deputy José Blanco when he was indicted by the Champion case, a procedure that ended up being filed for him. Martínez Fresneda recognizes that the resolution on Garzón is not binding, although he trusts that it can serve as a basis to promote a legislative change in this regard.

The coalition government agreement between the PSOE and United We Can establishes the commitment to reform the Constitution to “limit political outbursts, limiting them to the exercise of the function by the public office.” Nothing is said, however, of the rest of the high-ranking officials or of the non-existent right to recourse of those who are before the Supreme Court. Faced with a hypothetical reform, Esparza admits that some kind of “intermediate instrument” could be established to, for example, verify the quality of complaints against parliamentarians, who are highly exposed and require protection due to their positions.

The preliminary draft of the reform of the nineteenth-century Criminal Procedure Law, which will begin to be processed in Congress soon, establishes as a novelty the guarantee of the “right to double instance” for the sentences of the Superior Courts of Justice relapsed in the processes of graduates. , but he continues to leave out the graduates before the Supreme. “There will be no recourse against the judgments issued by the Supreme Court in the sole instance in proceedings against graduates,” says the Government’s draft.

The UN opinion on Garzón is clear in this regard and recalls that article 14.5 of the International Covenant on Civil and Political Rights, to which Spain joined in 1985, establishes that “a person convicted of a crime has the right to have the ruling conviction and the penalty that has been imposed are submitted to a higher court, as prescribed by law. ” And it adds that this tagline “as prescribed by law” is not intended to “leave the very existence of the right to review to the discretion of the States.”

Although the UN body admits that the legislation of a country may provide that certain people “by reason of their position” may be tried by a higher court than the one that would correspond to them, it emphasizes that “this circumstance cannot by itself impair the right of the accused to have his sentence and sentence reviewed “. And he insists: “The absence of any right to review by a higher court is not compensated by the fact of having been tried by a higher court.”

Other resolutions on Spain

Garzón’s is not the first time that the UN Human Rights Committee has pronounced in a similar sense. It did so, for example, in 2002 when it declared that Spain had violated the aforementioned article 14.5 of the International Covenant on Civil and Political Rights in the case of the regional deputy of the PP Jesus Lump, sentenced to two years in prison by the Supreme Court for falsifying a private document according to which his wife would have to give him part of his property in the event of a divorce. Terrón was a member of the Cortes of Castilla La Mancha when the events took place, but having committed the crime in Madrid, the Supreme Court was competent to prosecute him.

Years later, in 2006, the UN body also agreed with Luis Oliveró, one of those convicted by the Filesa case, the great illegal financing scandal of the PSOE of the late eighties. A ruling recognized his right to present an “effective remedy” before a court superior to the sentence of ten years in prison that the Supreme Court had imposed on him at the time. Oliveró was the administrator of the Filesa company – designated for illegally financing the PSOE – but since a senator and a deputy were involved in the case, the investigation and prosecution corresponded to the Supreme Court. Oliveró had been pardoned in 2000 by the Government of José María Aznar.

In contrast, the Human Rights Committee refused in 2003 to protect the former spokesperson of the General Council of the Judiciary (CGPJ) Luis Pascual Estevill, sentenced by the Supreme Court in his capacity as magistrate to a six-year disqualification for a continuous crime of prevarication and two years of illegal detention. In this case, the UN body did not consider that Spain had violated the International Covenant on Civil and Political Rights because it was Estevill himself who “repeatedly insisted” on being tried “directly” by the Supreme Court instead of by the Supreme Court. Superior Court of Justice of Catalonia, which would have provided him with the “right of appeal”.



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