The UN Human Rights Committee agrees with Baltasar Garzón and concludes that the Supreme Court violated his presumption of innocence and skipped the mandatory guarantees of a judicial process when in 2012 it sentenced him to eleven years of disqualification for tapping the telephones of lawyers for the main defendants in the Gürtel case, which the then magistrate instructed from the National Court.
The UN Human Rights Committee asks the Government for explanations for the disqualification of Judge Garzón
The resolution of the United Nations body, to which elDiario.es has had access, assumes that the judicial process that ended Garzón’s career was “arbitrary”, which did not guarantee the impartiality of several magistrates who participated in the sentence. condemnatory and critical that he was deprived of a second instance before which he could appeal his disqualification. In view of all the above, the UN body demands that the Spanish State provide “comprehensive reparation” to Garzón, to erase his criminal record and provide him with “adequate compensation for the damage suffered.” The ruling gives Spain six months to “guarantee effective reparation” to Garzón for the injured rights.
The UN Human Rights Committee thus concludes six years later a file that initiated a complaint by Garzón himself in which he claimed to have been the victim of “persecution and reprisals” in response to the investigations he directed into the Gürtel case and the crimes of the Franco regime.
In that letter sent to the United Nations in 2016, the former magistrate of the National High Court affirmed that the cases in which he was accused of prevarication – Gürtel’s instruction, that of the crimes of the dictatorship – and a third for the financing of some courses that Banco Santander paid were “arbitrary and abusive” and that the courts that tried him (he was only convicted of tapping the phones of Gürtel’s lawyers) “lacked impartiality and violated his presumption of innocence.”
After analyzing the allegations provided by the Spanish State, the UN body protects Judge Garzón with a strong opinion. From the outset, remember that the decision to tap the phones of the lawyers of the main Gürtel defendants was adopted at the request of the police, it had the support of the Prosecutor’s Office, which, as the magistrate also saw signs of criminal activity in the lawyers, and it was extended by the judge who replaced Garzón in the investigation. And it establishes that Garzón’s interpretation “even in the assumption of having been erroneous, according to the State [Español en sus alegaciones], did not constitute conduct or serious incompetence that could justify his criminal conviction, resulting in the definitive loss of his position, but rather a possible interpretation of the applicable legal provisions “.
The ruling recalls that the position of the Prosecutor’s Office was that Garzón could not be convicted of prevarication for tapping the defense phones because it was allowed by the General Penitentiary Law.
The UN body also sides with Garzón on the lack of impartiality of some of the judges who convicted him.
At this point, the complaint of the former judge of the National Court alleged that two of the magistrates who convicted him of tapping the phones of Gürtel’s defenses had also tried him in the case of Francoism (where he was finally acquitted) and that the oral trials by both causes took place five days apart. According to Garzón, both processes were processed simultaneously against the same defendant and their sentences were handed down 18 days apart. The United Nations opinion notes that the (Spanish) State has not refuted Garzón’s allegation, in which it argued that Judge Luciano Varela, the main instructor in the Franco regime, “would have shown his lack of impartiality throughout the process by means of his repeated assistance to the plaintiffs, the pseudo Clean Hands union that denounced the then magistrate and whose leader Miguel Bernard was sentenced last July to four years in prison for extorting companies and personalities into paying them in exchange for avoiding lawsuits and discredit campaigns Garzón’s thesis is that Luciano Varela always supported his accusation in modifying his accusation writings “against him.
Therefore, the opinion concludes that it has no guarantees that the court that disqualified it was independent. It says it like this: “The Committee cannot conclude that the author had access to an independent and impartial court in the proceedings against him in the framework of the Franco and Gürtel cases, which ultimately resulted in his conviction and consequent loss. Consequently, the Committee considers that the author’s rights based on article 14, paragraph 1 of the UN International Covenant on Civil and Political Rights were violated: the one that appeals to the presumption of innocence.
The opinion also ends up censuring that due to his status as a registered judge –because he was a practicing judge at that time– Garzón did not have a second instance before which to appeal his conviction in the Supreme Court. The paragraph of the UN Human Rights Committee questions that the graduates do not have the right to review their sentences. He reasons it like this: “The Pact [Internacional de Derechos Civiles y Políticos de la ONU] it establishes that a person found guilty of a crime has the right to have the conviction and the sentence imposed on him be submitted to a higher court in accordance with what is prescribed by law. “And then he adds that this tagline” as prescribed by law “it 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 can be tried by a higher court than the one that would naturally correspond to them, it emphasizes that “this circumstance cannot by itself undermine the right of the accused to review his sentence and conviction, since the absence of any right to review by a higher court is not compensated by the fact that he has been tried by a higher court “.