STS 101/2012 of 27 February

The Supreme Court has pronounced Judgment of acquittal 101/2012 in the case 20048/2012, brought by the private prosecution carried out by the Civil Servants Trade Union “Clean Hands” and the Association “Liberty and Identity” against Judge Baltasar Garzón Real.

Please find attached the judgment of the Criminal Division of the Spanish Supreme Court which states that, despite the existence of errors in the interpretation of the law by the accused, they have been the subject of due revision and control by a judicial body deciding on appeal against his decisions and, therefore, there was not an arbitrary judicial decision as would be required for a conviction for Judicial misconduct.

 

Summary of the Judgment 101/2012, of 27 February

SPECIAL CASE: Prevaricación (breach of judicial duty, judicial misconduct). The so-called “Truth Trials”. Erroneous interpretation of the law and unjustice. Separate concurring opinion and dissenting opinion.

This judgment deals with the presumed perpetration by the accused of a crime of “prevaricación” (breach of judicial duty). The accused, as an investigating judge, started a criminal process to investigate the fate of the missing persons which took place from 1936 to 1952, that is to say, during the Spanish civil war and the ensuing repression.

The Supreme Court works on the assumption that the Spanish criminal procedure cannot be used to hold “Truth Trials”. These “Trials” are intended to investigate crimes in the knowledge that the guilty cannot be punished because their criminal liability is extincted by death. In Spanish Law, a criminal process can only be started to investigate crimes commited by an accused who is alive. Therefore, the search for historical truth is neither the function of the criminal process nor of the Judge.

Regarding the facts that led to the start of the procedure, the Spanish Supreme Court states that neither the interpretation of the defendant on the statute of limitation nor of the Amnesty Law were appropriate.
 

The Spanish Supreme Court affirms the validity of the Amnesty Law of 1977. This Act is part of a process of transition from an authoritarian state to the current democracy. This transition is considered exemplary and was the result of the embrace between the "two Spains" that previously faced each other in confrontation in the Civil War. Therefore it is not a Law imposed by the victors of the conflict to enjoy impunity for their actions. It was not a Law passed by the victors, bearers of power to cover up his own crimes, but a law that was enacted with the agreement of all political forces acting with a clear sense of reconciliation. 

For that reason, that is to say, because the “transition” was the will of the Spanish people embodied in a law, no Judge or Tribunal can in any way call into question the legitimacy of such a process. It is a law that may exclusively be repealed by theParliament.

In what concerns the likely perpetrators of the facts giving rise to this criminal process, it was a well-known fact that the likely perpetrators had died because they were historical figures, such as General Franco; or it was logical to think that such deaths had occurred, bearing in mind the time elapsed between the facts and the start of proceedings.

Taking into account, inter alia, these arguments, the Spanish Supreme Court states that that the decision of the accused to start the above-mentioned criminal process, was an erroneous interpretation of the law. But one thing is to make an erroneous interpretation of the law and another to consider it a crime of of judicial misconduct.

This crime does not punish an erroneous interpretation but the interpretation which is objectively contrary to the legal order in the sense that it is not admissible. It is considered as such the interpretation which is not based on any of the methods that the law puts at the disposal of the judge for that purpose.

Then the Spanish Supreme Court notes that there are resolutions of Tribunals and reports of jurists based on similar legal basis to the grounds that support the decision of the accused to start the procedure. At national level, the Court mentions in this regard reports of the public prosecutor before the Constitutional Court and the Spanish National Criminal Court (Audiencia Nacional) in two procedures. At international level, the court recalls the judgment of the European Court of Human Rights in the case Kolk and Kislyiy against Estonia, of 17 January 2006, as well as resolutions of the Committee of Human Rights.

Furthermore, the Spanish Supreme Court takes into account the fact that the accused intended with his action to improve the situation of victims or members of their families whose right to know the facts and recover their dead to honor them is recognized by laws recently passed by the Spanish Parliament, such as the Law for the Recovery of Historical Memory.

Accordingly, the Spanish Supreme Court declares the existence of errors in the interpretation of the law by the accused, errors which have been the subject of due revision and control by a judicial body deciding on appeal against his decisions. This means that there was a misinterpretation of the Law, but there was not an arbitrary judicial decision. In fact, arbitrariness in a decision is the legal ground of the crime of judicial misconduct.

Therefore, the behavior of the accused judge in the aforementioned case cannot be considered as manifestly unjust and arbitrary in the sense of the crime of judicial misconduct, even though his application and interpretation of the law was erroneous. For this reason, he must be acquitted.

This was the opinion of 5 of the 7 Judges who make up the Chamber. Oneof the judges filed a separate concurring opinion. He agreed that the charges should be dismissed, but on the ground that the accused lacked the necessary intent to abuse the judicial function. There is also a dissenting opinion of a Judge who states that the accused should have been convicted of judicial misconduct.

Provisions listed:

Amnesty Law of 1977

Spanish Constitution

Penal Code

Article 1

1. No action or omission that is not defined as a felony or misdemeanour by Law prior to it being committed shall be punishable.

2. Security measures may only be applied when the cases previously established by the Law concur.

Article 2

1. No felony or misdemeanour shall be punishable by a punishment that is not foreseen by Law prior to it being committed. Likewise, the Laws establishing security measures shall not have retroactive effect.

2. Notwithstanding this, criminal laws that favour the person found guilty shall have retroactive effect, even though final judgement may have been handed down and the convict is serving a prison sentence at the time of them coming into force. When doubt arises in determining the most favourable law, the prisoner shall be heard. However, offences committed while a temporary Law is in force shall be judged pursuant thereto, except for express provisions to the contrary.

Article 446.3 Any Magistrate or Judge who knowingly hands down an unjust judgment or decision shall be punished: (…) 3. With a penalty of a fine of twelve to twenty-four months, as well as special disqualification from holding any public employment or post for a period of ten to twenty years, whenever they hand down any other unjust judgment or decision.

Law for the Recovery of Historical Memory

Case Law:

European Court of Human Rights.ECHR Kolk and Kislyiy against Estonia, of 17 January 2006

Decision of the Human Rights Committee. Communication No. 275/1988: Argentina 04/04/90

Decision of the Human Rigsht Committee. Communication No. 3445/1988: Argentina 05/04/1990

Tribunal Supremo.Supreme Court Judgment No. 798/2007 of 1 October. (‘Caso Scilingo’. Lex previa, lex certa, lex scripta and lex stricta).