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Should Spain go to the dock, instead of Judge Garzon?

ICAED demands that investigations into enforced disappearances during the Spanish Civil War and the Franco regime no longer be blocked.. ICAED also demands that reparation be given to  victims, and that the Amnesty Law of 1977 be abolished.

On January 24, 2012,  the Supreme Court of Spain launched oral procedings against Judge Garzon. He is accused of overstepping his jurisdiction by accepting complaints and beginning the process of investigations into enforced disappearances and other gross human rights violations that took place in Spain between 1936 and 1951.

Judge Garzon’s investigations dealt with crimes under international law, which can also be classified as crimes against humanity when they are practiced in a widespread or systematic way. Enforced disappearances are an ongoing crime for which there is no prescription, and perpetrators cannot benefit from any amnesty law.

In Spain, Law No. 46/1977 of 15 October 1977 established a limited amnesty that is only applicable to crimes committed with 'political intent'. This law doesn't protect those responsible for crimes against humanity committed on or before December 15, 1976.

Nevertheless, in 2008, the Human Rights Committee of the United Nations recommended that Spain: a) consider repealing the amnesty law of 1977, b) take necessary legislative measures to ensure the recognition of the imprescriptability of crimes against humanity by national courts, c) provide for the creation of a commission of independent experts to establish the historical truth about the human rights violations committed during the civil war and dictatorship, and d) allow families to  exhume and identify the bodies of the victims, and if applicable, provide them with compensation.

Meanwhile, in 2009, the UN Committee Against Torture recommended that Spain ensure that acts of torture, including crimes of enforced disappearances, are not subject to amnesty.  The Committee also encouraged the Spanish government, as a State Party to the Convention Against Torture, to continue and increase its efforts to help families of victims to determine the fate of missing persons, identify them, and exhume their remains where possible. The Committee also reiterated that the Spanish government, in accordance with Article 14 of the Convention, should ensure the right to redress and compensation to any victim of torture.

It should also be noted that Article 18 of the Declaration on the Protection of All Persons from Enforced Disappearance (1992) makes clear that the perpetrators or alleged perpetrators of enforced disappearances shall not benefit from any special amnesty law or similar measures which have the effect of exempting them from any criminal proceedings or sanction.

SimilarlyArticle 24, paragraph 6 of the International Convention for the Protection of All Persons from Enforced Disappearance (ratified by Spain on September 24, 2009), clarifies that States Parties have an obligation to continue investigations until the fate of the missing person is clarified.

In the light of the foregoing, it appears that Law No. 46/1977, as has been erroneously interpreted in Spain, and in doing so, violates the international obligations undertaken by the Spanish State. The authorities that  extend Law No.46/1977’s  to crimes of international law such as enforced disappearances contravene the recommendations of many international human rights organizations..

Therefore, if Judge Garzon is punished for acting on investigations in line with Spain's international obligations, it will result in the conviction of international mechanisms for the protection of human rights, and likely in the presentation of numerous complaints against Spain to international human rights agenices..

In this regard, on February 8, 2012, the UN Special Rapporteur on the Independence of Judges and Lawyers and the UN Working Group on Enforced and Involuntary Disappearances (UNWGEID) expressed strong concern about the potential effect of the judgment against Judge Garzon.

The International Coalition Against Enforced Disappearances (ICAED) calls on Spain to fulfill its international obligations and respect the right to justice, truth and reparations for thousands of victims of enforced disappearances during the Civil War and the government of Francisco Franco and his family.

The ICAED also wishes to emphasize that the alleged errors in judicial decisions should not be grounds for dismissal of a judge, let alone for initiation of criminal proceedings.

In this sense, the ICAED reiterates that in establishing procedure and investigating complaints concerning enforced disappearances committed during the dictatorship, Judge Garzon has fully complied with the Spanish State's international obligations and recommendations made repeatedly by various international organizations. 

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