The judge who
thinks Franco can
still go on trial
On 31 January the judge Balthasar Garson was told by Spain's Supreme Court that he would indeed be required to answer charges that he violated a 1977 amnesty treaty covering events during the Spanish civil war and the dictatorship of General Francisco Franco.
In 2008 Judge Garson opened investigations into abuses committed by the regime, particularly 'disappearances', and is attempting to have them classified as unsolved crimes against humanity, thus taking them beyond the terms of the treaty and other agreements designed to reduce transitional tension in Spain at the end of the 1970s.
It should be noted that the charges against Judge Garson have not been brought by state prosecutors in Spain. These are private prosecutions initiated by supporters of General Franco's memory, referred to in the media as 'right-wing'. In total, Judge Garson is facing three separate charges:
Violating the terms of the post-Franco amnesty law of 1977.
Illegally authorising police officers to record the conversations of lawyers with their clients during his investigations.
Dropping an investigation into the head of Spain's biggest bank, Santander, after receiving payments for a course sponsored by the bank.
In these circumstances the charges can clearly be construed as politically-motivated, brought by people who do not want General Franco to go on trial posthumously and who believe they have found a way to stop Judge Garson in his tracks. However things are not so clear cut.
In the case of the first indictment, both the defence and the state prosecutors asked for the charge to be dropped; the second and third cases have yet to be heard in court. If he is found guilty of any one of the charges, Judge Garson will most probably be suspended from the bench for a maximum period of 20 years.
Baltasar Garson is an investigating judge, a position not common to all countries. He has the power to initiate and direct investigations in cases under his jurisdiction and can be viewed as blurring the distinction between prosecuting and presiding authority. He has been responsible for major criminal and anti-terrorist investigations and, through the international legal treaties to which Spain is a signatory, he has created an international reputation by deciding to consider cases of crimes against humanity and breaches of human rights beyond Spain's borders.
Judge Garson achieved major recognition on 10 October 1998 when he issued an international warrant for the arrest of General Augusto Pinochet of Chile while he was visiting London for medical treatment. General Pinochet had visited London on many occasions and was considered a close friend of Margaret Thatcher, a relationship cemented during the Falklands war in 1982 in which Pinochet's government provided very useful military intelligence to the United Kingdom, to the detriment of Argentina.
Judge Garson's activities in pursuit of Generals Franco and Pinochet
have brought many of the complex issues surrounding transitional justice into sharp relief.
However, by 1998, Mrs Thatcher was no longer prime minister and the governing party in the UK was now Labour. Under the terms of its own international treaty obligations, the British government executed the arrest warrant and held General Pinochet under house arrest until March 2000. From a partisan perspective both generals Franco and Pinochet can be regarded either as national heroes who prevented their countries, in different eras, from becoming communist; or as brutal right-wing dictators who used their nation's military and secret services to spy on, torture and murder thousands of civilians before and during their assumption of power through non-democratic means.
Similarly, Judge Garson can be seen either as a long-awaited representative of justice, investigating and making cases against authoritarian regimes responsible for blatant and significant violent breaches of citizens' human rights, or as a dangerous left-winger pursuing his own egotistical agenda of revenge through his judicial office. We must remember that Judge Garson briefly served as a minister in the Spanish government of socialist Felipe Gonzalez. We must also remember that, in both cases, Judge Garson chose to open investigations and, in General Pinochet's case, issue warrants even when a careful architecture of amnesty and immunity from prosecution had been agreed by the governments of both Spain and Chile, largely in the interests of peaceful national transition and redevelopment.
Regardless of one's political perspective, all three men are controversial and divisive figures in a world where the application of transitional justice, following the end of violent authoritarian regimes, is not as simple as many would wish. Judge Garson's activities in pursuit of Generals Franco and Pinochet have brought many of the complex issues surrounding transitional justice into sharp relief.
If 'justice' is not delivered, summarily, within the first few days of the end of a regime then it is unlikely to be delivered at all. Where negotiations follow during the post-regime transition period the over-riding objectives are to ensure that the transition moves forward and is not dragged back into the conflicts which saw the old regime take power in the first place. Vested interests, usually still holding powerful positions in the military or security services, require reassurance that 'stability' will be maintained and that they will not be prosecuted for simply 'following orders'. The people in general, excluding victims of the regime, their families and committed opponents, prefer to move away from the period of the regime and consolidate their new lives.
In the case of Chile, the overthrow of the elected government by General Pinochet was greatly facilitated by United States institutions and any detailed examination of what evidence remains would uncover the extent of US-support for illegal detention, arrest, disappearance, murder and economic warfare within the country. General Pinochet was not extradited to Spain to stand trial but was allowed to return home to face less vigorous and a more limited prosecution that did not threaten to tear the country apart again.
And so it seems that Judge Garson's attempts to bring crimes committed by Franco and Pinochet and others to justice will run into the sand. Judge Garson may be morally correct in his crusade but countries, establishments and most people who are recovering from the trauma of authoritarianism generally want to move on once the anger has subsided.
Ronnie Smith was born in Largs and now lives in Romania, working as a professional training business consultant and communication coach. He is also a teacher of political science, a political and social commentator and a writer of fiction