Monthly Archives: February 2012

A Legal Debate in a Public Space: An Evening at St Paul’s

On Monday I went to a law debate at tent city in Occupy London Stock Exchange (LSX) camp outside St Paul’s cathedral. I had been there more frequently in the autumn, when the weather was milder and I had more time to go to free lectures and engage with people. When I arrived on my bicycle, I encountered a large number of Mercedes and scarily underweight individuals, I was starting to wonder what had happened to the camp. I soon realised that these were the remnants of a London Fashion Week event taking place a couple of yards from the camp. To my relief ‘tent city’ the small tent reserved for debates and lectures was still standing outside St Paul’s cathedral.

After a poem about the law and various disagreements among the occupiers being  about neither “left wing” nor a “political movement”, the debate proceeded. Tom Wolfe (barrister at Matrix Chambers), Sarah Sackman (barrister at Francis Taylor Building)  and Conor Gearty (Professor of human rights at LSE)  stressed the importance of civil action in changing/progressing the law.  The speakers stressed the importance of engaging people in a discussion about social change. Conor Gearty stated that without public spaces it’s impossible to form a protest movement such as Occupy.

Injunction notice outside Paternoster Square stating that the piazza is "private land"

The St Paul’s camp was served with an eviction notice on Thursday, but the protesters claim the  movement is far from over. Occupy London has opened a wider debate on issues of equality, transparency and particularly property. Paternoster Square next to St Paul’s Cathedral, was the original destination of the protesters as it houses the London Stock Exchange. The piazza was off limits for the protesters as it is privately owned. It had been formerly described as a public space, but as soon as the protesters attempted to move in a sign was put up saying ‘private property’. As public spaces become increasingly privately owned, the owners of these areas can be more selective about which members of the public they allow to use the land.

The ownership of property is so fundmentally important in our culture that it is key to the way we save and spend money. Conor Gearty stated that the right to property was the single most valued right in our culture. Renting property makes little financial sense especially in London, but the high prices of property and proportionately low incomes prevent many people from buying property. Professional landlords who own numerous properties often exploit the situation, and limited tenants rights largely favour the landlords position.

Canary Wharf London

Sarah Sackman stressed the problems of privatisation of public spaces and policing in places such as Canary Wharf. These privately owned areas often exclude members of the public and are run by their own rules, making the use of these spaces subject to their discretion and approval. Public spaces are one of the few areas that allow people to congregate and express themselves freely,  they are essential for communities in densely populated areas such as London. Their decline is particularly worrying at a time where community centres and youth clubs have closed down and when for many people there are not many places to go. Young people need spaces they can use for recreational purposes, without being asked to move elsewhere because they may not fit the profile, or because their presence is unnerving for the landowners.

Occupy London barrister Michael Paget and defendants George Barda and Tammy Samede from the Occupy St Paul's camp outside the Royal Courts of Justice in London on February 22, 2012.

The  eviction of St Paul’s protesters raises issues regarding the accountability of the City of London Corporation as well as the ethical implications of privatising public spaces. It also raises issues relating to segregation and selective use of this space. Gated communities, areas such as Broadgate and Canary Wharf and private parks are features that add to the equality issues in London. Such inequality and exclusive land use is damaging for all sections of society. Public spaces are there to be enjoyed by all members of society, without public spaces it would be impossible to effectively exercise basic rights such as freedom of expression and assembly. It is key to recognise that it is the right of individuals to voice their opinions, it is their right to create a civil rights movement and to attempt to induce progressive changes in the law. Without public pressure, the law would have difficulty in moving forward and embracing reform. It appears that the most valuable thing that Occupy London has created is  a platform for debate and engaging in dialogue. Waking up public interest in politics and social issues and giving people a voice is hugely significant and reflective of our society.

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Consequences of Closed Material Procedures

The proposed ‘closed material procedures’ (CMPs) in the governments Green Paper seems not only alarming but also hugely misguided. The Green Paper proposes that these secret proceedings would be extended to any civil cases. CMPs would take place without the presence of the defendant and without their knowledge of the charges against them. In these closed procedures, ministers would be able to order hearings to be conducted in secret and claimants would be denied access to government evidence or witnesses.

While the absent defendant would be represented by a barrister in court, there may be no or little contact with their client. This would allow the material and evidence in the trial to be effectively unchallenged in court. To add to the secrecy and absurdity of the prospect of these proceedings,  even the final judgment could be wholly or partially withheld, allowing the convicted individual to be deprived of any information regarding his conviction.

Binyam Mohammed

The proposal comes after a number of actions were brought against intelligence agencies by former terrorist suspects, such as Binyam Mohammed, to the embarrassment of both government and the security services. Mohammed, an ex Guantanamo detainee and a British citizen, claims he was tortured while in custody, in the US amongst other places and accused the Britain of being complicit in this. Rather than disclosing intelligence related material to him and other former detainees, the British government paid him £1m in compensation.

Lord Carlile

In response to these proceedings against the government, it appears that high profile figures such as Sir Malcolm Rifkind, chairman of the parliamentary intelligence and security committee (and MP for Kensington), along with Lord Carlile QC are supporting CMPs as a viable a solution to such problems. The Green Paper proposes to extend the use of CMPs to civil claims. Lord Carlile criticised the current system as being insufficient in dealing with civil cases regarding national security, he claimed that payouts such as that received by Binyamin Mohammed was not an acceptable way of settling civil claims. He argued that the State should not be put in a position of having to choose to pay compensation to a claimant who may be the wrongdoer.

CMPs would take away the transparency of court procedures and give greater powers and increased secrecy to the workings of the security services and the government. The key issues here are accountability and transparency of the legal system. In its response to the Green Paper published on the HM website, the human rights group Reprieve gave a damning criticism of these proposals. They stated that this paper is simply asking the wrong questions, by seeking to drastically reduce the level of accountability of the government and intelligence services rather than attempting to improve these areas.

The response by Northamptonshire Police, welcomed the undisclosed sharing of secret information between states, however it also raised concerns over the misuse of CMPs and their human rights implications.

“The impact of the overuse of CMP’s would be to damage the UK reputation of a free and fair democracy. There are also considerations to be made pursuant to Article 6 of the European Convention on Human Rights – namely, the right to a fair trial”

Malcolm Rifkind

However  Malcolm Rifkind argues that the protection of sensitive material is essential to the co-operation with foreign intelligence agencies, and that intelligence sharing will be endangered if these exchanges are exposed in court. He claims that the sharing sensitive material with defendants and the court threatens the the future intelligence co-operation between states, by undermining the principle of confidentiality. Therefore publication of intelligence material would harm our national security.

It is not unusual for government agencies to support legislation infringing civil liberties and human rights in the name of national security. This legislation allowing civil judgements to be made behind closed doors, increases their powers at the expense of fairness and transparency. One of the most notable pieces of legislation in the UK regarding secrecy in the name of protecting national security is the Special Immigration Appeals Commission (SIAC). SIAC deals with appeals for foreign nationals facing detention, deportation or exclusion from the UK, often relating to alleged terrorism offences. It’s hearings and rulings are not fully revealed to the public nor to the appellant, this procedure has been widely criticised for it’s fairness and legality. To extend such secret procedures to civil matters is somewhat distrurbing.

Lord Carlile and Malcolm Rifkind stress the need for CMPs in the interests of national security, while this argument has been widely criticised by many of the respondents to the Green Paper. The response from the Special Advocates, who are appointed to work under SIAC in closed procedures and were proposed to act in CMPs, was particularly telling. They stated that no reason has been identified in the Green Paper to justify the introduction of such sweeping power.

“It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas…It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.”

The apparent need for CMPs seems to be an attempt by the government to extend it’s powers in the under the guise of national security. The role that secrecy plays in the justice system appears to be solely to the advantage of the security services rather than in the interests of justice.  The Green Paper raises both grave procedural and practical concerns, whilst presenting a relatively unrealistic proposal. Transparency and accountability are essential elements of the justice system in England and Wales, by conducting trials in secret and in the absence of the defendant, these proceedings take away core features of a fair trial. Expanding the use of CMPs would also be debilitating for the practice and progression of common law, as these hearings would be prevented from being reported. This would deny lawyers from accessing precedents arising from these procedures, making them only available to a few existing special advocates.

Parental Rights and the Role of the Courts

In an ideal world, decisions regarding child custody would not have to be made in court. Sadly the reality in 10% of divorce cases, is that courts are forced to take a central role in deciding the future of the affected children. The process of deciding and managing custody cases is often lengthy and drawn out. Time is even more precious when children are involved, and stalling in the decision making can add ammunition to the negative effects of the break up.

In the UK, there has been an ongoing campaign to give further legal rights to  fathers in the UK. Recent proposals to amend the Childrens Act of 1989 were revealed by Ken Clarke yesterday, which would give divorced fathers increased rights to see their children. There is some debate as to whether this would really improve the situation for the affected children.  In Australia the introduction of the right to shared access for both parents caused long delays in custody cases, which can worsen the situation for the children involved. The problems encountered in Australia illustrate that it may not be the law that needs changing but the way the cases are handled.

David Norgrove, who chaired the  Family Justice Review  which was commissioned by the government and published last year, criticised the proposals for reform. The report concluded that the law should not be changed, after thoroughly examining the issue of shared custody. The courts in England and Wales maintain that they assess each case individually and that the welfare of the child takes top priority. The minority of divorce cases that do get heard in the courts are a highly conflicted group, with numerous problems. In these complex cases usually both parents feel unheard. Coming to an agreement regarding custody and shared parenting will not be accelerated by giving parents more rights but by helping them fulfil their responsibilities. Finding a situation that is best for the children is the primary aim in such a situation and should be resolved by trying to give the children a voice. These cases are often very complex, courts already struggle to find the best speedy solution, more legislation could further impair the process.

In the majority of the cases that do go to court, family courts rule in favour of the mother. Because of the conflicted nature of these custody battle, this can result in a proportion of these children having little or no contact with their father. According to the Office for National Statistics, only 8% of single parents in Britain are men. The assumption of the courts is influenced by a traditional image of the nuclear family – where the mother cares for the children and the father works full time. These roles do not necessarily apply to the modern household and the courts bias towards the mother is somewhat out of date.

Growing up without the father can be difficult, but this is not always the fault of the courts or the limited custody rights. There are fathers who make the effort to see their children and there are those that don’t. However they should give the fathers that are good parents and want to have a key role in bringing up their children the opportunity to do so. Both parents have a right to raise their children and to be good parents, whether they are together or not. David Norgrove stated:

“This issue affects the lives of hundreds of thousands of children and it would be negligent not [to consider all options]. It is also right that we continue to encourage fathers to take responsibility as equal parents and to be fully involved with their children from the outset.”

The Children Act 1989 focuses on an individual child and their unique needs, preferences and circumstances. The rights of the child rather than the parents rights should be central in dealing with these cases. The primary issue is the culture of the courts that take an old fashioned stance in dealing with custody cases, rather than the lack of existing laws. The fair  implementation of these laws along with the role of the courts and social services should ensure the child has regular access to both parents.

Legal Aid Cuts

On Friday I’m off to interview the staff at the Hackney Law Centre on how the Legal Aid cuts and the Legal Aid Bill are going to affect people. Here is a link to an excerpt of yesterday’s BBC’s Today programme on legal aid

http://news.bbc.co.uk/today/hi/today/newsid_9696000/9696477.stm

Unpaid Work Experience at Tesco

The Department for Work and Pensions (DWP) scheme (which has been going since last summer) allows companies to take on unemployed young people without paying them. Under the scheme young people do not qualify for the minimum wage and are subject to the Sector Based Work Academies (SBWA) run by the DWP. These jobs are advertised on the job centre plus website paying job seekers allowance + expenses.

While I find the average unpaid work placement quite unethical, having done about 8 of them myself. It seems even more frustrating if the skills taken from that experience are so basic that they should have really given you the job in a matter of hours. I’m not saying those skills are not necessary or not valuable, but having done a trial shift in a pub or a shop I would expect to be fit for the job in the first few hours. Several weeks of working at ASDA, Tesco, Poundland or Sainsbury’s for free seems excessive in terms of ‘training’ people. The most offensive part of the DWP scheme is that these placements are paid for by the tax payer at no cost to the employer. The Job Centre pays for any expenses and the participants remain on Job Seekers allowance throughout the placement, so no cost to the employer at all.

“Participants will remain on benefit throughout the period of the sector-based work academy and Jobcentre Plus will pay any travel and childcare costs whilst they are on the work experience placement. There is no direct cost to an employer for sector-based work academies as the costs are covered by government funding.”

This could be valuable, if the skills the participants were learning were equal to that on a vocational or academic course. However the scheme seems to simply allow big companies to take advantage of a saturated job market (as they are anyway) and profit from free labour. Essentially the government is funding large companies to not pay their employees. How does this affect the permanent employees? How does this affect the self worth of those receiving 53 pounds to work 30 hours a week between 9am and 10pm? How does this make any sense at all?

“A work experience placement in your business will enable participants to develop their skills and have the opportunity to work in a real environment… it provides invaluable benefits for both businesses and individuals participating…The key principle to supporting participants during the placement should be to treat them as regular employees as far as possible whilst they remain on benefits”

If these were apprenticeships I would understand the value of learning new skills, however it just appears to be exploiting unemployed young people, who are already in a difficult position. Tax payers money could be used to help young people start up their own businesses and create more jobs, not to subsidise multinationals who are clearly taking advantage of the scheme.

Update: Baltasar Garzon found guilty of illegal wiretapping

Spanish judge Baltasar Garzón, was found guilty of illegal wiretapping yesterday, as a result of a domestic corruption investigation. A panel of 7 judges found him guilty of misconduct, he is now liable to pay a fine of €2,500 and has been barred from the bench for 11 years. He has also been on trial in a separate case, for allegedly abusing his position by launching an investigation into human rights abuses during the Franco era.

In 2009, Garzón ordered wiretaps of conversations held between detainees and their lawyers in prisons. Wiretaps are permitted in cases involving suspected terrorists, but Spanish law is more ambiguous on non-terror cases. Garzón claims he ordered the wiretaps because he believed the lawyers were being instructed by the detainees to launder money. The respective prisoners are accused of paying politicians to obtain lucrative government contracts.

Garzón is still awaiting the verdict from his other case.

IP Law and Extradition Agreements

The recent extradition case against Richard O’Dwyer, involving the breach of US copyright law, raises serious issues about the use of extradition agreements between states.  The 23 year old student ran tvshack, a website hosting links to tv programmes and films which could be streamed online for free. By providing links to protected creative material, his website was allegedly in violation of US copyright law. Despite the indirect function of the site, the links can amount to secondary infringement which is a criminal offence under US law.

Richard O'Dwyer with his mother Julia outside Westminster Magistrates Court

How do these US laws apply outside it’s own jurisdiction? The simple answer would be that they don’t.. Or that’s what we would assume. The crimes O’Dwyer is being sought for by the American authorities are not actually offences in the UK. However under an extradition agreement between the US and Britain he could be tried for crimes in US courts. The the Extradition Act passed by Labour post 9/11 in 2003, was primarily designed for extraditing terror suspects and appears quite unsuitable in relation to this case. Clearly Richard O’Dwyer is not being sought for terrorism offences, so how can this treaty be applied to someone who has merely violated US copyright law.

In the US O’Dwyer could face a maximum sentence of 10 years, while he would most likely only face a fine in the UK for equivalent copyright violations. Sir Menzies Campbell, who is currently leading a review of UK extradition arrangements, stated:

Sir Menzies Campbell is leading a review into extradition on behalf of the Lib Dems

“It seems anomalous to say the least that an action taking place in the United Kingdom which would not be regarded as criminal can justify extradition to the U.S.”

In January, District Judge Quentin Purdy said that he was satisfied the alleged conduct would constitute an offence under British law, and ruled that the extradition could go ahead. He stated that it was important that justice was not hindered by national borders, to ensure alleged victims of crime along with the public could maintain faith in the legal system. It seems to me that being extradited for copyright infringement on agreements created to deal with terrorism suspects, is a strong incentive for the public to lose their confidence in the judicial system. Why can O’Dwyer not go on trial in the UK if Judge Purdy believes his conduct would constitute an offence in Britain?

If there are such grave concerns relating to protection of intellectual property, why do they not create cross border agreements relating to intellectual property law allowing individuals to be tried in their home countries?  It seems fundamentally wrong to use an agreement designed for an entirely different purpose to extradite a British citizen on much lesser offences. It appears that the British courts are dealing with American pressure to extradite O’Dwyer under the Extradition Agreement rather than addressing the nature and gravity of his case. Julia, Mr O’Dwyer’s mother, has been running a campaign to to fight his extradition and allow him to stand trial in the UK. In an interview with the World Socialist website, she criticised the UK’s willingness to extradite its own citizens without considering the alleged offences:

“With America, it is a whole different treaty and law. It’s very difficult to fight because you’re not addressing the alleged crime. You are fighting the extradition law. When you go through the extradition courts, they want you to go to America to prove your innocence. They don’t want to be looking at the allegations against you”

The O’Dwyer case draws worrying parallels with the case of Gary McKinnon, who has been fighting extradition to the US after hacking into the Pentagon website. The Asbergers sufferer claimed that he had hacked into the site in 2001 and 2002 in an attempt to find evidence relating to UFO’s. He has also been subject to the 2003 Extradition Agreement between the UK and US since it came into force in 2005 some years after he committed the relevant offences. If McKinnon is extradited and charged he could face up to 70 years in prison.

US President Barack Obama tried to distance himself from the issue of extradition when forced to answer a question about O’Dwyer’s case in a live digital questioning session in the White House. Thousands of web users had voted for it to be the top issue to be put to the president. Obama claimed that as a president he did not take a direct role in the case.

“I’m not personally doing anything, I want to make sure everybody understands… the president doesn’t get involved with prosecution decisions or extradition decisions and this has been a decision by the Justice Department”

While the US president may not be personally seeking O’Dwyer’s extradition, he did not criticise the case. Nor did he comment on the use of anti-terrorism legislation relating to the extradition agreement. In a stereotypical style of a politician he looked shifty and tried to move away from giving a clear answer.

The Extradition Agreement 2003 makes it much easier to extradite British citizens to the US than the other way round. The ratio of extradition currently stands at 5:2 in Americas favour. Mrs O’Dwyer has been very open in voicing her disappointment in the UK’s  handling of the case, she told the Daily Mail:

“The UK government’s passive acceptance of disproportionate extradition is shameful, but well known.” 

Extradition agreements should be reserved for serious crimes involving dangerous criminals. While the tvshack website may have been in violation of copyright laws in the US, extradition and custody measures  seem to be a hugely disproportionate punishment for a young university student. The role of British courts in this case is hugely alarming and raises concerns regarding the protection of British citizens. The extradition process should not be welcomed by UK courts but rather enforced as a last resort in serious circumstances. The laws used to extradite individuals should relate to their offences rather than serving a means to put them on trial in that country. If we constantly extradited British citizens for breaching laws of other states we probably wouldn’t be left with much of a population. Perhaps due to increased globalisation and internet piracy, a strengthening of intellectual property law is needed across borders. However extradition measures created for terrorism offences have no application in such circumstances.

A petition has been set up to campaign for a fair trial for Richard O’Dwyer in the UK.

Here is a short video on the case from RT News

Police for Hire!

The Metropolitan Police has come under fire after it emerged Richard Branson’s Virgin company paid the Met  police £5,060 towards carrying out an investigation involving Virgin’s TV boxes.

Richard Branson founder of Virgin

After the convictions of 3 defendants in a recent fraud case, it became apparent that Virgin Media paid the police for overtime to conduct raids in east London. The police raids aimed to prove that viewers were using Virgin television boxes without paying for the channels they were watching. The scam would have potentially allowed thousands of viewers to avoid paying fees, costing Virgin millions of pounds.

The issue here, is not whether fraud was being committed by these individuals, but whether it is correct for investigations conducted by the Metropolitan police to be funded by private corporations, who have a direct interest in the operation. The raids were clearly not a priority in terms of the gravity of the crime, therefore the attention given to the case appears to have been induced by money rather than importance. The police raids, which were carried out in east London in 2008, netted 5,000 set-top boxes and £90,000 in cash. Three men were convicted and imprisoned as a result. However, one of the men is now seeking to quash his conviction on the grounds that the police only investigated him because of the money offered by Virgin.

The private work of public services, at a time when public services are already stretched, is alarming. How common are such practices in the Met police?  This information has come to light at a difficult time for the Met police, which has been facing widespread criticism for its handling of the riots and its role in the recent bribery scandal involving Sun journalists. The cuts to the police force are most likely going to stretch their capacity further, and these practices could be harmful by taking away from the high demand for policing across London. Jenny Jones, Green Party mayoral candidate and member in the London Assembly, voiced her concerns on the issue:

“It’s like private policing and I am really shocked that somebody thought this was OK. The police should not accept huge payments from wealthy companies to investigate crimes on their behalf.”

Jenny Jones

She added that this kind of practice could have a detrimental effect on the role taken by the Met Police in tackling serious crime.

“It means such paid work could take priority over murder, rape or child abuse cases, which would distort the Met’s priorities for London.”

Ms Jones stated that she will raise the issue with the Met Commissioner and the deputy mayor for policing.

A Virgin Media spokeswoman said that the joint operation between Virgin Media and the Metropolitan Police, was in accordance with the Police Act 1996. She also claimed that details of the arrangement were fully disclosed in court. The written agreement Between the police authority and Virgin, also guaranteed the Met a ‘cash donation.’ This would amount to 25 per cent of any compensation awarded to Virgin, following a successful conviction over the fraud.

Civil rights groups have accused the police of being selective in their treatment of victims of crime. Shami Chakrabarti, director of Liberty, said:

“Times may be tough but that’s no excuse for turning the police into hired guns for those wealthy enough to pursue crimes against them.”

She added that being motivated by money could affect the way that police prioritise their actions in terms of payment and neglect those in need.

“Taking a percentage of a victim’s remuneration is bad enough but even worse is the thought of those in greatest need of protection being turned away in favour of those who can afford to pay.”

As a public service, should it be possible to hire the police for carrying out investigations on behalf of large companies? These practises open the door for murky behaviour by a service that should serve the public interest and uphold the law. It seems to go against the principles of transparency if you can hire the police, in the same way that companies hire mercenaries in failed states, to act on your behalf provided you can pay them. The police must be entirely independent from the influence of private enterprise, in order to sufficiently uphold the law. The police work to protect the public and keep a degree of order, they are not to be used as cheap labour that carry out specific assignments in the interest of and funded by private corporations. 

The Met declined to comment for legal reasons.

Amnesty and Human Rights – Is Forgetting Justifiable?

The case of Baltasar Garzón has started a debate not only regarding judicial activism and the role of judges, but also around the recognition of amnesty for alleged war criminals.

Baltasar Garzón, a magistrate in Spain’s national court, was previously responsible for the arrest and attempted extradition of Chilean ex dictator and war criminal, Augusto Pinochet, from London in 1998. The British courts agreed due to the nature of the case, which related to the alleged torture of Spanish citizens under Pinochet, that the public international law principle of universal jurisdiction could be applied. However, the then home secretary, Jack Straw, turned down the extradition application on health grounds, due to the former dictator’s age and illness. Despite this, the arrest of General Pinochet encouraged the Chilean judicial system to prosecute past abuses.

Garzón was recently suspended after opening a formal court investigation into human rights abuses committed by Spain’s former dictatorship. He was seeking to investigate the deaths of 114,000 opponents of the Franco regime between 1936 and 1975. Garzón is now facing charges for abuse of power in his trial that opened in the Supreme Court in Madrid yesterday.

Baltasar Garzón

His judicial activism has been widely criticised and condemned by other judges, who claim he is harming the legitimacy of the judicial system. He has also been accused, by both high profile opponents and the media, of vanity and being motivated by his own interests. Nevertheless, Garzón maintains that opening the investigation was based on the same principles used to order the arrest of Chile’s Augusto Pinochet.

In 1977, during the transition to a democratic system in Spain, an amnesty was put in place to cover all crimes of a “political nature” committed during the regime. Mr Garzón argued that the amnesty law does not apply to crimes against humanity and that he was applying the same principles to the Franco regime as to that of Pinochet. However, a Supreme Court judge stated that his actions amounted to a breach of his duties as a judge and that his arguments had no basis under international law.

Under international law, the criminal prosecution of individuals responsible for human rights abuses is an essential part of a victim’s right to justice. The granting of an amnesty is not uncommon in certain situations following conflict; where violations of international humanitarian law have occurred on a massive scale, often involving a large section of the population. However, there is also a need to balance the victim’s rights to justice with the need of the State to promote reconciliation in dealing with past atrocities without provoking further conflict. Where States like Spain have enacted amnesties in periods of transition, it’s necessary to consider whether such amnesties should be recognised internationally.

So the question arises, should international principles apply to a (domestic or international) court’s decision on whether to recognise amnesties covering war crimes? When there is a threat to peace, there may be need for an amnesty, and other accountability measures, to deal with those responsible. This would of course not be the case in Spain, which almost half a century after the death of Francisco Franco, is a stable and democratic country.

It appears that the basis for trying Baltasar Garzón is not in fact relating to a  breach of the 1977 amnesty law, but rather a fear of his judicial activism.  Spanish courts have been criticised for trying to bury the past, failing to investigate or seek accountability for atrocities committed during the Franco regime, and during the Spanish Civil War. Why is there such a reluctance to address the crimes of the past? In 2009, the European Court of Human Rights held that an amnesty law is generally incompatible with the duty of a state to investigate acts of torture or barbarity.

Why has Garzón’s role in seeking to investigate human rights abuses landed him on trial? It appears that the judiciary does not want to recognise its role in examining the validity and relevance of this law. Its decision to criminalise questions regarding the regime seems both disproportionate and confused. Rather than trying Garzón for his actions as an individual, the judicary could be working together as a body to take an investigative role, and come to terms with its violent history dating back to the Spanish civil war.

Here is a short clip about Baltasar Garzón on the Guardian website.