Tag Archives: judge

Baltasar Garzon Cleared – What does this mean for the Spanish Justice System?

Baltasar Garzon was cleared by the Spanish Supreme Court of overstepping his authority on Monday. He was accused of abusing his judicial powers by opening an investigation into the disappearance of 114,000 individuals during the Franco era. Mr Garzon argued that these were crimes against humanity and therefore could not be subject to a 1977 Amnesty legislation, which prevented the perpetrators from being tried.

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Only one judge on the seven judge panel was in favour of a guilty verdict. However it seems his acquittal was based on a technicality rather than a changing view of the law regarding the issue. Mr Garzon had committed an error when he opened the investigation but it did not constitute a crime. The ruling stated:

“He misinterpreted Spanish law but did not knowingly and arbitrarily violate the limits of his jurisdiction … as would be required for a conviction” 

He was recently found guilty of illegal wiretapping in a separate case, which in Spanish law seems to constitute a rather grey area. This guilty verdict caused him to be suspended from acting as a judge for 11 years, effectively ending the career of the 56 year of judge. He was also accused of corruption in another case which has been thrown out by the Supreme Court.

His supporters and a number of human rights groups have argued that these cases against him were primarily politically motivated. The prominent judge had made many enemies due to his activism, especially launching an investigation into Spain’s recent bloody history. His opponents have argued that writing history should be left to the historians while his supporters want accountability and answers for the crimes committed. The outcome of this case appears to have done little in terms of clarifying the legal issues surrounding Mr Garzon’s conduct and his aims, it has arguably just raised concerns over the legal and political implications of addressing Spain’s past.

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.

The First Female Barristers

When I was thinking about which women to write about in this article, I realised that there are a huge number of women I wanted to include for their role in breaking down boundaries in the legal world. I thought about the first female barristers, the first female QC’s, the first female judges all of them remarkable individuals. However while almost wanting to write a list of women who inspired me to study law, and writing a small caption on who they were and why, I decided to focus on 3 women in particular. Dr Ivy Williams, the first woman to be admitted to the bar; Rose Heilbron, one of the first 2 female QCs; and Dame Elizabeth Lane, the first female judge and first female High Court judge in England and Wales.

A cartoon of a woman wearing a large barrister's wig, before women were allowed to practise law

The most prestigious positions in law are still dominated by men even today, a QC I once worked for said ‘there are more women in law, but the men are still at the top’ those positions may only come available once the male elite has retired. Undoubtedly this will happen eventually, however women are still being prevented in gaining their fair share of the jobs at the top of the hierarchy. In an article in the Guardian, Lady Justice Hallett expressed her own disappointment at the failure of the judiciary to reflect the society they serve:

“A number of women may have made it to the very top of the profession but, as in other sections of society, there is still a long way to go. For reasons I cannot fathom, I remain the only woman to have been elected chairman of the bar (back in 1998).”

I am not trying to blame the unemployment rate among law students on old fashioned misogyny of course, but when you look at the number of female law graduates for the last few decades and compare it to the sex of judges and high profile lawyers in England and Wales, there are huge inconsistencies. This indicates that the close knit boys club that houses the wealthy white male barrister still exists, at the top at least.

Dr Ivy Williams

One of the first true pioneers of women at the bar is Dr Ivy Williams. She had taken all her law exams by 1903, but university regulations at the time prevented her receiving her qualifications. However, when the regulations in the UK on female students were changed in 1920, she was finally able to graduate along with many other women.

Dr Ivy Williams: The first woman to be called to the bar

She was determined to join the bar now that the laws had changed and she ultimately sought to provide free legal advice to the poor. In 1921 she wrote an article for Woman’s World magazine, stating that she would petition parliament if she was prevented from joining the bar.

However, luckily she secured the support of some influential members of the Inner Temple – the Inn where she was a member and she was called to the bar in 1922. Although she never actually practised as a barrister she paved the way for women to take up the legal profession which was inaccessible and one of the last professions to accept women. She was the first woman to be awarded a Doctorate of Civil Laws and the first woman to teach law at an English university, by teaching law she also inspired other women to go to the bar.

Rose Heilbron

Before writing this article I spoke to my grandma about women in law, she told me about her legal idol Rose Heilbron, who had attended the same primary school in the years preceding my grandmother. I later realised what an important figure she had been in law, especially regarding her law report on the reform of rape laws. Heilbron recommended anonymity was to be given to complainants to encourage them to come forward. In the 1975 law report she also urged for the defence to be limited in their capacity to cross examine the complainant about their sexual history to intimidate them and paint them in bad character.

First female QCs: Helena Normanton left and Rose Heilbron on the right

She was of Jewish descent, from Liverpool and was the prominent leader of the Northern circuit. She was called to the bar in 1939 and she was one of the two first female QCs (then still King’s Counsel) along with Helena Normanton. A calm and collected advocate, she charmed juries and was hugely admired in court for her thoroughness and her style.

Dame Elizabeth Kathleen Lane

Being a member of the Inner Temple myself, I was quite excited to find so many impressive women have been members of that Inn. Like Dr Ivy Williams, Dame Elizabeth Lane, the first female judge and the first woman to sit in the High Court, was also a member. In her biography she writes about finding her way to the bar ‘by accident’, while helping her husband with his legal studies. Her stories of her childhood and her dislike for schoolwork remind me of my own schooldays. Cramming late at night with a torch under the bedclothes, training her memory for the quick absorption of facts, ideal for reading a barrister’s brief that will soon be forgotten again after the case.

Dame Elizabeth Kathleen Lane: First female judge in the UK

Although she only started her pupillage later in life in 1941 at the age of 36 and she soon began a fast paced and successful career in the late 1940s. After obtaining Silk, she was appointed as the first woman commissioner of Manchester Crown Court, where she was addressed as ‘My Lord’, and referred to in the official calendar as ‘Mr Commissioner, Elizabeth Kathleen Lane QC’ in defiance of rationality and common sense. She became the first appointed female county court judge in 1962 and the first woman to be appointed to the High Court in 1965. She was an intelligent, compassionate and hardworking woman who is credited with finally introducing ‘Your Ladyship’ to the legal vocabulary.

Women who entered the legal profession were undoubtedly faced with a huge number of obstacles and hostility during a time when law was such a male dominated area. They must have been remarkable people of exceptionally strong character. Their determination paved the way for great women that followed in their footsteps to pursue a successful career in law.  It’s funny to think that over half a century later, it is women who dominate law studies at university. If the judiciary is to truly reflect the society it regulates women should also gain more respect and status in the legal profession.