The case of Baltasar Garzon v. Spain. The Human Rights Committee's opinion of May 23, 2023. Communication No. 2844/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
The author, who was a judge, claimed to have been the victim of harassment and revenge for conducting investigations in a number of cases. According to him, the courts that examined his case were not impartial. The author also pointed out that, in violation of article 2 (paragraph 3) of the Covenant, he had not been provided with an effective remedy to remedy the violations mentioned in his communication, which would have allowed the proceedings against him to be dismissed. The author claimed that the State party had violated his rights under the Covenant. The Committee found violations by the State party of articles 14 (paragraphs 1 and 5) and 15 of the Covenant.
As seen from the text of the Considerations, the author of the communication was Baltasar Garzon, a Spanish national. The author served as a judge in the State party for 31 years, including 22 years as Chief Judge of the Central Investigative Chamber No. 5 of the National Judicial Board. In this capacity, he led the investigation in two cases that had great political resonance at the national level. After the completion of the investigation in these cases, individuals and legal entities, in respect of whom investigative actions were carried out, filed complaints against the author about abuse of official authority. The author claimed to have been the victim of persecution and revenge for the investigation of these two cases. According to him, the courts that examined his case were not impartial. The author also pointed out that, in violation of article 2 (paragraph 3) of the Covenant, he had not been provided with an effective remedy to remedy the violations mentioned in his communication, which would have allowed the proceedings against him to be terminated. The author claimed that the State party had violated his rights under articles 2 (paragraph 3), 14 (paragraphs 1, 2, 3 and 5), 15, 17, 19 and 26 of the Covenant. The Committee found violations by the State party of articles 14 (paragraphs 1 and 5) and 15 of the Covenant.
The Committee's legal position: in accordance with general comment No. 32 (2007), States should take specific measures to guarantee the independence of the judicial system, ensuring the protection of judges from any form of political interference in their decision-making process, through constitutional guarantees or the adoption of laws establishing clear procedures and objective criteria for appointment, remuneration, retention of the position, promotion, suspension and termination of the powers of members of the judiciary and disciplinary sanctions applied to them. He also recalled that the powers of judges can be terminated only on the basis of serious evidence of misconduct or incompetence in accordance with fair procedures ensuring objectivity and impartiality and established in the Constitution or in the law. Similarly, the Basic Principles of Judicial Independence state that judges may be suspended or dismissed only because of their inability to perform their duties or conduct that makes them inappropriate for their position (paragraph 5.4 of the Considerations).
The Committee noted that the principle of judicial independence, which is an integral guarantee of the free exercise of judicial function, requires that the judge (as well as the prosecutor) He could freely interpret and apply the law and evaluate facts and evidence without facing intimidation, harassment or interference in the performance of his duties. Judges should not be subject to criminal or disciplinary proceedings based on the content of their decisions, except in cases of suspicion of committing a serious crime, corruption, misconduct or incompetence that make them inappropriate for their position, and subject to their right to a fair trial. Judicial errors should be corrected by a review of the decision by a higher court (paragraph 5.5 of the Considerations).
The Committee drew attention to the fact that the requirement of impartiality has two aspects. First, judges should not allow their decisions to be made under the influence of personal interest in the outcome of the case or prejudice, and they should not be biased against the particular case they are considering. Secondly, the court must also present itself as an impartial body in the eyes of a reasonable observer. For example, a trial whose course is largely influenced by the interest of a judge who, according to domestic laws, should have been disqualified, usually cannot be considered impartial (paragraph 5.10 of the Considerations).
The Committee recalled that anyone convicted of any crime has the right to have his conviction and sentence reviewed by a higher court in accordance with the law. The Committee recalled that the phrase "in accordance with the law" did not imply the discretionary powers of States parties with regard to the granting of the right of review in itself. Although the legislation of a State party may, in certain cases, provide that, in connection with his position, a person falls under the jurisdiction of a higher court than is usually practiced, this circumstance in itself cannot detract from the right of the accused to review his sentence and conviction, since the absence of the right to review by a higher court is not compensated by the fact that the person is tried by the Supreme Court of the State party concerned; Rather, such a system is incompatible with the Covenant, except if the State party concerned has entered a reservation in this regard (paragraph 5.12 of the Views).
In the Committee's view, the specific nature of any violation of article 15 of the Covenant requires it to examine whether the interpretation and application of the relevant criminal law by the national courts in a particular case indicates a violation of the prohibition of punishment by virtue of the law that came into force after the commission of the punishable act, or punishment not based on the law. In this regard, the Committee may consider whether the crime is "sufficiently defined" to comply with the principle of legality, according to which criminal liability and punishment should be determined by clear and precise provisions only of the legislation that was in force and applied at the time of the commission of the act or omission. Any crime must clearly fall within the scope of the law and have predictable consequences for the accused (paragraph 5.14 of the Considerations).
The Committee also recalled its jurisprudence according to which the assessment of facts and evidence in each specific case or the application of domestic law is entrusted to the courts of States parties to the Covenant, unless it is proved that such an assessment or application was manifestly arbitrary or amounted to a clear error or denial of justice (paragraph 5.15 of the Views).
The Committee's assessment of the factual circumstances of the case: it was established that the author made reasoned decisions, having the necessary powers to investigate the circumstances of the case, and that he was not the only one who held such a position, since he was supported by three judges of the plenum of the Criminal Chamber of the National Judicial Board and several judges of local courts, as the prosecutor's office officially stated in its objection to the initiation proceedings against the author on charges of abuse of office. The Committee considered that, in the light of the above, the author's decisions represented at least a plausible legal interpretation, the legality of which was appealed on appeal and from which it did not appear that his decision in the Francoism case could amount to improper conduct or incompetence justifying the termination of his powers in accordance with General Comment No. 32 published by the Committee. In this regard, the decision of the Supreme Court of the Kingdom of Spain 101/2012 of February 27, 2012 on the acquittal in the Francoism case emphasizes that the author's error "was judicially corrected by the plenum of the Criminal Chamber of the National Judicial Board" (paragraph 5.7 of the Considerations).
"The author held the position of a judge in the State party for 31 years, including 22 years as Chief Judge of the Central Investigative Chamber No. 5 of the National Judicial Board. In this capacity, he led the investigation in two cases that had great political resonance at the national level, namely, the case of crimes against humanity committed during the Franco dictatorship (the "Francoism case"), and the case of corruption in the People's Party of Spain (the "Gürtel case"). After the completion of the investigation in the two cases mentioned above, individuals and legal entities in respect of whom investigative actions were carried out filed complaints against the author about abuse of official authority" (paragraph 1.2 of the Considerations).
In relation to the second case ("The Gürtel case".) The Committee noted that the author had been convicted of abuse of office in connection with his order to listen to the oral conversations of the accused with their lawyers. However, the Committee took note of the author's allegations that his orders to listen to communications were issued at the request of the police and with the approval of the prosecutor's Office on the basis of signs of criminal activity on the part of the defenders and were valid for a limited period, that transcripts relating to the defense strategy were excluded from the case file and that the validity of the orders was extended by the judge, who replaced the author after his removal from office (paragraph 5.8 of the Considerations).
With regard to the alleged impartiality of the adjudicating courts, the Committee noted that, according to the State party, five judges who participated in both trials were, at the author's request, removed and suspended from the trial. However, the Committee has taken into account the author's allegations, which have not been refuted by the State party, that two of the judges who convicted him in connection with the Gürtel case also tried him in connection with the Francoism case and that oral hearings in these two cases were held five days apart... Both trials against the same accused, the author, took place simultaneously, and the verdicts were handed down within 18 days of each other. The author applied for the dismissal of both judges, but his application was rejected by the Supreme Court. The Committee also noted that the State party has not refuted the author's claim that one of these judges, L.V., who was the chief investigating judge in the Francoism case, showed a lack of impartiality throughout the proceedings, in particular by repeatedly assisting the applicants in changing the indictment against the author (paragraph 5.9 of the Views).
Based on the information provided by the author (See; paragraph 5.9 of the Considerations), it is concluded that the author's doubts about the impartiality of the courts that issued the decisions are objectively justified and, therefore, these courts could not appear in the eyes of a reasonable observer as sufficiently impartial to make their decision (paragraph 5.10 of the Considerations).
Having considered, in the light of all the information provided, the author's actions in the second case, the Committee was unable to conclude that his interpretation of the legislation constituted prohibited conduct or serious incompetence that could justify his conviction under a criminal article and his subsequent final dismissal from office. In addition, the Committee considered that the author's conviction was arbitrary and unpredictable, since, in violation of article 15 (paragraph 1) of the Covenant, it was not based on sufficiently clear, precise and precise provisions unambiguously defining prohibited conduct (paragraph 5.17 of the Views).
The Committee's conclusions: The facts presented indicated a violation by the State party of articles 14 (paragraphs 1 and 5) and 15 of the Covenant (paragraph 6 of the Views).