Former judge was unfairly tried and sentenced for his involvement in political cases – violation found

Facts

The author is a national of Spain. He was a judge and magistrate for a long period during which he investigated and decided upon cases of a particular political significance. One, called the “Franquismo case” related to crimes committed during the dictatorship of Franco, and the other, called “Gürtel case” regarding corruption in the Spanish “Partido Popular”. The author claimed that he was victim of persecution and repercussions as a result of his investigations, which led certain affected individuals to bring legal claims against him. He also claimed that the tribunals that tried him as a result lacked impartiality, as he was never presumed innocent, he was not permitted to present very relevant evidence to his defence, and that he had no opportunity to appeal. He firstly claimed that he was tried under an interpretation of the crime of prevarication that severely deviates from the Spanish Supreme Court’s jurisprudential precedent. Secondly, that the criminal trial against him, his subsequent suspension as a judge, and the fact that he was sentenced in a “Gürtel case” violated his rights to a fair trial. Lastly, that he was not provided an effective remedy.

The author claims that the State party has violated his rights under articles 14(1),(2), (3), (5), 15, 19, 26 of the Covenant with regards to the cases brought against him. He also claims that his right to effective remedy enshrined in article 2(3), was breached as the lack of available appeal made him unable to remedy the violations alleged against him and to discontinue the proceedings against him.

Admissibility

All admissibility issues were sufficiently sustained as the consideration of the case on admissibility inevitably warrants findings on the merits. The Committee proceeded. 

Merits

With reference to article 14(1), the Committee was asked to assess whether the court that tried the author for the offences of prevarication provided sufficient guarantees to be considered an independent tribunal. The Committee, citing its General Comment 32, sustained that the principle of judicial independence requires that the judge, as well as the prosecutor, should be able to interpret and apply the law, and to evaluate facts and evidence freely without being subject to intimidation, obstruction or interference in the exercise of their function.  A judge should not be subject to criminal or disciplinary action based on the content of his or her decisions, except in cases of serious crime, corruption, misconduct or incompetence rendering their unfit for office, and in accordance with procedures that respect fair trial guarantees. Miscarriages of justice should be corrected by review of the decision by a higher court. In light of the “Franquismo case”, the Committee noted that the undisputed facts relating to the author’s reasoned decisions do not warrant his acquittal as decided in Supreme Court judgement 101/2012 of 27 February 2012, as his decision was ‘at least a plausible interpretation of the law’. Turning on the “Gürtel case”, the author’s conviction for the offence of prevarication based on the author having requested the interception of communications, even if erroneous, did not constitute serious misconduct or incompetence that could justify his criminal conviction, but rather a possible interpretation of the applicable law. This was concluded with reference to the endorsement of the author’s decision by the other judges and Public Prosecutor’s Office and support of case law that followed the decision against the author. Regarding the author’s claim of impartiality of the Spanish courts that tried him, the Committee noted that the author challenged the impartiality of two judges that tried him in the “Gürtel case” and that both cases were heard and decided almost simultaneously, resulting in similar outcomes. Particularly in the “Franquismo case”, the Committee observed that the chief investigating judge was allegedly impartial by repeatedly assisting the complainants in amending their indictments against the author. Hence, by reference to Lagunas Castedo v. Spain, para. 9.8,  the Committee concluded that the author's doubts about the impartiality of the sentencing courts are objectively justified.

Turning on article 14(5) allegations, relating to the author’s conviction by the Supreme Court in the “Gürtel case” without possibility of appeal, the Committee recalled that the expression ‘as prescribed by law’ in the Covenant is not intended to leave the existence of the right to review to the discretion of States parties as previously decided in Jesús Terrón v.  Spain, para. 7.4 , General Comment 32, paras. 25-47 and Alberto Velásquez Echeverri v. Colombia, para. 9.4. Hence, citing Scarano Spiso v. Venezuela , para. 7.11, the fact that the author was tried by the highest court of the country is incompatible with article 14(5) unless the State party had entered a reservation to the latter.

Finally, the Committee had to determine whether the author's conviction in the “Gürtel case” based on an allegedly unforeseeable interpretation of the criminal offence of prevarication constituted a violation of article 15(1). The Committee found the author's conviction was arbitrary and unforeseeable as it was not based on sufficiently explicit, clear and precise provisions defining precisely the prohibited conduct, referring to Baumgarten v. Germany, para. 9.3 and General Comment 29: state of emergency (article 4), para. 7. This is because Article 446 of the Spanish Criminal Code applied in the litigation does not define the scope of ‘unjust’ in consideration of a judgement or decision. Further, the author’s decision could not have been unjust as the Public Prosecutor's Office did not dispute the author’s interpretation and the judge that succeeded him in the “Gürtel case” extended and even expanded the interception of the defendants' communications. The Committee noted that Article 118(4) of the Spanish Criminal Procedure Act 2015 confirmed the author's position by allowing exceptions to the confidentiality of communications "where there is objective evidence of the lawyer's participation in the criminal act under investigation or of his or her involvement with the defendant or accused in the commission of another criminal offence".

The Committee concluded that the State party violated the author’s rights to equality before the courts, to have his criminal sentence reviewed by a court of higher instance, and to not be punished for a criminal offence that did not exist at the time of being committed under articles 14(1),(5) and 15 of the Covenant.

Recommendations

The State party is under an obligation to provide the author with an effective remedy. The State party is obligated to take appropriate steps to provide Mr. Garzón with:

• declaring his trial null, nullifying also his pre-trial detention.
• in case that another case be brought against the author, ensuring that this will take place with all the fairness guarantees under article 14 and with access to effective remedy under article 2(3) of the Covenant.
• Condemn the author with an adequate indemnity.

The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Separate Opinions

Concurring opinions

Gentian Zyberi and Hernán Quezada Cabrera: Note that the remedy should have included full restitution of the author to his office.

José Santos Pais: Responded to the above that the Committee’s remedies are appropriate and no additional remedy is necessary.

 

Partially concurring, partially dissenting

Vasilika Sancin: In order to comply with the principle of legality under article 15(1), the text of the Spanish law should be read with the Spanish Supreme Court’s interpretation. Hence, at the time of the alleged commission of the offence by the author, he knew of the Supreme Court’s interpretation, not making their decision manifestly unfair. Hence, the interpretation of the criminal offence by the Spanish courts is not in violation of article 15(1).

Implementation

Deadline for follow-up report on implementation: 13 January 2022.

 

Author: Laura Cestaro