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For an article on the use of jurisdiction to mean a state or country, see Jurisdiction (area).

Statue titled "Authority of Law" by James Earle Fraser. A single tablet inscribed with "LEX" (Latin for "Law") is held by the figure, which is located to the right of the front steps of the United States Supreme Court Building.

Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote the geographical area or subject-matter to which such authority applies.

Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society.

International Dimension[link]

International laws and treaties provide agreements which nations agree to be bound to.

Political issue[link]

Supranational organizations provide mechanisms whereby disputes between states may be resolved through arbitration or mediation. When a country is recognized as de jure, it is an acknowledgment by the other de jure nations that the country has sovereignty and the right to exist.

However, it is often at the discretion of each state whether to co-operate or participate. If a state does agree to participate in activities of the supranational bodies and accept decisions, the state is giving up its sovereign authority and thereby allocating power to these bodies.

Insofar as these bodies or nominated individuals may resolve disputes in a judicial or quasi-judicial fashion, or promote treaty obligations in the nature of laws, the power ceded to these bodies cumulatively represents its own jurisdiction. But no matter how powerful each body may appear to be, the extent to which any of the judgments may be enforced, or proposed treaties and conventions may become or remain effective within the territorial boundaries of each nation is a political matter under the sovereign control of the relevant representative government(s) which, in a democratic context, will have electorates to satisfy.

International and municipal jurisdiction[link]

The fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate their activities with those of national courts. If the two sets of bodies do not have concurrent jurisdiction but, as in the case of the International Criminal Court (ICC), the relationship is expressly based on the principle of complementarity, i.e. the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent, or as in the case of International Criminal Tribunal for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically.

The idea of universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to states (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium) which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions of public policy). Under Article 34 Statute of the ICJ^[1] only states may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time.

Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those states which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described as realpolitik-based diplomacy.

Within other international contexts, there are intergovernmental organizations such as the World Trade Organization (WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the states affected, save that the WTO is permitted to allow retaliatory action by successful states against those states found to be in breach of international trade law. At a regional level, groups of states can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree of harmonization between their national legislative and judicial functions, for example, the European Union and African Union both have the potential to become federated states although the political barriers to such unification in the face of entrenched nationalism will be very difficult to overcome. Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, the European Court of Justice has been given jurisdiction as the ultimate appellate court to the member states on issues of European law. This jurisdiction is entrenched and its authority could only be denied by a member state if that member State asserts its sovereignty and withdraws from the union.

International and municipal law[link]

The standard treaties and conventions leave the issue of implementation to each state, i.e. there is no general rule in international law that treaties have direct effect in municipal law, but some states, by virtue of their membership of supranational bodies, allow the direct incorporation of rights or enact legislation to honor their international commitments. Hence, citizens in those states can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law:

• Monism

This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in the Netherlands, all treaties and the orders of international organizations are effective without any action being required to convert international into municipal law. This has an interesting consequence because treaties that limit or extend the powers of the Dutch government are automatically considered a part of their constitutional law, for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. In states adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits relying on international law principles.

• Dualism

This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In the United Kingdom, for example, a treaty is not effective until it has been incorporated at which time it becomes enforceable in the courts by any private citizen, where appropriate, even against the UK Government. Otherwise the courts have a discretion to apply international law where it does not conflict with statute or the common law. The constitutional principle of parliamentary supremacy permits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties.

In the United States, the Supremacy Clause of the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law, …the "Supreme Law of the Land" (U.S. Const.art. VI Cl. 2) and, as such, the law of the land is binding on the federal government as well as on state and local governments. According to the Supreme Court of the United States, the treaty power authorizes Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress (Missouri v. Holland, 252 U.S. 416 (1920)).

The jurisdiction between and within states[link]

This concerns the relationships both between courts in different jurisdictions, and between courts within the same jurisdiction. The usual legal doctrine under which questions of jurisdiction are decided is termed forum non conveniens.

International[link]

To deal with the issue of forum shopping, states are urged to adopt more positive rules on conflict of laws. The Hague Conference and other international bodies have made recommendations on jurisdictional matters, but litigants with the encouragement of lawyers on a contingent fee continue to shop for forums.

Supranational[link]

At a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of state courts and to enforce the judgments obtained. For example, the member states of the EEC signed the Brussels Convention in 1968 and, subject to amendments as new states joined, it represents the default law for all twenty-seven Member States of what is now termed the European Union on the relationships between the courts in the different countries. In addition, the Lugano Convention (1988) binds the European Union and the European Free Trade Association.

In effect from 1 March, 2002, all the member states of the EU except Denmark accepted Council Regulation (EC) 44/2001, which makes major changes to the Brussels Convention and is directly effective in the member states. In some legal areas, at least, the CACA enforcement of foreign judgments is now more straightforward. At a state level, the traditional rules still determine jurisdiction over persons who are not domiciled or habitually resident in the European Union or the Lugano area.

National[link]

Many nations are subdivided into states and provinces (i.e. a subnational "state"). Federation (as can be found in Australia, States of Brazil, India, Mexico and the United States) and these subunits will exercise jurisdiction through the court systems as defined by the executives and legislatures.

When the jurisdictions of governmental entities overlap, one another—for example, between a state and the federation to which it belongs—their jurisdiction is shared or concurrent jurisdiction.

Otherwise, one government entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one governmental entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted or restricted only by a number of limited restrictions, these government branches have plenary power such as a national policing power. Otherwise, an enabling act grants only limited or enumerated powers.

The problem of forum shopping also applies as between federal and state courts.

United States[link]

United States Federal Civil Procedure Doctrines
Justiciability
Advisory opinions
Standing · Ripeness · Mootness
Political questions
Jurisdiction
Subject-matter jurisdiction
Federal question jurisdiction
Diversity jurisdiction
Amount in controversy
Supplemental jurisdiction
Pendent jurisdiction
Ancillary jurisdiction
Removal jurisdiction
Class Action Fairness Act of 2005
Personal jurisdiction
In personam
In rem jurisdiction
Quasi in rem jurisdiction
Federalism
Erie doctrine · Abstention
Sovereign immunity · Abrogation
Rooker-Feldman doctrine
Adequate and independent state ground
edit this template

The primary distinctions between areas of jurisdiction are codified at a national level. As a common law system, jurisdiction is conceptually divided between jurisdiction over the subject matter of a case and jurisdiction over the person of the litigants. (See personal jurisdiction.) Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem.

A court whose subject-matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty or suits where the monetary amount sought is less than a specified sum) is sometimes referred to as a court of special jurisdiction or court of limited jurisdiction.

A court whose subject-matter is not limited to certain types of controversy is referred to as a court of general jurisdiction. In the U.S. states, each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. Federal courts (those operated by the federal government) are courts of limited jurisdiction. Federal jurisdiction is divided into federal question jurisdiction and diversity jurisdiction. The United States district courts may hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens.

Certain courts, particularly the United States Supreme Court and most state supreme courts, have discretionary jurisdiction, meaning that they can choose which cases to hear from among all the cases presented on appeal. Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject-matter jurisdiction.

It is also necessary to distinguish between original jurisdiction and appellate jurisdiction. A court of original jurisdiction has the power to hear cases as they are first initiated by a plaintiff, while a court of appellate jurisdiction may only hear an action after the court of original jurisdiction (or a lower appellate court) has heard the matter. For example, in United States federal courts, the United States district courts have original jurisdiction over a number of different matters (as mentioned above), and the United States court of appeals have appellate jurisdiction over matters appealed from the district courts. The U.S. Supreme Court, in turn, has appellate jurisdiction (of a discretionary nature) over the Courts of Appeals, as well as the state supreme courts, by means of writ of certiorari.

However, in a special class of cases, the U.S. Supreme Court has the power to exercise original jurisdiction. Under 28 U.S.C. § 1251, the Supreme court has original and exclusive jurisdiction over controversies between two or more states, and original (but non-exclusive) jurisdiction over cases involving officials of foreign states, controversies between the federal government and a state, actions by a state against the citizens of another state or foreign country.

The word "jurisdiction" is also used, especially in informal writing, to refer to a state or political subdivision generally, or to its government, rather than to its legal authority.^[2]

Franchise jurisdiction[link]

In the history of English common law, a jurisdiction could be held as a form of property (or more precisely an incorporeal hereditament) called a franchise. Traditional franchise jurisdictions of various powers were held by municipal corporations, religious houses, guilds, early universities, Welsh Marches, and Counties Palatine. Types of franchise courts included Courts Baron, Courts Leet, merchant courts, and the Stannary Courts which dealt with disputes involving the tin miners of Cornwall. The original royal charters of the American colonies included broad grants of franchise jurisdiction along with other governmental powers to corporations or individuals, as did the charters for many other colonial companies such as the British East India Company and British South Africa Company. Analogous jurisdiction existed in medieval times on the European Continent. Over the course of the 19th and 20th centuries, franchise jurisdictions were largely eliminated. Several formerly important franchise courts were not officially abolished until Courts Act of 1971.

See also[link]

• Guantánamo Bay Naval Base
• Labor unions in the United States - a different use of the word jurisdiction
• Law enforcement agency - a different use of the word jurisdiction
• Lawsuits against God
• Rasul v. Bush
• Private jurisdiction

Footnotes[link]

External links[link]

Wikiquote has a collection of quotations related to: Jurisdiction

• Cornell.edu
• Supreme Court Decision on the Guantánamo Bay jurisdiction
• Jurisdiction As Property - franchise jurisdiction

Baltasar Garzón
Investigating Magistrate of the Central Court of Criminal Proceedings Number 5
In office 1987 – 14 May 2010
Succeeded by	Fernando Pablo Ruz
Member of the Congress of Deputies
In office 1 July 1993 – 9 May 1994
Succeeded by	Rafael María García-Rico Fernández
Constituency	Madrid
Personal details
Born	(1955-10-26) 26 October 1955 (age 56) Torres, Andalusia, Spain
Nationality	Spanish
Political party	PSOE
Spouse(s)	María del Rosario Molina Serrano
Alma mater	University of Seville

Baltasar Garzón Real (Spanish pronunciation: [baltaˈsar ɣarˈθon]; born 26 October 1955) is a former Spanish jurist who served on Spain's central criminal court, the Audiencia Nacional. He was the examining magistrate of the Juzgado Central de Instrucción No. 5, which investigates the most important criminal cases in Spain, including terrorism, organised crime, and money laundering.

In 1993–94 he was elected a deputy and briefly held a ministerial role in the Felipe González's socialist government. Following his return to the Audiencia Nacional, he led a series of investigations that helped convict a government minister as the head of the Grupos Antiterroristas de Liberación (GAL), a state terrorist group.

Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former Chilean President, General Augusto Pinochet, for the alleged deaths and torture of Spanish citizens.

Garzón was accused of various irregularities by Manos Limpias and finally indicted on three different counts relating to a fraud trial, investigating Francoist crimes and taking bribes. He was suspended from judicial activity on 14 May 2010, pending trial.^[1] He was given permission to work as a consultant at the International Criminal Court in The Hague for 7 months from May 2010.^[2] On 9 February 2012 The Supreme Court of Spain convicted^[3] him of illegally wiretapping conversations between suspects on remand for massive fraud and their lawyers who were believed to be moving their money beyond the reach of the court. The trial judge described this act as appropriate to a dictatorship and sentenced him to eleven years disqualification from judicial activity.^[4]

A few days later, on 12 February, the fraud action was abandoned on a technicality^[5] and he was acquitted of exceeding his authority in investigating the crimes of the Francoist era on 27th February 2012^[6]

Garzón has stated that he will appeal to the Constitutional Court of Spain against his expulsion from the judiciary.^[7][8] He apparently had infuriated^[9] the Spanish far-right Falange^[10][11] and Manos Limpias.^[12]

Background[link]

Born in Torres, Jaén, Garzón was appointed to the Audiencia Nacional in 1988, and rapidly made his name in Spain by pursuing the Basque terrorist group ETA.^[13]

In 1993, he asked for an extended leave of absence as a judge and went into politics, running for the Congress of Deputies (the lower house of parliament) on the party list of then ruling party PSOE. He was also declared head of a strengthened National Plan Against Drugs by Prime Minister Felipe González. He resigned this post shortly after being appointed, however, complaining of lack of support from the government.

Spanish cases[link]

GAL[link]

His investigation in 1987 led to the conviction of José Barrionuevo Peña, the then Interior minister, as head of the GAL, a state terrorist group.

Drug-trafficking[link]

Garzón made his name as a magistrate through several police operations centred on drug-trafficking in Galicia. Colombian cartels, such as the Medellín Cartel, would utilise Galician clans, already accustomed to smuggling in tobacco, to smuggle drugs into Spain. In 1990, Operación Nécora led to the conviction of members of the clan led by Laureano Oubiña. The following year he was involved in another investigation – Operación Pitón – which led to the conviction of members of the Charlines clan.

[edit] Caso Atlético

About 1999 he investigated Jesús Gil, the former mayor of Marbella and owner of Atlético Madrid, on grounds of corruption. Gil was convicted in 2002 and died in 2004.

ETA[link]

Garzón has also presided in many trials against alleged ETA members. In July 1998 he presided in a case against Orain S.A., the Basque communication company that published the newspaper Egin and owned the radio station Egin Irratia. Garzón ordered the closure of both and sent some of the company officers to prison, due to their alleged links with ETA. These charges were later dropped for lack of evidence, and the journalists were released. Many years later Garzón imprisoned them again under the allegation of being part of ETA in a "broader" sense. Egin was allowed to reopen years later by the Audiencia Nacional, after all charges were found without foundation. In February 2003 Garzón also ordered the closure of Egunkaria once again alleging links with ETA (some years later, it was proven that Egunkaria had no links with the terrorist band, but it was too late and the newspaper could never be printed again, the company who publishes it had gone bankrupt) . In October 2002 Garzón suspended the operations of the Batasuna party for three years, alleging direct connections with ETA. In February 2008 he also ordered the ban of two Basque nationalist parties, which had filled the political space of Batasuna: EHAK and EAE-ANV on the same grounds.^{[original research?]}

Francoist atrocities[link]

On 17 October 2008, Garzón formally declared the acts of repression committed by the Franco regime to be crimes against humanity, and accounted them in more than one hundred thousand killings during and after the Spanish Civil War. He also ordered the exhumation of 19 unmarked mass graves, one of them believed to contain the remains of the poet Federico García Lorca.^[14][15]

On 17 November 2008, Garzón said that he was dropping the investigation against Franco and his allies after state prosecutors questioned his jurisdiction over crimes committed 70 years ago by people who are now dead and whose crimes were covered by an amnesty passed in 1977. In a 152-page statement, he passed responsibility to regional courts for opening 19 mass graves believed to hold the remains of hundreds of victims.^[16]

[edit] Caso Gürtel

A major corruption inquiry, code-named "Gürtel" from the name of its ringleader, Franscisco Correa, ("Gürtel" being German for "belt", which is the meaning of "correa" in Spanish), involving bribes to People's Party, was led by Garzón. This inquiry has been transferred to alternative courts following his indictment (see below)

International cases[link]

Garzón came to international attention on 10 October 1998 when he issued an international warrant for the arrest of former Chilean President Augusto Pinochet for the alleged deaths and torture of Spanish citizens. The Chilean Truth Commission (1990–91) report was the basis for the warrant, marking an unprecedented use of universal jurisdiction to attempt to try a former dictator for an international crime. Eventually it was turned down by British Home Secretary Jack Straw, who rejected (on health grounds) Garzón's request to have Pinochet extradited to Spain.^{[original research?]}

Garzón also filed charges of genocide against Argentine military officers on the disappearance of Spanish citizens during Argentina's 1976–1983 dictatorship. Eventually Adolfo Scilingo and Miguel Angel Cavallo were prosecuted in separate cases. Scilingo was convicted and sentenced to over 1000 years incarceration for his crimes.^[17]

Garzón issued indictments for five Guantanamo detainees, including Spaniard Abderrahman Ahmad and United Kingdom resident Jamil El Banna. Ahmad was extradited to Spain on 14 February 2004. El Banna was repatriated to the United Kingdom, and in 2007, Garzón dropped the charges against him on humanitarian grounds.^[18]

Bush Six[link]

In March 2009, Garzón considered whether Spain should allow charges to be filed against former officials from the United States government under George W. Bush for offering justifications for torture.^[19] The six former Bush officials are: Alberto Gonzales, former Attorney General; John Yoo, of the Office of Legal Counsel; Douglas Feith, former undersecretary of defense for policy; William Haynes II, former general counsel for the Department of Defense; Jay Bybee, also at Justice Department's Office of Legal Counsel; and David Addington, Vice President Dick Cheney's Chief of Staff.

However, the investigation was assigned to Judge Eloy Velasco who chose not to pursue it stating that Spain cannot investigate the case unless the U.S. intends not to conduct its own investigation into the matter.^[20] In a U.S. diplomatic cable leaked by WikiLeaks it is revealed that Chief Prosecutor Javier Zaragoza intended to argue that the case should not be assigned to Judge Garzón,^[21] and in a later cable it is stated that Garzón was "forced to give up" the investigation.^[22] It is revealed that Zaragoza had strategized how to force Garzón to give up the case:

"Zaragoza said he had challenged Garzón directly and personally on this latest case, asking if he was trying to drum up more speaking fees. Garzón replied he was doing it for the record only and would let it die. Zaragoza opined that Garzón, having gotten his headline, would soon drop the matter. In case he does not, Zaragoza has a strategy to force his hand. Zaragoza's strategy hinges on the older case in which Garzón investigated terrorism complaints against some Guantanamo detainees. In connection with those earlier investigations, Garzón ordered the Spanish police to visit Guantanamo and collect evidence against the suspected terrorists. Zaragoza reasons that he can use this fact to embarrass Garzón into dropping this latest case by suggesting Garzón in some sense condoned the U.S. approach to detainee issues circa 2004. Garzón took no action in 2004 when the suspects returned to Spain and reported to him their alleged mistreatment. Zaragoza said that if Garzón could not be shamed into dropping the case, then he would formally recommend Garzón do so and appeal if Garzón ignored him."^[23]

On 29 April 2009, Garzón opened an investigation into an alleged "systematic programme" of torture at Guantánamo Bay, following accusations by four former prisoners.^[24] Similarly, the leaked cable indicates that the Chief Prosecutor intended to also fight this investigation and that he feared, "Garzón may attempt to wring all the publicity he can from the case unless and until he is forced to give it up."

According to Andy Worthington, writing in the Huffington Post, Spanish newspaper Público reported in September 2009 that Garzón was proceeding to the next phase of his investigation.^[25] Garzón has repeatedly expressed a desire to investigate former U.S. Secretary of State Henry Kissinger in connection with a plot in the 1970s known as Operation Condor.^[26]

Appearance before the Spanish Supreme Court[link]

The Supreme Court of Spain has declared admissible three criminal accusations against Garzón for 'prevarication' which implies using his authority as a judge to intentionally subvert the course of justice. This is a very serious criminal offense punishable by suspension from any (Spanish) judicial activity for up to twenty years.

Crimes against humanity by Franco’s government[link]

In October 2008, Garzón opened a controversial inquiry into alleged crimes against humanity committed by the Nationalist government during the Spanish Civil War and the years that followed the war. This action was controversial because the offenses were nearly 70 years old, previous to the concept of crimes against humanity, and a 1977 general amnesty act barred any investigations related to criminal offenses with a political aim previous to 1976. In 2008 the inquiry was suspended. In September 2009, a fascist trade union called "Manos limpias" (Clean Hands) filed a lawsuit against Garzón alleging that Garzón had abused his judicial authority by opening the inquiry. Garzón denied any wrongdoing.^[27]

In April 2010, Garzón was indicted by the Spanish Supreme Court for prevarication for arbitrarily changing his juridical criteria to engineer the case in order to bypass the law limiting his jurisdiction.^[28][29] If convicted, he could be barred from his duties for 20 years. Garzón's indictment has been highly divisive within Spain and controversial abroad.^[30] Amnesty International and Human Rights Watch condemned the indictment, and The New York Times published an editorial supporting him, whereas The Wall Street Journal condemned Garzón's proceedings in an editorial supporting the rule of law.^[31] There were public protests in Spain from left wing organizations supporting Garzón.^[32][33]

The International Commission of Jurists considers that his short-lived inquiry did not justify disciplinary action, let alone criminal prosecution, adding that the prosecution of judges for carrying out their professional work was "an inappropriate and unwarranted interference with the independence of the judicial process".^[27]

On 24 April 2010 Garzón presented an appeal to the Supreme Court against the judge investigating the case, Luciano Varela for giving advice to the plaintiffs about the errors in their documents. Garzón accused the judge of partiality, in having "a direct interest in the proceedings and bias in the action" and having "worked closely with the plaintiffs by offering counsel or legal advice" intended help the complainants to correct a defect in their series of indictments to meet a deadline, an action which he defined as "atypical, extra-judicial and prejudicial to one of the parties" (i.e. him, as the accused). According to Garzón, "intervention by the instructing judge is not protected under any provision of the current legal procedural rules and is clearly unrelated to the substantive rules of Spanish court procedure".^[34] Luciano Varela accepted the appeal and temporarily stepped out from the case until the Supreme Court rules on the appeal.

On 11 May 2010 Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court (ICC) requested that the Judiciary of Spain might assign Garzón as a consultant to the ICC for six months,^[35] which would have allowed General Council of the Judicial Power of Spain (La Comisión Permanente Extraordinaria del Consejo General del Poder Juidicial or CGPJ) to avoid suspending Garzón during the impending trial for investigating crimes committed during the Francisco Franco era.

In response, Judge Varela bought forward his conclusion that Garzón should stand trial, and the CGPJ rejected the request of the ICC on the basis that it appeared to be simply a personal request by Moreno-Ocampo, rather than an official ICC invitation. On Friday 14 May 2010 Garzón was duly suspended from judicial activity^[36] (with pay) 'as a precaution, pending judgment' as a result of the decision of Judge Varela, which suspension is formally required by Spanish law. The CGPC subsequently declared that it would require five different certificates ('informes' in Spanish) to release Garzón to the ICC as a consultant for six months during his period of suspension from judicial activity. These were:^[37]

• That the public prosecutor (which opposes the trial of Garzón) certify that there would be no conflict of interest
• That the Supreme Court of Spain (hearing the case against Garzón) would not be delayed or inconvenienced
• That the ICC certify the appointment would not provide immunity for Garzón from either outstanding or future criminal process in Spain
• That Spain's Ministry of Foreign Affairs and Cooperation declare the appointment of Garzón to be in the national interest of Spain
• That the Secretary General of the CGPJ was satisfied that all of the above certificates were appropriate and legally valid for this temporary assignment.

José Manuel Gómez Begresista, the president of the CGPJ's Commission for Studies and Reports, impugned each of the above five conditions, which he characterized as 'ridiculous' since Garzón had previously been assigned to such work, and no immunity from Spanish law attaches thereto. He went on to state that the decision taken by the CGPJ "lacked any legal grounds whatsoever".^[38]

Later that day, the CGPJ authorised the assignment of Garzón to the ICC.

Coincidentally, on the same day, The Grand Chamber of the European Court of Human Rights in Strasbourg delivered final judgement in the case Vassili Kononov v. Latvia No. 36376/04, on 17 May 2010.^[39]

The Russian Federation had maintained that any prosecution of the applicant was statute-barred, as supported by the dissenting opinion of Judge Costa joined by Judges Kalaydjieva and Poalelungi, which is essentially analogous to the basis of the prosecution of Garzón: under "Article 15 of the European Convention on Human Rights no derogation is permissible and In conclusion, [the dissident judges] consider that, in respect of Article 7 of the European Convention on Human Rights

• (a) the legal basis of the applicant's [previous] prosecution and conviction was not sufficiently clear in 1944;
• (b) [the current legislation] it was not reasonably foreseeable at that time either, particularly by the applicant himself;
• (c) prosecution of the offense was, moreover, statute-barred from 1954 under the applicable domestic legislation;
• (d) and, as a consequence, the finding that the applicant's acts were not subject to statutory limitation, thus resulting in his conviction, amounted to retrospective application of the criminal law to his detriment."^[40]

However, in the prevailing and joint concurring opinion of judges Rozakis, Tulkens, Spielmann and Jebens, (Para No. 6 "the right approach, [] is that Article 7 of the Convention and the principles it enshrines require that in a rule-of-law system anyone considering carrying out a particular act should be able, by reference to the legal rules defining crimes and the corresponding penalties, to determine whether or not the act in question constitutes a crime and what penalty he or she faces if it is carried out. Hence no one can speak of retroactive application of substantive law, when a person is convicted, even belatedly, on the basis of rules existing at the time of the commission of the act." ^[40] Since the Spanish State of Franco had laws against kidnapping and killing, it might be difficult to argue that these acts were legal, even if they were directed by (Francoist) state officials, particularly as Garzón convicted the PSOE government officials promoting the GAL assassination squads.

Impartiality questions[link]

On 17 December 2010 Garzón challenged five of the seven Supreme Court justices that could be appointed to judge him for his activities in respect of the exhumation of Franco victims.^[41]

He alleges that Juan Saavedra, Adolfo Prego Oliver, Joaquin Giménez, Francisco and Juan Ramon Berdugo Monterde should be disqualified from officiating in any way because they have participated in pre-trial activities and thus may have an interest in the outcome that might affect their impartiality. These five judges have intervened in the investigation of the case, and the defence claims that consequently – and according to a strict interpretation of the principle of nemo iudex in causa sua – such intervention demonstrates these five judges an indirect interest in the outcome of the process.

The background to this case is that conservative opinion generally asserts that "the dictatorship" is past, and exhuming its less savoury activities is injurious to modern Spanish political interests (as may be Garzón's extraterritorial attempts to accuse foreign nationals of crimes against humanity).

Certainly founding members of the People's Party, such as Manuel Fraga, were members of Franco's government, and there may be a fear that the more aggressively socialist opposition may wish to use these exhumations to imply thereby the intentions of modern Spanish political leaders may be less than entirely democratic, and that established political entities may seek to influence the course of justice (for example – between 2005–2010 – when the PP and PSOE denied the Spanish Senate the necessary majority to approve fresh judges for the Constitutional Court of Spain)^[42]

Banco Santander corruption allegation[link]

The allegation is that Garzón archived (adjourned sine die) a case against the director of Santander, Emilio Botín, in return for payment for some courses sponsored by the bank in New York between 2005 and 2006.^[43]

This appeal to the Supreme Court follows a charge previously archived by the criminal court on 27 November 2006, since the alleged 1.2 million euro fee was deemed by the lower court to be in fact 216,000 euros, which was not paid to Garzón, but to the university foundation.^[44]

This Supreme Court corruption case against Garzón was archived^[45] on 13 February 2012, on the next but one working day after Garzón's conviction for bugging the Gürtel corruption suspects.

The Supreme Court Investigating Judge insisted that there was clear evidence of wrongdoing involving some 2.5 million US$, but, because the complaint was originally laid on the 12 June 2009, but the last payment was made in May 2006 the 3-year statute of limitations relating to the Supreme Court had been exceeded by 25 days. It was not clear why the case, previously archived by a provincial court on 27 November 2006 was not referred back to the lower court where a 15-year statute of limitations applies provided there is disclosure of 'further and better evidence'which might then lead to a jury trial.^[46]

Allegation of improper eavesdropping[link]

The accused in a corruption inquiry, code-named "Gürtel", sought to have evidence against them ignored. The accused are asking that the evidence be ruled inadmissible, since it was obtained from conversations between prisoners and counsel, which, under Spanish law, it is claimed, is allowed only in terrorism-related cases.^[47]

Politicisation of the judiciary[link]

Since June 2010 Garzón has worked as a consultant to the ICC. and the legal processes were left in abeyance.

At the end of October 2010, the re-election of Judge Juan Saavedra to the Spanish Supreme Court Penal Division reactivated the three judicial processes against Garzón. The re-appointment of a right-wing judge may have suggested to the Spanish legal authorities that the complaints had sufficient weight to merit continuing the domestic process despite the rulings in the European Court of Human Rights cited above.^[48]

The alleged "political colonisation"^[49] of the Spanish judiciary is an increasingly recurrent theme in the Spanish centre/left-wing media. More than 1,500 Spanish judges earlier this year criticised the influence of the major parties in the decisions of the Supreme Judicial Council (CGPJ) via a manifesto that for the first time exposed publicly what was claimed to be a long-standing open secret among Spanish lawyers.^[50]

In a recent book^[51] Garzón admits that he has at times exceeded the provision of domestic Spanish legislation (as in this case) but quotes external sources, including treaties that were unratified at the time.

Supreme Court trial[link]

On 9 February 2012, the Supreme Court ruled that judge Baltasar Garzón was guilty of illegally ordering the placement of wiretaps in jailhouses to record conversations between inmates and their lawyers in a case of corruption. Under Spanish law, such wiretaps are only expressly permitted for terrorism cases and the legality of their use in other cases is more vague. The Supreme Court also barred Garzón from the legal profession for 11 years. The court said: "Garzón's methods are typical of totalitarian countries, without any respect of the right of defence."^{[citation needed]} Since he can not appeal the charges, his career as a judge is likely to have ended.^[52] He was also fined €2,500.^[53] People protested the trial and ruling outside the court with banners calling for "justice" and photos of the people said to have been killed by the Franco regime.^[54] Many other judges also came out in support of Garzón.

Given the severity of the accusations against the Supreme Court, a large number of persons and institutions issued statements in support of the ruling. The progressive Judges for Democracy association stated that "The Supreme Court and any other criminal court can only be asked to apply the law and respect the presumption of innocence. This must be both in determining the facts and in interpreting the norm. Whether or not one agrees with the Court's decision and the interpretation on which it is founded, we must state that the Supreme Court has ruled in this context and should not be disqualified as such an institution for it."^[55] Margarita Robles, member of the General Council of the Judiciary and former Subsecretary of State with the socialist government, said that the Supreme Court ruling was "legally impeccable" and had been produced as part of a procedure "with all the guarantees."^[56]

Bibliography[link]

• Cuento de Navidad: es posible un mundo diferente (Christmas tale: A different world is possible) Ediciones de la Tierra (2002)
• Un mundo sin miedo (A world without fear) Plaza & Janes, S.A. and Debolsillo (February 2005)
• Prologue of ¿Y si mi hijo se droga? Claves prácticas para prevenir, saber y actuar (And if my son uses drugs? Practical tips to prevent, know, and act) Begoña del Pueyo, Alejandro Perales (Editorial Grijalbo) (June 2005)
• La lucha contra el terrorismo y sus límites (The fight against terrorism and its limits) Adhara Publicaciones, S.L. (February 2006)

• (French) Denis Robert, La justice ou le chaos, Stock, 1996. Interviews and portrait of seven anticorruption judges: Bernard Bertossa, Edmondo Bruti Liberati, Gherardo Colombo, Benoît Dejemeppe, Baltasar Garzón Real, Carlos Jimenez Villarejo, Renaud Van Ruymbeke

See also[link]

• Carmelo Soria, Spanish diplomat assassinated in 1976 by the Chilean DINA
• Command responsibility
• Universal jurisdiction

References[link]

External links[link]

• Biography at SpainView
• Judge Garzón: Introduction to a Life, article at Stanford
• BBC News – Profile: Judge Baltasar Garzon
• Judge Garzon Support Page
• Baltasar Garzón y José María Mena en Canal-L: "El crimen organizado siempre busca espacios de impunidad"