Flaws in Spanish Democracy?
The Spanish case is often referred to as a model of a successful democratic transition. After the civil war of 1936-1939 and the subsequent Franco dictatorship until 1975, the Amnesty Law of 1977 and the new constitution of 1978 contributed to a peaceful transition to democracy. But two developments are causing flaws in it: (1) the politically motivated campaign against Baltasar Garzón, the well-know judge of the Audiencia Nacional (the Spanish high court handling terrorism, genocide, and organized crime), and (2) the crusade against the Catalan autonomy statute.
A special peculiarity of the Spanish judicial system is its principle of universal jurisdiction, which allows the Audiencia Nacional to pursue cases of human rights abuses, drug trafficking, and terrorism outside of Spain. And although the universal jurisdiction has recently been limited to cases in which there are Spanish victims or those charged with crime are in Spain, Garzón achieved considerable international successes. The most noted one is certainly the indictment of former Chilean dictator Augusto Pinochet and his arrest in London in 1998, where he remained under house arrest for more than 500 days before returning to Chile following his release on humanitarian grounds. There, he faced legal action for human rights abuses, but was never convicted. Garzón also forced Argentinean President Néstor Kirchner to end a general amnesty for the military junta after investigating human rights violations committed during the “dirty war” of 1976-1983. In Spain itself, he is highly recognized for his relentless pursuit of ETA, the Basque separatist organization terrorizing the country since the early 1960’s. But today, the General Council of the Judicial Power, Spain’s constitutional body governing all the judiciary of Spain, suspended Garzón from his post at the Audiencia Nacional. He is now facing trial for trying to do in his own country what he has already done in many others – investigating crimes against humanity, namely the disappearance of more than 100,000 people the during the civil war and the early years of Franco’s dictatorship. Since these crimes are covered by the 1977 amnesty law, he is being accused by the right-wing groups “Manos Limpias” and “Falange de las JONS” of abusing his powers by launching Spain’s first-ever investigation into Franco-era abuses and therefore allegedly overstepping his authority. The argument against that, however, is that under international law, amnesties for crimes against humanity are illegal. Principle 24(b) of the UN Commission on Human Rights’ Principles For The Protection And Promotion Of Human Rights Through Action To Combat Impunity says that amnesties shall be without effect with respect to the victims’ right to reparation, “even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation.” While the UN Commission on Human Rights warned Spanish authorities about that fact in several occasions, nothing was done to address this problem. The result is the paradoxical and shameful situation where the first person ever being on the accused bench in relation to Franco-era abuses is the judge who actually wanted to investigate them. The hopes raised among the civil war and dictatorship victims when, in 2008, Garzón announced that he would investigate the crimes were smashed today. After more than 30 years of building and consolidating democracy in Spain, this is a significant backstep.
On a different topic, the controversy about the Catalan autonomy statute (“Estatut”) is still ongoing. More than 3 years have passed since it was first published. It has been democratically approved by the Catalan regional parliament, by the Spanish national parliament, and by the Catalan voters through a referendum. The Estatut is now awaiting the ruling of the Tribunal Constitucional, Spain’s constitutional court. The Spanish right-wing Popular Party (“Partido Popular”) argued that the Estatut was unconstitutional, among other things due to the reference to Catalunya as a “nation” (…but that’s a topic for a separate post…), and that the majority of the Spanish people don’t approve it. Well, in Spain, the people are represented by the parliament, and that one approved the Estatut in it’s original form. Isn’t that how democracy works? In any case, “it will be the first time since the restoration of democracy in 1977 that a tribunal will make a decision on a law that has been fundamentally approved by voters.”…another democratic backstep.
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