When Spain’s Supreme Court voted on March 25 to proceed with a case against investigative magistrate Baltasar Garzón for "judicial prevarication," or knowingly overstepping his judicial authority, it set the stage for a high-stakes battle in which the heirs of a violently repressive political party may well unseat a democratic judge for daring to take seriously the complaints of that same party’s victims.
Garzón, 54, who sits on Spain’s Criminal Court, has earned international fame for his groundbreaking, high-profile criminal cases against prominent figures across the political spectrum—from the late Chilean dictator Augusto Pinochet and Osama bin Laden to Basque terrorists and Bush administration officials. But the star judge now finds himself on the other side of the bench, facing a possible twenty-year suspension that in effect would end his career.
Brought against Garzón by extreme right-wing splinter groups, the case rests on arcane and nearly inscrutable legal minutiae, such as the lawfulness of indicting the dead or whether kidnappings from seventy years ago can be considered ongoing crimes, immune to a statute of limitations. In Spain’s judicial system, investigative magistrates enjoy extraordinary autonomy, and they often function as both prosecutors and judges, choosing and building their own cases and assuming responsibility for everything from fact-gathering and interrogation to preventive detention. Taking full advantage of this autonomy in pursuing Spain’s doctrine of universal jurisdiction—which stipulates that the nation’s domestic courts may try foreigners for international crimes of unusual gravity regardless of where they were committed—Garzón has, in the past dozen years, further expanded the investigative magistrate’s reach. In so doing he has revolutionized international law by redefining the terms of legal accountability for world leaders. His pioneering efforts have ensured, for example, that Donald Rumsfeld and Henry Kissinger have to think twice before boarding a plane to Europe.
But Garzón’s boldness has also led Supreme Court Justice Luciano Varela to allege that the "superjudge," as he is often dubbed in the media, has overplayed his hand. This case asserts that Garzón exceeded his legal authority when, in October 2008, he began to investigate as crimes against humanity the torture, forced disappearance and murder of some 114,000 Spanish civilians by supporters of Gen. Francisco Franco during the country’s civil war (1936–39) and the early years of Franco’s dictatorship. The 1977 amnesty law that laid the foundation for Spain’s peaceful transition to democracy after the general’s death in 1975 had long prevented legal prosecution of such acts. But Garzón, who focused on the deeds of Franco and thirty-four members of the dictator’s government, claimed that crimes against humanity were not covered by the country’s "pact of forgetting."
Garzón began his inquiry in response to the pleas and legal briefs made by family members of Franco’s victims, many of whose bodies still lie in unmarked graves throughout the country. In so doing he initiated an intricate legal game that is ultimately a proxy for the longstanding and divisive ideological battle over Spain’s recent past. The charges against Garzón were first brought by Manos Limpias (Clean Hands), an ultraconservative public-servant trade union created in 1995, largely to pose legal obstructions to investigations of Franco-era crimes. Another right-wing organization, the newly created Asociación Libertad e Identidad, soon became the second plaintiff. Any doubts about the case’s political meaning, regardless of its legal complexity, were erased when the original plaintiffs were joined by the Falange Española, Franco’s own Fascist (and the dictatorship’s only legal) party, which in the 1930s and ’40s was responsible for much of the killing denounced by Franco’s victims.