Provocation and insolence

As he awaits the verdict on the prison phone taps placed on the organizers of the Gürtel corruption network and their lawyers, who were suspected of connivance in the laundering of funds hidden in Switzerland, on Tuesday Judge Baltasar Garzón appeared for the second time in a few days before the Supreme Court, on this occasion to face trial for the proceedings he initiated in connection with the crimes of the Franco regime.

Garzón stands accused of overreaching his powers when attempting to give a legal response, in the terms of democratic Spain, to the families and associations of victims of the Franco regime who wish to recover the remains of their relatives, which still lie in common graves throughout Spain.

Apart from the recklessness of the lawsuit- being charged as it is with apology for and defense of a dictatorial regime of cursed memory for many Spanish people- it also has a tone of provocation and insolence, which is hard to accept in democratic Spain. Indeed, the ideological profile of the plaintiffs has relevance here: an association that looks back with nostalgic yearning to days of Franco (Manos Limpias), and a political group of fascist orientation (Falange Española, later expelled from the proceedings), which long served as a political façade for the dictatorship, bringing together a variety of right-wing factions in the semblance of a single party.

The overtly fascist ideological tone of the legal action has contaminated the proceedings from the start, and is causing serious damage to the international image of Spain.

There is a possibility that the spectacle will be brought to an end sooner rather than later. Garzón's defense on Tuesday adduced two reasons: the application of the so-called Botín doctrine, developed and used by the Supreme Court itself, according to which oral proceedings cannot be initiated solely at the instance of a private accusation, without a public accusation on the part of the prosecutor, and without the existence of injured parties. And, secondly, the strange actions of the examining magistrate Varela, who advised the plaintiff association on how it should write up the accusatory text in such a way as to avoid the shelving of the proceedings.

Garzón is accused of having assumed a power of jurisdiction that he did not possess. But this would have to be determined after studying the complaint and resolving the questions that it poses: whether or not it was well founded; whether the Amnesty Law of 1977 was applicable and compatible with the Historical Memory Law; and whether the crimes came under a statute of limitations or were of a permanent nature.

All these were questions that needed to be cleared up in the course of the proceedings, so that none of the judicial decisions made in connection with them could in any way be termed an overstepping of the powers of a judge.