Garzon Goes After Another Pinochet

by Gregory Gordon

[This is a guest post by Professor Greg Gordon of the University of North Dakota.  Professor Gordon is the Director of the UND Center for Human Rights and Genocide Studies, an expert on international criminal law and a past guest blogger at Opinio Juris.]

Earlier this week, Spanish National Court Judge Balthazar Garzon initiated money laundering proceedings against the widow of deceased Chilean dictator Augusto Pinochet, as well as Pinochet’s former lawyer and two of his bankers. In connection with the probe, Garzon has ordered the suspects to post a $77 million bond, indicating the bond is to “cover whatever financial liabilities might arise” in his probe. The four suspects, along with Banco de Chile, have ten days to pay the bond. If they fail to pay, Garzon has threatened to seize from their bank accounts the amount of the bond, plus an extra third – a total of approximately $103 million. The order, which did not reveal where the accounts are held, is meant to extract payment to “cover whatever financial liabilities might arise” in Garzon’s probe.

Judge Garzon’s actions raise a slew of interesting legal questions, both substantive and procedural, as well as policy questions about the appropriate scope of universal jurisdiction. First, and most fundamentally, under what authority is Garzon proceeding? Reports indicate that the probe arises out of Garzon’s original 1990s human rights universal jurisdiction (UJ) case against Pinochet that resulted in the Chilean dictator’s 1998-1999 detention in the United Kingdom. I have been unable to access Judge Garzon’s order but it is not readily apparent from the 1990s charges, which included allegations of genocide, torture, terrorism, and crimes related to forced disappearances, how the money laundering piece fits in.

Spain’s original 1985 UJ law, recently amended, extended the courts’ criminal jurisdiction to certain named crimes, for example genocide, terrorism and piracy, as well as “any other [criminal act] which, according to international covenants and treaties, should be prosecuted in Spain.” According to the Center for Justice and Accountability, pursuant to this law, “any serious crime that violated international law could be heard in Spanish courts as long as it met certain procedural safeguards.” Should money laundering be considered a “serious” violation of international law?

Perhaps the money laundering is linked to terrorism financing but that raises a whole host of separate questions. Pinochet’s financial crimes appeared to be strictly self-enrichment motivated but, even it they weren’t, can over $100 million legitimately be tied to DINA human rights depredations or Operation Condor? This amount seems more likely tied to Pinochet’s personal plundering of the Chilean fisc – not disappearances and torture. And the bond seems like a strange way to go about things. Garzon is essentially telling the suspects they need to freeze their own assets. If there is probable cause to believe the accounts have criminal proceeds in them, why not just seize them? In legitimate money-laundering cases, one would think officials would be loath to tip off suspects trying to sequester ill-gotten funds in the first place. Apparently, Spain’s MLAT options are quite limited.

In any event, assuming the money can be reasonably connected to jus cogens crimes, the case seems to raise pretty compelling issues regarding the scope of universal jurisdiction. Critics have pointed to cases initiated against figures such as Colin Powell and charged that UJ is being abused, with too few procedural or equitable restraints. In light of these concerns, should we also consider an expansion of UJ’s rationae materiae? Should offenses ancillary to jus cogens crimes, such as money laundering, be the subject of universal jurisdiction? If the answer is yes, how closely should the assets be connected to the crimes? Moreover, should a judge in a universal jurisdiction case be able to seize allegedly tainted assets in advance of rendering a judgment on the merits? If so, what should be the standard of proof justifying pre-trial seizure? Garzon has threatened to seize an extra third of the account contents if the bond is not posted by the requested date. This seems excessive and arbitrary. Bonds should be used to secure personal presence; not to mete out punishment.

Finally, I also wonder whether we should be concerned that the 1998 case lingers on. Reports state that the money laundering portion of the case was initiated in 2007, a year after the death of Augusto Pinochet, the principal target of the 1998 case. The 1998 case included other defendants but their relationship to Pinochet’s widow and the allegations of money laundering is not yet clear.

This may be more than an academic point since Spain’s recently amended UJ law is much more restrictive — requiring, inter alia, relevant links to Spain. In particular, the new law bars jurisdiction if another “competent court or international Tribunal has begun proceedings that constitute an effective investigation and prosecution of the punishable acts.” Chile has been conducting its own investigation into the Pinochet family’s finances. Perhaps the defendants could move to sever the 2007 claims from the 1998 case due to the tenuous connection to a deceased defendant. Although this seems like a stretch, if there were a dismissal without prejudice of the 2007 claims and a new case were filed (not tethered to the 1998 matter), Chile’s ongoing Pinochet family financial investigation might then foreclose Garzon’s money-laundering inquiry under the new Spanish UJ law.

Of course, none of this means that authorities should not pursue legitimate avenues of redress. Augusto Pinochet was a brutal dictator who tortured and murdered thousands of innocent civilians during his bloody seventeen-year reign of terror. It is deeply disturbing that he died before he could be tried for his crimes in a court of law. And it would be wonderful if his surviving victims could, as Garzon intends, share as reparations the money Pinochet looted from the Chilean people. But basic principles of fairness and justice should never be trampled on in the process. As Spain and Chile go forward, let us hope the proper balance can be struck.

http://opiniojuris.org/2009/12/03/garzon-goes-after-another-pinochet/

6 Responses

  1. This seems like it might be a little out of Garzon’s jurisdiction, does it not?

  2. It is trite law that states other than a state where a crime is commited can prosecute where; the crime is designed in another state, at this point it gives that state territorial jurisdiction. Secondly, the crime in question is committed by nationals of another state, at this point, the state can prosecute its own nationals. Thirdly, where the victims include those with another nationality, allowing the state to prosecute under what is known a passive personality. Lastly, where the crime in question is very grave,such as genocide, piracy,crime against humanity, war crimes, toture and forced dissapearance, the world community is availed jurisdiction to prosecute. This principle is linked to the idea that certain international norms are erga omnes, or owed to the entire wolrd community, Jus Cogens, that certain obligations are binding on every state.

    The above principles where the basis for Judge Garzon’s original 1990 Human Rights Universal jurisdiction case against the former dictator. He is  best known for having Pinochet arrested  in London in 1998, trying ultimately in vain to put him on trial in Spain. That he will suceed this time around is highly debatable and unimaginable. The question i want to ask myself like many others as Professor Gary Gordon asks is whether money laundering is too serious a crime to tolerate jurisdictional arbitrage? This in my opinion is going to another academic exercise. It migth also interest us to know that Judge Manuel Valderrama, who is currently investigating Pinochet in Chile recently said, while evidence of embezzlement of funds by military official existed, nothing as yet was linked to the Pinochet’s widow.

  3. I think there is no legal basis for Garzón´s new action.
    I´ve read the art 23 LOPJ (Ley orgánica del poder judicial: Judiciary act), which regulates criminal jurisdiction of spanish courts, again and again and I can´t find anything about money laundering.  It´s true that 23.4 h) confers spanish courts jurisdiction to judge “any other [criminal act] which, according to international covenants and treaties,  (…), should be prosecuted in Spain.”  However, the rule requires a treaty to give jurisdiction  to Spanish courts. So if a crime (no matter how abominable) is not included in the 23.3 or 23.4 list and there is no treaty which gives jurisdiction to spanish courts, judicial proceedings can´t even be initiated. In other words, Spanish Law doesn´t give jurisdiction to our courts for any serious crime that violated international law, but only for these ones expressly included in LOPJ or international treaties.   

    I acknowledge I´m not an expert on international law, but I don´t know any provision in conventions ratified by Spain which confers our courts jurisdiction to try (foreigner) responsible for money laundering committed abroad. And it´s difficult to see links between crime of terrorism and financial crimes (allegedly) commited by pinochet family. It seems to me they are common tax evadors (robbers, if you prefer) who –of course- must be tried and convicted (if found guilty), but it isn´t a mission for Spanish Courts.

    Pinochet´s victims must be compensated for damages he caused them, of course, but this is not the proper way.

     

  4. Two questions still remain in my mind: 1) whether Judge Garzon’s actions represent an open protest of the Spanish parliamentary decision to limit UJ?  2) whether Judge Garzon’s assumption of universal jurisdiction (UJ) over money laundering case can be associated with his perceived failure of the Chilean justice system to properly investigate and prosecute the alleged crime?
     
    1. I suspect this is Judge Garzon’s open protest of the Spanish parliament’s decision on June 25, 2009 to narrow universal jurisdiction for Spanish courts to exercise UJ over egregious crimes committed outside Spain only when Spanish citizens are affected and when no other competent court has began proceedings.  Parliament limited UJ due to Spain’s pressure from the U.S., China, and Israel to drop cases against their high profile government officials for alleged U.S. torture at Guantanamo, alleged war crimes in Gaza in 2002 by Israeli forces, and for China’s crackdown of Tibetans, respectively.
     
    Parliament’s introduction of an effective link principle to UJ is not a favorable development to human rights activists including Amnesty International.  The judge’s direct disregard of the new resolution may be ideal for purposes of reparation from a victims’ perspective as backed by human rights activists.
     
    However, the proper space to demonstrate this dislike of the new law may not be through the court with an actual case that tramps the principles of fairness and justice as Professor Gordon has ably argued. In any case, lobbying the same parliament and the respective governments which applied pressure on Spain would have been ideal to maintain the integrity of the judge, Spanish justice system and indeed the preservation of universal jurisdiction. 
     

    2.  I am not aware if the Chilean justice system has been incompetent to adequately investigate and prosecute the money laundering case it initiated. Even so, the judge’s move still leaves a lot to be desired in relation to the future direction of UJ in international law.

     
     

  5. I appreciate the thoughtful feedback.  I especially appreciate having native Spanish speaker Juan Jose’s confirmation that Article 23 of the Organic Law does not appear to include authorization for a money laundering prosecution.  Even if it could be shoehorned into the moribund 1990s case (which seems problematic), there’s still the issue of the punitive bond.

  6. I haven´t read Garzón´s order, but press reports tell it comes from the criminal complaint filed in 1998 that was amended in 2004 and 2007. I still think there is no link between terrorism and genocide and these financial crimes allegedly commited by Pinochet and his family, but I´d like to read his order..
    On the other hand, though I agree with Professor Greg Gordon about which should be the bond purpose, the fact is that LECrim (Ley de Enjuiciamiento Criminal: Spanish Criminal Procedure Act) regulates bond not only as a way of securing personal presence (in fact, as an alternative to preventive detention: arts 529-544 LECrim) but also as a precautionary measure to guarantee economic obligations ex delicto (including damages and fines: arts 589-621 LECrim), which is why it´s common for defendants to be required to give bond before oral hearing. This last kind of bond can´t be less than a third of amount of possible economic obligations ex delicto (art 589 LECrim), and, if accused refuses it, court will seize his assets (art 597 LECrim).
    According to press reports, I assume bond required by Garzón is the second one (to insure economic obligations ex delicto); if it´s true, I don’t see anything wrong in Garzón’s order (only in this point, as you suppose, because as I previously wrote, in my opinion Spanish courts lack jurisdiction to try these crimes).    
     
     
     
     
     
     
     
     
     

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