The Garzon Case and a Global Climate of Attacks on Judicial Independence

[Helen Duffy  runs Human Rights in Practice (www.rightsinpractice.org), and represents Baltasar Garzón in proceedings before the UN Human Rights Committee. She is also Professor of Human Rights and Humanitarian Law at the University of Leiden.]

Judicial independence is under serious attack around the globe. On 15 October 2020 the UN Special Rapporteur on the Independence of Judges and Lawyers presented his report on sanctioning judges, revealing myriad ways in which judges are being intimidated, harassed or otherwise impeded in the exercise of judicial functions, with insidious effects. The day before, 14 October 2020, I filed final submissions to the UN Human Rights Committee (UNHRC) in the long-running Baltasar Garzón v. Spain case, which challenges the prosecution of a judge for his judicial decisions. As the Garzón case epitomizes a number of rule of law challenges of current global concern, including those in the Special Rapporteur’s report, this piece offers a few reflections on the correlation between the case and the report.

The UN Special Rapporteur’s report makes clear that sanctions against judges take many forms. They may be civil, criminal or disciplinary, direct or indirect, overt or “disguised.” The diverse ways in which judges can be punished, pressured, stigmatised and have their independence infringed, requires attention to a wide range of issues, from tenure, appointment processes and conditions of service, to whether and when judges can be disciplined, how, and according to what processes and safeguards. The practice upon which the report is based reflects the prevalence and diversity of the problem, as seen also in the growing number of regional human rights cases in recent years concerning judges suspended from judicial office or subject to disciplinary proceedings (see report para. 10). The report notes that “sanctions can never be imposed on judges to harass, punish or otherwise interfere with the legitimate exercise of a judge’s professional activities.”

Among the most serious forms of sanction highlighted in the report is criminal prosecution of judges for reaching unfavourable, or allegedly “unjust,” decisions. This practice has, perhaps unsurprisingly, been rare in Europe (and most everywhere else) but is troublingly on the march in various contexts. An example that brings this into sharp focus is the rule of law crisis in Poland, where resort to criminal prosecution of judges in recent years has been rightly and roundly condemned, by the Special Rapporteur among others. As the European Court of Justice stated in the Polish context, imposing penal sanctions for the content of judicial resolutions is simply “incompatible with the requirements of judicial independence” (see ECLI:EU:C:2019:531 and ECLI:EU:C:2020:277 ).

The Garzón v. Spain before the UNHRC epitomizes that scenario, and highlights some of the challenges. While this is not the place for extensive discussion of the case, suffice to recall briefly that it concerns a series of simultaneous criminal prosecutions of a judge who had served in the Spanish judiciary for 31 years, based exclusively on his judicial decisions. It is not in dispute that the ‘crimes’ in question consisted solely of his judicial interpretation of the law (there was no other evidence). It is also clear that they involved politically controversial issues in Spain, on which there were a range of different views as to the law, and approaches to its interpretation (including the role of international law in the interpretation of national standards). The first prosecution of Judge Garzon was based on his decision to authorise preliminary investigative steps into the crimes against humanity of the Franco-era – crimes that remain impune in Spain today – on the basis that the Spanish amnesty law was not applicable to such crimes. In a second case, ‘Gurtel,’ he was convicted and removed from judicial office for 11 years, for allowing limited interceptions of prisoner-lawyer communications, in face of indicators of criminality and subject to steps to protect the rights of the defence, in a case of high level political corruption. (Incidentally the Supreme court upheld convictions in this case, also last week.) As with many issues of law, these were matters of debate and legitimate differences of views as to applicable law. But the decisions in question were good faith, reasoned and reasonable ones, supported by a number of other judges, the public prosecutor’s office, academics and beyond. Yet, remarkably, they led to judge Garzón being removed from the bench and put in the dock.

It has been contended that those decisions were ‘erroneous.’ But, as we have submitted in response, the delivery of erroneous decisions, even if indeed they were, is a basis for appeal, not criminal prosecution. In fact both decisions were overturned on appeal (in one case with a split appellate court, showing the controversies involved). Although not relevant or alleged in Garzón’s case, the Special Rapporteur’s report makes clear that if a judge abuses the judicial role, for example through corruption, there are also disciplinary measures that can be taken, subject to safeguards. However, quite a different question, which underlies the Garzón case but has broader relevance, is whether, in a state governed by the rule of law, judges can be prosecuted for unfavourable or controversial judicial interpretations? Is supposed ‘judicial error’ relevant, never mind sufficient, to justify criminal prosecution?

The Special Rapporteur’s report adds its voice to a chorus of evolving standards on judicial independence in answering this question. The report concludes that:

“Judges should … never be held criminally liable for handing down “unjust judgments” or committing legal errors in their decisions” (para. 96).

Put simply, as a spokesperson for the UN High Commission for Human Rights stated in relation to the prosecution of Garzón back in 2012, “Judges should not be subject to criminal prosecution for doing their job.”

The Garzón case, and the UN Special Rapporteur’s report, are only part of much broader discussion on the need to clarify – and to benchmark – what protecting judicial independence requires in practice, including on the appropriate role and limits of criminal law.

One step, towards which the special rapporteur’s report makes an important contribution, among others, is to be clear and robust on minimum international standards and red lines. The report highlights for example, that ‘international and regional standards provide that judges enjoy a certain degree of immunity from civil or criminal jurisdiction’ and underscores the need to ‘shield judges from prosecution or vexatious civil claims’ in respect of ‘activities undertaken in good faith in the exercise of judicial functions’ (para. 84). While there are areas where standards need further defined, as the report acknowledges, at a minimum, penal sanctions for the content of judicial resolutions is beyond the pale.

Domestic law and practice around the globe needs to be brought into line, under effective international oversight. Vague laws in those states that still enshrine crimes that penalise ‘unjust’ judgements, such as the “prevarication” laws in Spain under which Garzón was prosecuted, need to be amended in order to remove susceptibility to abuse. The Special Rapporteur’s report notes that there are ‘few’ states that still have such laws. In one positive development in an otherwise bleak landscape, he ‘notes with appreciation’ that in June 2020 the Ukrainian constitution court declared a comparable provision unconstitutional, ‘stating that the term “unjust decision” was too vague and thus susceptible to undermining the independence of the judiciary’ (para. 51).

Prosecuting a judge for judicial decisions is, as the Garzón case argues, inherently arbitrary, irrespective of the due process guarantees afforded. However, where judges can properly be prosecuted, for offences committed outside their judicial office, or for abuse of that office through bribery or corruption, procedural safeguards must ensure the highest standards of justice and independence are strictly safeguarded: every effort needs to be made, from the process triggering investigation, to submission of evidence, to recusals of judges, to ensure that the fairness and impartiality of any process against a judge is beyond reproach. While judicial rather than executive involvement in any such processes is clearly preferable, the Garzón case shows that, in and of itself, it is not enough. Judicial independence is about more than separation of powers. What was cited as a safeguard – being tried by the apex court – became quite the opposite when he was prosecuted repeatedly by a small cadre of supreme court judges opposed to his judicial approach, and incidentally his politics, with overlapping judges involved in ‘instructing’ or investigating in one case and simultaneously sitting in judgement in another. The right to an appeal needs to be reiterated as one essential fair trial safeguard in all contexts, and certainly no less when judicial independence is at stake. However, in some contexts, as in this, where a judge is prosecuted by the highest court, there is no right of appeal. This has already led to UNHRC finding violations of fair trial rights in cases against Spain (Jesús Terrón c. España (2004)).

The Special Rapporteur’s report makes clear that the prosecution of a judge for interpretations of the law is the tip of the iceberg. Other challenges to judicial independence arise in Spain alone, while globally the report highlights many more ‘disguised’ forms of pressure and interference with the judicial role that must be exposed and grappled with. Judges are being pressured and their independence undermined not only by governments and politicians around the globe, but in some cases from within the judiciary, the media and a host of private actors with axes to grind. The Garzón case is again instructive, as the criminal processes against him were initially triggered by interest groups opposed to the judicial decisions in question (right wing associations supportive of the Franco regime) in one case, and by an individual under suspicion in the other. Unfortunately, the Garzón case also shows us how difficult it is to address violations, even open and notorious (criminal) interference with the judicial role; the violations have still not been remedied and there has been no accountability thus far for Spain. It is hoped that this will change, sending a clear message on the obligation to protect judicial independence, and that (echoing the UN Special Rapporteur’s report) judges should never be held criminally liable for the content of their judgements.

In this respect, the case also reflects another deeply troubling global trend worthy of emphasis. This is the tendency towards ‘overcriminalisation,’ and in particular the corrosive impact on democracy of the use of criminal law as a tool of choice to impede, silence and punish judges, lawyers, academics, journalists and other human rights defenders. This is often done pursuant to vague and ever more expansive criminal laws, as other UN Special Rapporteur’s have done well to expose (see here and here). Criminal law needs to be put back in its place, and its authority preserved as a powerful ultimo ratio for genuinely culpable behaviour. The rights of human rights defenders need to be defended from its overreach. As another judge, Sergio Ramirez of the Interamerican Court, has noted:

‘in an authoritarian political milieu, the criminal law solution is used frequently: it is not the last resort; it is one of the first, based on the tendency to “govern with the penal code in the hand” … the opposite happens in a “democratic environment”: criminalization of behaviours and the use of sanctions are a last resort, turned to only when all others have been exhausted or have proven to be inadequate to punish the most serious violations of important legal interests. Then, and only then, does a democracy resort to punitive measures: because it is indispensable and unavoidable.” (Ulloa v Costa Rica, separate opinion of J. Sergio Ramirez).

If the rule of law depends on protecting the judicial role, it also requires safeguarding the exceptional role of criminal law.

In the original application, Judge Garzón recognized that the exercise of judicial functions is a duty, not a right. Interpreting the law, evaluating and applying it to facts in context, is what this duty, and the judicial function, consists of. If we do not protect judges from the threat of arbitrary prosecution when they do so, it goes without saying that they cannot protect the rights of those who seek justice before them, or the rule of law, at a time when we need it most.