Interview about Garzón with a Judge Magistrate of Spain’s National Court

May 17, 2010

“There are acts of revenge, and power struggles which in the end trump everything else.” An interview with José Ricardo de Prada, Judge Magistrate of Spain’s National Court

Natalia Junquera [Translated from El País, May 16, 2010]

He arrived to the National Court four years after Baltasar Garzón, in 1990, after having served as an Investigative Judge in Bilbao. José Ricardo de la Prada (Madrid, 1957) was on the panel of judges in 1998 that dealt with the cases in Argentina, Chile and in the Pinochet affaire. Between 2005 and 2007 he was the Magistrate for war crimes in the Court of Bosnia Herzogovina. He now participates, as an expert in International Criminal Law, in a European Union project aimed at advising judges and prosecutors in Colombia.

On Friday he went out on to the stairs of the National Court to bid farewell to Baltasar Garzón, and he tells us that Monday will be the most difficult day of his professional career. He voted in favor of Garzón’s authority to investigate the crimes of the Franco period, the case in which his colleague has been accused of the crime of abuse of judicial authority [prevaricación]. He accepts this interview because he is concerned, “as a Judge and as a citizen” by what he says is “the profound ability that Justice has to cause injustice..”

Question: How do you feel?

Answer: I’ve gone from anger on Friday, to desolation. I am deeply demoralized, not just in terms of myself, but in terms of my profession, which has been pretty much my whole life over these last 25 years. This goes way beyond Garzón. We all know that we assume risks in our profession, but this goes way beyond that. There are, in the middle of all this, acts of vengeance and power struggles which, in the end, trump everything else. This is the second time that I bid farewell to beloved companions who have been expelled from the National Court for similar reasons, and I’m not sure I can stand a third time. I don’t now how I can don the robe on Monday, as if nothing has happened, because in cases like these what one realizes is that justice has a profound ability to bring about injustice.

Question: Like the Judges Clara Bayarri and Ramón Sáez Valcárcel you voted in favor of Judge Baltasar Garzón’s authority to investigate Francoist atrocities. If Garzón is guilty of abusing his judicial authority, are you guilty as well?

Answer: I voted in favor of the jurisdiction of the National Court because I’m totally convinced that the Court has jurisdiction. We explained our reasoning in a dissenting opinion, which I think is very solid, though I’m afraid few people have read it. Baltasar Garzón is applying a line of law which is shared not only by the three of us who voted in favor of his thesis, but also of many other magistrates and jurists of other countries, including our oun Constitutional Court, all of which agree with that value of International Law that protects human rights against the most serious attacks. In a word, it is a law against barbarity. Surprisingly, in the curricula of Spanish Judges, nothing is taught about this law, very much unlike what occurs in other countries right near us. For example, in the school for magistrates in France, this subject does form part of the curriculum for judges, and at times they invite judges from Spain and other countires.. Next September there will be a course in Paris on Law against barbarity.
What we’re dealing with is a discrepancy of opinions, a confrontation among different ways of seeing and understanding the law. I don’t care who claims otherwise: taking a side in these discrepancies and confrontations cannot be considered a crime. It is simply a matter of a judge exercizing the freedom of interpretation of juridical norms; that freedom is at the heart of judicial independence and is in complete accordance with our constitutional model of the rule of law.

Question: What does the National Court lose with Baltasar Garzón’s departure?
Answer: A good Judge, without a doubt, and for those of us that work there, a magnificent coworker [compañero]. Baltasar Garzón is a good person. Spanish Justice, in general, will probably lose a lot more. One can disagree with him, but one must also acknowledge his many, many merits. He has been the protagonist of unique episodes in the history, not only of Spanish jurisprudence, but of global jurisprudence, and many of us judges and prosecutors have had the good fortune to accompany him. I had the professional good fortune of taking part in the Tribunal that judged the Sciliingo Case, relating to the Argentine dictatorship, and I drafted the sentence. Without the investigation carried out by this judge [Garzón], the conviction wouldn’t have been possible. I sincerely hope that the Supreme Court will figure out how to assess properly this situation and make things right once again.

Question: The main argument used against Garzón’s decision to open an investigation into Francoist crimes has been the Amnesty Law. What is your opinion about the application of that law?

Answer: Of course with regard to the Law of Amnesty I believe that it had its value and importance in the moment of its creation. I have had occasion recently to analyze several cases, and the application or non-application of the Law of Amnestry to certain situations is the source of some confusion right now. Its applicability to certain situations in this current moment requires very careful analysis. In any case, there is no way that this law can be given the value that some claim for it, as if it were a law of “punto final” or “full stop law” which precludes and impedes any investigation into the crimes of the past. That would be, at the very least, unconstitutional. My opinion is that the Law of Amnesty is entirely inapplicable in the case of certain crimes. I’m referring specifically to the crime of genocide, crimes against humanity, war crimes, which go well beyond the mere political crimes that are addressed in the Law of Amnesty. To take this position in the context of a legal case is perfectly defensible, and really, I don’t think it has anything to do with the crime of “abuse of judicial authority”