The Supreme Court does not consider binding the opinions of the UN such as the one that protects Garzón

The Supreme Court does not consider the opinions of the UN Human Rights Council binding or executive, such as the one that last Wednesday protected former judge Baltasar Garzón, considering that he did not have a fair trial when he was prosecuted and convicted of prevarication in February 2012, and for which they demand that the former magistrate receive "full reparation." Unlike the judgments of the European Court of Human Rights, which since 2015 can lead to the review of a final sentence handed down by a Spanish court, the resolutions of the different United Nations Committees do not allow the annulment of a sentence imposed. in Spain, according to judicial sources.

On February 10, 2012, the high court sentenced Garzón to 11 years of disqualification for prevarication for authorizing in 2010, when he directed the Court of Instruction 5 of the National High Court, the recording of the conversations in prison between the leaders of the plot Gürtel of corruption with his defense lawyers. In this case, which separated him from the judiciary, the magistrate was only accused by the affected lawyers, while the Prosecutor's Office requested his acquittal.

Three weeks before, Garzón was acquitted by the Supreme Court in another case for prevarication, derived from his efforts to investigate the crimes of the Franco regime, despite being covered by the Amnesty Law of 1977. In this case the public prosecutor did not accuse him and even He maintained that the case had been opened to him "because he is who he is." A few days after Gürtel's conviction, the Supreme Court magistrate Manuel Marchena, today president of the Criminal Chamber, filed the case against Baltasar Garzón for sponsorship of courses at New York University by prescription.

The UN Human Rights Committee, in a decision notified this Wednesday, observes that the trials against Garzón in the Gürtel and Franco cases were "arbitrary" and "did not comply with the principles of judicial independence and impartiality." In the case of wiretapping of Gürtel's lawyers, the committee, made up of 15 jurists from around the world with training in human rights, considers that Garzón's decision, “even assuming it was wrong (…) did not constitute serious conduct or incompetence that could justify his criminal conviction ”.

The group of experts maintains that the short time elapsed between the two trials —18 days— and the fact that there were Supreme Court magistrates who intervened in both processes, despite the fact that the challenge against five of them was admitted, allows us to deduce that Garzón “ he did not have the right to be tried by an impartial tribunal ”. In the specific case of Gürtel, the Committee emphasizes that the conviction for prevarication against Garzón was "arbitrary and unpredictable" as it was not based on sufficiently explicit, clear and precise legal provisions, in reference to article 446 of the Penal Code, on the crime of prevarication.

International jurists also consider that Spain violated Garzón's fundamental rights by not having an appeal, since he was tried and sentenced by the Supreme Court, the highest Spanish judicial instance. Therefore, the Committee, which interprets the International Covenant on Civil and Political Rights, ratified by Spain in 1977, considers that the State “has the obligation” to “erase the criminal record” of the former judge and to “provide him with adequate compensation for the damage suffered ”. It is the first time that the Committee has pronounced and condemned a State for the use of criminal law against a judge within the framework of its functions, thus establishing new jurisprudence, according to the body itself. Garzón has already announced this Thursday that, after receiving the protection of the UN group of experts,is going to ask for reinstatement to the judicial career.

"Does not bind under any circumstances"

However, the path to this is by no means automatic.

Supreme Court sources assure that the UN Committee, unlike the European Court of Human Rights (ECHR), "is not a jurisdictional body" and its resolutions, unlike those of Strasbourg, "do not bind in any case" to Spanish justice.

"The opinion is not a cause for review of the sentence under any circumstances," say sources from the high court.

The reform of the Criminal Procedure Law of 2015 introduced the possibility of reviewing a final judgment, such as Garzón's, when the European Court of Human Rights declares that Spain has violated the fundamental rights of the appellant and the effects of this violation are only can be revoked by reviewing the sentence. Garzón sued Spain in 2015 before Strasbourg, but according to sources in Strasbourg, his claim “was declared clearly inadmissible” on June 25, 2015, which was communicated by letter to his lawyer on July 2 of that same year. Previously, the Spanish Constitutional Court had rejected his appeal for protection.

The jurisprudence of the Supreme Court on the non-binding nature of the decisions of the UN Committee for Spanish courts is constant. “None of the provisions of the Covenant, nor of the Optional Protocol, grants the Committee jurisdictional power in the event of impossible conciliation” and “it is evident that Article 2.3.a of the Covenant does not give rise to a private remedy that may affect final resolutions”, affirmed the Criminal Chamber in December 2001. In April 2018, another order recognized that the “opinions and recommendations” of the Committee “serve as an undoubted reference to its courts when carrying out their function”, but “lack a direct effect ”.

The Supreme Court's reviews of sentences are carried out by a special chamber made up of the president of the high court, the presidents of the five chambers and the oldest and most modern magistrate of each of them. In February 2020, this chamber met to resolve a request for review by a person who had received protection from the UN Human Rights Committee and who claimed that this would have the same effect as a Strasbourg ruling. The claim was dismissed: "It is not appropriate to equate the judgments of the ECHR with the recommendations or opinions of the different Committees of the various international organizations that rule on compliance with the obligations assumed by Spain in the field of human rights," stated the court. "Spanish law only attributes to the judgments of the ECHR,and under certain conditions, the condition of qualifying title for an appeal for review against a final judicial decision (…) without extending that kind of effectiveness to other sentences or opinions ”, he concluded.

However, the resolutions of the various UN Committees sometimes do have effects. In 2018, the Contentious-Administrative Chamber of the Supreme Court ordered the State to pay compensation of 600,000 euros for moral damages to a woman whose ex-partner murdered their common daughter during one of the visits that a Madrid court established after their separation, after denouncing him 47 times for mistreatment. The court then established that the resolutions of the UN Committee against Discrimination against Women (CEDAW) may be applicable in Spain by way of a claim for abnormal functioning of the justice system, not as a review of the sentence. Thus, the Supreme Court forced the Administration to comply with the CEDAW Opinion of July 16, 2014,that it obliged the State to grant adequate reparation and comprehensive compensation proportional to the seriousness of the violation of his rights for not having complied with his duty of diligence.