Waking the Dead of the Spanish Civil War: Judge Baltasar Garzon and the Spanish Law of Historical Memory

Abstract

This article considers the controversial proceedings against Baltasar Garzon, Spain’s best-known judge. These proceedings and Garzon's own investigations of the crimes of the Franco era have thrown up a large number of issues about the retrospective application of justice to conflicts, such as the Spanish Civil War, apparently consigned to history. After examining the historical record of the crimes of the Franco regime this article goes on to look at the 2007 law of Historical Memory as Spain’s first transitional measure to face up to this past. It then considers the grounds both in international and domestic law for Garzon’s investigation of these crimes as crimes against humanity. The three major obstacles to such a prosecution — retroactivity of international crimes not clearly defined at the time, the issue whether the crimes are statute-barred and the application of the 1977 Amnesty Law are considered in turn. This constitutes the background to the current prosecution of Garzon for prevaricacion, misuse of judicial powers, and the question whether Spanish amnesty can be overcome by prosecutions in other countries, e.g. Argentina, under their rules of universal jurisdiction.