Spanish Judge Baltasar Garzon may have been convicted and banned from Spain’s judiciary for the next 11 years, but that doesn’t mean he can’t—in theory--use his prosecutorial prowess in the world’s international courts.

By Lauren Comiteau, Hilversum

When the Spanish Supreme Court Thursday unanimously convicted Judge Garzon for illegally taping privileged conversations between defence lawyers and their jailed clients in a 2009 corruption case, the 11 years disbarment they sentenced him to in effect put an end to what had been an illustrious career in his home country of holding the powerful to account—from former dictators (Chile’s Augusto Pinochet) to terrorists (Bin Laden and ETA) to top Spanish politicos.

Garzon himself has vowed to fight on, even though the Supreme Cuort decision cannot be appealed. "I reject the sentence head-on," Garzon said in a statement. "My rights have been systematically violated." His lawyer says they are considering appealing to Spain's Constitutional Court and, possibly, the European Court of Human Rights.

“I will turn to the appropriate legal channels to fight this sentence and carry out all pertinent actions to try to mitigate the irreparable harm that the authors of this sentence have inflicted," he said. The wiretaps -- which were backed by state prosecutors -- continued after Garzon passed the case in March 2009 to Madrid's High Court.

Exile to the Nethelands

In fact he hasn’t been working in his home country since being suspended from his duties in May 2010, after which chief prosecutor of the International Criminal Court, Luis Moreno Ocampo, asked him to work as a consultant for the ICC.

“Judge Garzon’s extensive experience in investigating massive crimes committed by States and non state organisations will be a great contribution to my office,” Prosecutor Moreno Ocampo said at the time. The judge had already been working with prosecutors on their prelimary investigations in Colombia.

After leaving the ICC in June 2011, he became an advisor to the Mission to Support the Peace Process (MAPP) in Colombia of the Organization of American States.

While the prosecutor’s office didn’t return repeated RNW requests for comments on Thrusday’s decision, other legal experts are weighing in on whether Garzon’s ban from the Spanish judiciary prevents him from working in other jurisdictions, including international ones such as the ICC.

“If he were private counsel, then he would have a duty to disclose the matter to the Registrar and then she would decide whether he should remain on the list of Counsel entitled to practise at the ICC,” says defence lawyer Nick Kaufman, who points out that since Garzon was employed by the OTP and not practising as Counsel, he wasn’t bound by the Code of Professional Conduct.

As far as Garzon being a judge at the court, Kaufman says no way. “He would fail on the grounds of Article 36(3) of the Rome Statute in so far as it cannot be said that he is of ‘high moral character, impartiality and integrity possessing the qualifications required in his respective state for appointment to the highest judicial office’."

Politically motivated?

But others in the legal community say the charges against Garzon have nothing to do with his legal skills or character but are politically motivated. In addition to his conviction for abuse of power for ordering the wiretaps, he is on trial in a separate case for investigating abuses committed during the 1939-1975 reign of Spanish dictator General Francisco Franco. There is also a third case pending against the judge concerning alleged bribe-taking.

“Judges should not be prosecuted for doing their job,” Rupert Colville, spokesman for the UN High Commissioner for Human Rights, said Friday, referring to the Franco-era case.

Geert-Jan Knoops, an international defence counsel and professor of International Criminal Law at the University of Utrecht in The Netherlands, says while there’s no doubt a legal element to the wire-tapping conviction (in Spain such tapings can only be ordered in terrorism cases), Garzon’s being banned from his profession for over a decade is “quite harsh.”

“It’s very rare for judges to be prosecuted. Maybe they’re asked to step down, but seldom is a case launched against a judge,” says Knoops, who says that other judges worldwide have been found guilty of overstepping their judicial authority. “But we’ve never seen in any other countries in Europe that it resulted in a ban from practicing.”

That sentence is one reason, says Knoops, that could lead people to think the prosecutions against Garzon are political. Other reasons could be that prosecutors never wanted to bring the case in the first place, and that all seven justices unanimously agreed on the conviction.

Scandal

But just because Garzon has been banned from practicing in Spain, it doesn’t mean that he can’t work elsewhere. “The judgement of the Spanish Supreme Court only covers the territory of Spain,” says Knoops, who adds that it is theoretically possible that Garzon could convince a court such as the ICC that his conviction was politically-motivated and thus not legitimate.

But Spain is a State Party to the court and one of its staunch supporters, and if the ICC were to ignore the country’s Supreme Court rulings, says Knoops, it could lead to “a legal and political battle” between the ICC and Spain. “Even if the ICC was willing to close its eyes to this conviction, is the ICC willing to risk such a scandal?”

That question may be premature. With two more cases against him, it’s still early days for Garzon's legal battles.