Supreme Court decision in the “Garzón 2” (or the NY University courses) case

Continuamos con las traducciones al inglés de algunos post con este relativo al segundo procedimiento abierto al juez Garzón, el de los cursos de la Universidad de Nueva York. (Los editores).

Supreme Court decision in the “Garzón 2” (or the NY University courses) case

In his decision of February 13th 2012, the examining magistrate decided not to seek the opening of a trial, considering as he did that the statute of limitations had run out on the charges brought against judge Garzón. A reading of this interesting decision (in Spanish) practically leads us to the same final conclusion as that reached when we discussed the “Garzón 1” case.

Let’s start with a brief overview of events, although we must be rather more prudent here, as we do not – nor shall we – have a judgement setting forth proven facts. This is admitted by the magistrate, who speaks of facts which are “sufficiently demonstrated”, yet always “at a circumstantial level”. Nonetheless, there are some which have a greater probative value than others, whether this be because they were admitted by the defendant, or unanimously confirmed by the witnesses, or because there is abundant documentary evidence which nobody disputes. The latter are as follows:

In the year 2005, Garzón asked several Spanish companies to make a donation to New York University in order to finance a course he was helping to organise as its director. This event consisted of a series of conference talks to be held in the King Juan Carlos I of Spain Center at said university. These companies were Banco de Santander, BBVA, Telefónica, CEPSA and ENDESA. Except for the latter, what they all held in common was that they had all been under investigation, with their executives facing accusations in different courtrooms within the National Court (a division of the High Court), including that of Judge Garzón. At least in one case, that of ENDESA, the request for collaboration was sent in an envelope with the letterhead of the defendant’s court. Some months after these donations (e.g. the Santander bank contributed 327,000 dollars), and once Garzón had returned from his sabbatical to his magistrates’ court, he did not refrain from hearing the case brought by Mr Pérez Escolar against Mr Botín and other executives from the bank, but then decided to shelve it. Nor did he inform the public prosecutor or the parties of this possible reason for ruling himself out.

There then follows a list of other facts that the examining magistrate deems duly demonstrated “at a circumstantial level”, despite being denied by the defence. For example, that the donated money ended up indirectly benefiting the judge – via the payment of speaking fees by the University, a personal assistant and schooling fees for his daughter – to the tune of 1,237,000 dollars.

Given all this, the magistrate goes on to analyse the possible criminal classification of the facts and reaches the following conclusions:

1. There is no «prevaricación» (wilful delivery of an unfair decision) in the case brought against Mr Botín, given that this type of offence specifically requires the decision to be unfair, in the sense of some radical divergence from current legislation (as already commented in the previous post) and the fact is that, in this case, the rejection of the lawsuit was confirmed by the corresponding courtroom at the National Court in 2007. Thus, this classification is untenable.

2. In this same case, there is no «cohecho propio» (bribing a public servant to commit an unjust act), as there are no data to back up the idea that this contribution was made precisely so that Garzón would decide to reject the lawsuit, i.e. “to undertake an act inherent in his post”, as required in Art. 420 of the Spanish Penal Code.

3. There is no extortion (in the case of ENDESA), given that, while the letterheaded envelope could induce respect, this does not suffice to presume that ENDESA paid due to intimidation. In my view, this case is the most delicate issue. If a professor asks a multinational for money for something like this and they give it to him, this is simply a miracle. If an examining magistrate asks and they give it to him, I feel the rules of nature have not suffered so much. It is true that the companies deny any form of pressure and declare that they paid in a totally selfless fashion. However, it must be said that the magistrate (and not the prosecutor) is right when he affirms that their testimonies are, paradoxically if you want, not very relevant. Among other things because, as the magistrate points out, if they had said anything else, they risked suffering “immediate legal consequences”. I believe that anyone who has had to conduct disciplinary proceedings knows how difficult it is to get third parties to collaborate, even in the case of supposed victims, precisely for this very reason.

4. There is «cohecho impropio» (bribing a public servant), but it is out of time. It is «cohecho impropio», as it is a gift offered in consideration of his position. This is where it is of great importance whether or not the money indirectly returned to Garzón, precisely the question over which the parties argued, although the examining magistrate has no doubts in this regard. In any case, the period of prescription has expired; over three years (the limit is now five years) had passed between the final payment and the presentation of the lawsuit.

The conclusion one can draw is the same as in the previous case. Regardless of whether or not the judge’s actions constitute an offence, things should not have had to reach this point. Even assuming the truth of all the declarations made by the judge and by the aforementioned companies, which would mean exonerating the former of any criminal liability (as regards both coercion and bribery), we cannot deny that his conduct is reprehensible, both morally and ethically. An examining magistrate in the National Court – through which all the characters of Spain’s national dramas will sooner or later parade – cannot go around asking the most important companies in this country for money, even if it were for the Sisters of Mercy. And, if he does so, he cannot conceal this fact from the public prosecutor, given that it is a possible motive for objecting to a judge, whenever a case involving one of the donors arrives on his desk. This would obviously only be possible where someone believes (albeit in good faith) that they are above the law. And if someone believes this, it is because nobody ever initiated disciplinary proceedings against them, with the threat of sending them to the back of beyond, long before things got totally out of hand. It is true that the examining magistrate struggles to conceal a long-standing grudge and, maybe, if Garzón had not been condemned for the wire-tapping case, he would not have passed up the chance to make the extortion charge stick. But what all this really reveals is that, in the absence of a disciplinary regime and Courts of Honour (prohibited perhaps too hastily by the Spanish Constitution), as a shrewd observer pointed out in the previous post, the Supreme Court has decided to take up the gauntlet. But I don’t feel this is good news either.

(Este post ha sido traducido por L-DOS TRADUCCIONES: [email protected])