Something thoroughly nasty is going on in Spain. Judge Baltazar Garzón is facing in the Supreme Court, a charge from three ultra-right groups that he has knowingly exceeded his powers in accusing Franco and 34 of his generals and ministers of crimes against humanity.
When Franco died in 1975, there was an unofficial pact called olvido, a deliberate collective "forgetting" in which both sides of the civil war were seen as jointly responsible for the atrocities committed during the Civil War of 1936-39. The following 36 years of fascist rule involved the forced disappearance of around 115,000 people from the Republican side, and one consequence of the olvido was that their whereabouts remained unknown.
In 1977, an amnesty was granted to both sides so that it became impossible to prosecute those who had carried out the repression. Although some thought that paved the way for a transition to democracy without recriminations, many of the institutions of the state continued largely unchanged, including the judiciary.
When the Law of Historic Memory was passed in 2007, the thousands of families of victims of the fascist repression were granted rights and practical support in tracing what happened to their relatives. Garzón became a key player in the campaign to trace the victims ordering the opening of mass graves. For the first time since Franco's death, families could try to find their missing relatives.
But Garzón has a long history of courageously opposing corruption, drug cartels, Basque separatist terrorists, and has used international law to issue an arrest warrant for the Chilean ex-dictator Pinochet. He has campaigned for the rights of those in Guantanamo. All in all, he has established a huge international reputation as an outstanding investigating magistrate. But he has ruffled a lot of very right-wing feathers, people of ultra-right views still in positions of power in Spanish society. He has faced death threats and campaigns of personal attacks for years.
The charge now against him is effectively one of abuse of power, initiating investigations which he knew he was not entitled to pursue. The charges have been levelled by three ultra-right groups: the Falange Español de las Jons who are the successors of the fascist Falange under Franco; Manos Limpias, an ultra-right group led by Miguel Bernard, ex-leader of Frente Nacional; and Libertad e Identidad, an ultra-right group from the Malaga area. At least one historian has identified those behind the accusations as the same people who were behind the failed coup attempt in February 1981.
In recent months, the mainstream right-wing party, Partido Popular (PP) has been the subject of extensive corruption investigations in which many local PP and some senior politicians have found themselves on the way to jail, and Garzón has been behind some of the cases. The PP has complained that it has been unfairly singled out by Garzón and it hopes that Garzón will now be forced to drop the cases.
The case is very serious for political rights in Spain because if Garzón is convicted, he will be barred from public service and employment for at least ten years and up to 20 years, meaning the end of the career of the 54-year-old magistrate. Supreme Court magistrate Luciano Varela has decided to charge Garzón under article 446.3 of the Penal Code rather than the lesser article 447 which would have carried a maximum ban of six years.
In addition Varela has rejected the evidence of international jurists offered in Garzón's defence on the grounds that accepting international legal testimony would be a desconsideración (literally a "thoughtlessness") of the Supreme Court Code. He has further accused Garzón of "creative imagination" in finding justification for organising the exhumation of the mass graves. Varela is well known as an ultra-conservative as is the whole of the Supreme Court apparatus.