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Of Garzón, Guzmán, and Graves: Understanding Post-transitional Justice Trajectories in Spain and Chile

Lisa Hilbink

Associate Professor of Political Science University of Minnesota

hilbink@umn.edu

Paper prepared for the 2012 meeting of the International Political Science Association, Madrid, Spain, July 8-12.

** DRAFT: Please do not cite without the author’s permission.**

Analysts often point to the parallels in the (post-WWII) political histories of Spain and Chile, including their “pacted transitions” to democracy in the late 1970s and late 1980s, respectively. In both countries, regime change took place through negotiation within an established institutional framework, giving the outgoing regime a prominent role in the process. In both countries, there were no purges to democratize state institutions (the personnel of military, the police, and the judiciary thus remained the same). In both countries, the balance of power was such that any immediate move to hold authoritarian-era officials accountable for human rights violations was deemed impossible. And in both countries, amnesty laws stood as major impediments to any efforts to the prosecution of human rights abuses under the former regime.

Today, however, Spain and Chile stand in stark contrast in terms of the way in which transitional justice processes have unfolded. Although critics point to many shortcomings in the (still on-going) process of confronting and condemning the violence and injustice of the Pinochet dictatorship,1 Chile’s progress in terms of legal recognition, investigation, and prosecution of authoritarian-era crimes is quite remarkable, and is in sharp distinction to Spain’s record in this regard. In Chile, two separate commissions (the so-called Rettig Commission (1991) and Valech Commission (2004)) have documented, first, the several thousand murders and disappearances, and, later, the tens of thousand of cases of torture committed by state agents during the Pinochet regime. Even more striking, Chile is now the country that has gone furthest in holding authoritarian officials criminally accountable for human rights abuses under the preceding authoritarian regime. Although Pinochet himself died without having been convicted of any crime, he was famously stripped of his senatorial immunity and indicted in the Caravan of Death case by Judge Juan Guzmán in 2000.2 Moreover, as of July 2011, Chilean courts had tried 771 cases of human rights violations, handed down 245 sentences, and imprisoned 66 agents of the military regime (Observatorio 2011). In Spain, meanwhile, there have been no prosecutions of state agents nor any sort of a truth

                                                                                                               1 Roht Arriaza on “consumer satisfaction problem”?? FIND 2 Before his death, the general was indicted in several other cases as well (see Collins 2010: 141). All of this, of course, followed the general’s arrest and detention in London upon the extradition request of Spanish Judge Baltasar Garzón. Most analysts agree, however, that Garzón’s actions didn’t produce but rather served to expedite the domestic accountability process against Pinochet and other military regime officials (Hilbink 2008; Collins 2010; Pion-Berlin 2004).

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commission on the atrocities of the Franco regime, and most recently, when the champion of retrospective justice, Judge Baltasar Garzón, sought to open an investigation into the fate of over 100,000 victims of Francoism, he himself faced prosecution for abuse of office.3 Although he was ultimately absolved of this charge, the Spanish Supreme Court made quite clear that documenting the fate and addressing the rights of the victims and their families, at least without evidence of a living perpetrator, was not the appropriate purview of criminal courts.

What explains this marked contrast in (post-)transitional justice outcomes in two countries that are so often compared and, via Garzón, explicitly linked? More specifically, why have there been no trials for authoritarian-era human rights abuses in Spain,4 while Chile is the international leader in this regard? It is tempting to infer, and, to be sure, some have claimed, that the answer is that Chilean judges are more liberal, more progressive, more committed to the rule of law, or simply braver than their “very conservative” Spanish counterparts (Aguilar 2012: 331).5 Yet while judicial attitudes are relevant to the explanation for the divergent post-transitional justice outcomes in the two countries, it is a mistake to view them as independent factors, reflecting the personal values/substantive political commitments of each country’s judges. Instead, they must be understood as endogenous to and reflective of the much broader social, political, and legal context in which judges are embedded.

In this paper, then, I contend that the contrast in (post-)transitional justice trajectories between Spain and Chile has its roots in important contextual differences at three levels.6 First, and most broadly, significant differences in the nature of the transition in the two countries meant that pro-democratic political and judicial actors in each entered the post-authoritarian period with fundamentally distinct views of the relationship between law/legality and democracy. In Spain, becoming democratic meant embracing and remaining true to basic legal principles that had been trampled under Franco, particularly though not exclusively in the spheres of public and criminal law. These principles were embodied in the new (1978) constitution, which was the first in Spanish history to represent a broad, plural consensus. In Chile, by contrast, becoming democratic meant working to soften, limit, and ultimately change, a constitutional edifice imposed by and inherited from the authoritarian regime. These very different frames shaped the outlooks of politicians and judges keen on contributing to the consolidation of democracy, outlooks which both reflected and were reinforced by the second major difference between the two countries: the long-time presence in Chile and near absence in Spain of legal mobilization around authoritarian-era                                                                                                                3 The charges were brought by several Far Right organizations through a mechanism of private prosecution, the acusación popular, not by the government. In fact, the attorney general’s office opposed the prosecution. Details are provided below beginning on p. XX. 4 It should be noted that, as of the drafting of this paper, judicial investigations have been opened and are ongoing in several cases of kidnapped babies (niños robados) from as late as the 1980s, and the (rightwing) government of Mariano Rajoy has recently agreed to form a commission to investigate these (El País cites). 5 I have heard this same claim from a variety of acquaintances inside and outside of Spain, and it is a view strongly fueled by the newspaper El País over the past several years. Some even go so far as to say that this is evidence that Francoism is alive and well in the Spanish judiciary. 6 These different contextual factors can be tied to differences in the timing of events (atrocities and eventual transitions) in the two countries, as well as to the different political histories that preceded them. Due to space constraints, however, I do not enter into an analysis of these historical/timing factors here.

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human rights abuses. As both Aguilar and Hite (2004) and Collins (2010) have noted, private accountability actors have been crucial to advancing (post-) transitional justice in Chile. Their early documentation of facts surrounding crimes, their innovation in legal argumentation, their persistence in bringing cases, and their drawing of media attention and scrutiny to the courts slowly but surely elicited judicial responsiveness, which was often (though not always) encouraged by politicians seeking to burnish their own democratic credentials. In Spain, by contrast, there was no mobilization around these issues until 2000, after Garzón’s effort to extradite Pinochet to Spain from London. Moreover, the mobilization that followed was largely social and political, rather than legal. Only after victims’ organizations realized that the so-called Law of Historical Memory, finally passed by the Spanish parliament in 2007, was going to fall very short of their demands did they turn their focus to the judiciary, and more specifically, to Baltasar Garzón.7 Unfortunately, given the political differences just noted, Garzón was not well-poised to launch the investigation he proposed in his famous ruling of October 16, 2008. The third and final difference I highlight, then, is that between Garzón, or Garzón’s actions, and those of the Chilean judge who indicted Pinochet, Juan Guzmán.8 By the time Guzmán, a Santiago Appeals Court judge, issued his indictment of Pinochet in the Caravan of Death case, the legal and political groundwork had been laid and built up for years. The legal arguments Guzmán made to justify the investigation and the indictment in this high-profile but very specific case were not new in Chile, and his actions did not challenge the position of the sitting government or the democratic political elite, more broadly. Although he deserves credit for advancing this and other human rights investigations, his actions (and those of his colleagues before and after him) do not qualify as particularly radical, audacious or high-risk. Garzón’s actions, in contrast, were beyond bold. In an effort to respond to the very legitimate claims of victims’ groups, Garzón wove together several arguments developed and accepted in Latin America but largely untested in Spain, topping it off with the novel claim that, as an investigating judge of the Audiencia Nacional, he could claim jurisdiction over all of the assassinations and disappearances committed between July 18, 1936 and December 31, 1951 because they were linked to an initial and national-level crime of rebellion against the institutional order of the Second Republic (Altos Organismos del Estado).9 In so doing, Garzón didn’t just push the envelope of legal reasoning in Spain, he exploded it.

                                                                                                               7 This followed unsuccessful attempts to have cases opened in NUMBER of local courts, beginning WHEN. GET INFO. 8 I focus on Guzmán here not because he is as singular in Chile as Garzón is in Spain, but because of his symbolic importance as the first judge to indict Pinochet (refer, e.g., to the film, “The Judge and the General”). Of course, the alliteration is nice, too. 9 The Audiencia Nacional (AN) was created in 1977 as a strictly national-level court (primarily criminal, but also with administrative and social chambers). It conducts both first instance and appellate work, but is not a court of cassation (like the Supreme Court of Spain), nor does it have constitutional jurisdiction (like Spain’s Constitutional Tribunal). It was established above all to deal with terrorism, on the (strongly contested) view that the investigation and judgment of terrorism should be centralized and thus removed from local and regional courts that might be more susceptible to nationalist pressures in the Basque region or elsewhere. The AN also has jurisdiction over crimes of corruption, money-laundering, drug trafficking, as well as universal jurisdiction for international crimes committed outside of the national territory. International crimes committed within Spain, however, fall under the jurisdiction of the territorial courts in the locations they were committed.

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While this by no means justifies his subsequent prosecution,10 it does help explain the reaction to his actions, and the rejection of his arguments, on the part of many of his colleagues committed to the view of democratic legality and the judicial role established during the transition.

A Preliminary Word on Judicial Attitudes As noted above, when confronted with the quite radical divergence in post-transitional outcomes in Spain and Chile, some observers have concluded that it largely boils down to the political attitudes of judges in the two countries: judges in Chile have contributed to pro-accountability outcomes because they are committed to human rights and a more meaningful democracy, while judges in Spain have failed to act, or have blocked attempts at accountability, because they have “fundamentally conservative values” (Aguilar 2012: 332). In this paper, I take issue with such claims on two counts. First, probes of judicial attitudes in the two countries simply do not support the contention that Spanish judges are very conservative, while Chilean judges are notably progressive. Sociological surveys of judges in Spain have repeatedly indicated that their self-placement on a left-right ideological scale mirrors that of the population at large, with an average slightly left of center (between 4.6 and 4.9 on a 1-10 left-right scale) (Toharia 1989: 350 and Toharia and García de la Cruz 2005: 77). Even prior to the transition, scholars found there was significant ideological pluralism within the judicial ranks,--though most judges didn’t feel it proper to express this professionally (Toharia 1975), and in a 1987 survey, 86% of judges agreed that “democracy is preferable to any other form of government,” compared to only 49% of the general population (Toharia and García de la Cruz 2005: 77). It is true, of course, that because there were no purges of judicial personnel at the time of the transition, some ultra-conservative individuals kept their high-level positions in the judiciary.11 However, the creation of the Constitutional Tribunal, staffed early on by highly respected and committed democrats, meant that such high-ranking judges lost their dominant role in the system;12 all of their decisions became subject to review by a higher court, whose democratic pedigree was much stronger (Ferreres 2009). Moreover, important changes in judicial appointment and promotion rules, aided by a total of 22 (of 34) years of Socialist-led governments,--not to mention, simple generational turnover--, has meant that even the highest ranks of the judiciary have become socially and politically more plural with time (Toharia 1989; Toharia and García de la Cruz 2005).13

                                                                                                               10 I want to make perfectly clear at the outset that nothing in this paper is meant to convey or should be interpreted as a justification of the trial of Baltasar Garzón for his rulings in the so-called “juicio contra el Franquismo,” much less as a criticism of the victims’ groups, whose fundamental objectives I support. Rather, my goal here is to explain, to the best of my understanding, why judges and jurists have had such different approaches to legal accountability issues in Spain and Chile. 11 This was the case on the Supreme Court and the Audiencia Nacional, the latter of whose initial membership came directly from the infamously repressive Tribunal de Orden Público (Aguilar 2012: 329, note 54). 12 See Beirich 1998, who highlights the important tensions between the Constitutional Tribunal and the Supreme Court during the early years of democracy, but who concludes that the Constituitonal Tribunal was able to assert and establish its authority over the latter. 13 Perhaps the most striking change in judicial attitudes in Spain is the orientation to fundamental rights: while in 1972, only 33% of judges mentioned “constant vigilance over citizens’ rights and freedoms” as a basic characteristic of an ideal judge, by 1983, the proportion was 60%, and by 1987, a full 71% (Toharia 1989: 360).

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This is not to say that there don’t remain some very conservative individuals throughout the judicial ranks in Spain, but the evidence does not suggest that political arch-conservatives are in the majority nor that they dominate legal doctrine. In Chile, meanwhile, qualitative studies have indicated that the political views of judges are mixed, with judicial reforms between 1996 and 2005 helping to bring fresh perspectives into what had been a very closed institution with a conservative bias (Hilbink 2007a; Collins 2010; Couso and Hilbink 2011). These same studies, however, emphasize that there is not a strong correlation between the personal political preferences of judges and the positions they take on the bench (Hilbink 2007a: 163-5; Collins 2010: 144). Morover, it bears noting that until very recently (Couso and Hilbink 2011), the apparently liberal/progressive orientation of Chilean judges has been “toward this specific rights issue [i.e., accountability for authoritarian-era crimes] and this issue alone” (Collins 2010: 210 (my italics); see also Hilbink 2007a; Huneeus 2010).14

This relates to a second point challenging the political ideology argument, which is that even accepting that there is a judicial attitudinal component to the explanation for authoritarian-era accountability outcomes (which I definitely do), it is still necessary to explain how and why judges acquire (and sometimes change) these attitudes (see Hilbink forthcoming 2012). Where does the willingness of Chilean judges, and the unwillingness of Spanish judges, to investigate and prosecute authoritarian-era human rights abuses come from? Without such an analysis, an attitudinalist explanation of judicial behavior is vulnerable to charges of tautology, since it boils down to “judges decide conservatively/liberally because they are conservative/liberal, and we know they are conservative/liberal because they decide conservatively/liberally.” One major goal of this paper, then, is to explain the sociological and political dynamics that have shaped the attitudes of judges in the two countries toward post-transitional issues. Foundational Framing of the Relationship between Legality and Democracy As noted in the opening of this paper, scholars of democratization often highlight the similarities between the Spanish and Chilean cases, lumping them together (sometimes with Brazil and Uruguay) as countries that experienced “pacted” transitions. Respective country experts, Paloma Aguilar and Katherine Hite, observe correctly that the two countries are comparable in terms of:

the dynamics of partisan conflict that led to democratic regime breakdown, the durability and innovation of the authoritarian regimes under a single dictator, the important levels of economic success after serious economic crisis in the preauthoritarian periods, the levels of social support for the dictatorship, the cohesion of the armed forces, an elite-led transition controlled in important terms by the authoritarian incumbents, and the survival of positive evaluations of the authoritarian periods among certain sectors of society (Aguilar and Hite 2004: 192).

Nonetheless, significant differences in the power dynamics of the transitions, as well as in the personal experiences and attitudes of the protagonists, set the countries on divergent transitional justice trajectories.

                                                                                                               14 And even in the area of authoritarian-era accountability, “the courts’ actions have overall remained distinctly conservative (viz. the preservation of amnesty)” and in some cases the Supreme Court has gutted, without outright reversing, landmark lower court verdicts (Collins 2010: 134).

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To begin, although the Spanish and Chilean transitions to democracy were both formally “pacted,”--that is, they did not follow a collapse of the former regime nor a revolutionary overthrow thereof--, the specific conditions of regime change in the two countries were quite distinct.15 In Spain, the democratic reform-minded prime minister, Adolfo Suárez, was able to persuade the incumbent legislature to dissolve itself and to pass a political reform law that allowed for free and fair, proportional elections of a new parliament.16 The leftist opposition insisted that these elections should produce a congress endowed with constituent powers (Gallego-Díaz and De la Cuadra 1989: 27; Rubio 1993: 23), and their strong electoral showing allowed them to move the drafting of a new constitution forward. A plural panel of elected representatives forged the first draft of the new charter, which was then modestly revised and passed by the full legislature, and approved by 87.78% of nearly 18 million voters in a popular referendum (Rubio 1993: 24). The new disposition, modeled heavily on the German and Italian post-fascist constitutions, gave a privileged place to fundamental rights, such as bodily integrity, due process, and equal treatment under law (Bereijo 2003), sought to secure judicial independence aimed at the moderation of executive power (Gor 2003), and created a Constitutional Tribunal with a fresh, democratic pedigree, charged with defending these and other democratic constitutional principles in the new era (Hilbink 2009).17 Notably, all of this was done with the purposeful exclusion of the military, since both the incumbent reformers and the newly empowered opposition leaders sought to send a clear signal to the armed forces that the tutelary role they had long exercised over Spanish politics was finished (Cercas 2009: PPP; Hilbink 2009: PPP; Gunther 2011: 28).18 Indeed, codifying rights, enhancing ordinary judicial independence, and creating a (democratically-appointed) Constitutional Tribunal were not simply ways of controlling or limiting future elected governments, but were proposals advanced and accepted with the hope of finally and definitively submitting all the powers of the state, including the military, to the control of law (Rubio 1993: 35).19 In sum, while there were undeniably important institutional continuities from the previous regime, the leaders of the Spanish transition, through the commitments and innovations of the 1978 Constitution, acted to

                                                                                                               15 See Gunther (2011: 18), citing work by Bonnie Field and Omar Encarnación, “it is a mistake to establish simplistic typologies of regime transitions (such as ‘pacted’ versus ‘unpacted’),” and their consequences. 16 As I note elsewhere (Hilbink 2009: PPP), “this and other seemingly unilateral (and benevolent) moves on the part of the outgoing regime leaders were a clear response to the growing strength of the opposition and their impressive demonstrations of mobilizational power.” However, it is also true that Suárez was sincerely committed to “restoring a political regime similar in its essentials to that which Franco and his collaborators had violently overthrown forty years earlier” (Cercas 2009: 41). And most members of the right-wing parties shared the opposition’s desire to make a definitive break with the authoritarian past and secure a free and democratic political system (Pérez-Llorca 1988: 269), even if they had different motivations and socio-economic aspirations for the country. 17 The Constitutional Tribunal was modeled heavily on that of Germany, as a specialized court outside of the ordinary judiciary with exclusive/concentrated constitutional review powers, both abstract and concrete. The majority (ten) of its twelve members are appointed by elected officials and they serve nine-year, nonrenewable terms. See Ferreres 2009. 18 This position was, of course, frontally challenged in the attempted coup of February 23, 1981, but that attempt, and its ultimate failure, reflects the rift between the political and the military elite. See Cercas 2009; OTHERS. 19 Military interventions had been the norm, not the exception, in Spanish political history, long before Franco arrived on the scene.

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promote a clear break from the (pseudo) legality of the Franco era (see Hilbink 2009).20 For this reason, many have dubbed Spain’s transition a ruptura pactada,--a “pacted rupture.”

In Chile, by contrast, the transition was so heavily controlled by the military regime forces that some prominent analysts have argued it shouldn’t even be considered “pacted.” Heiss and Navia (2007) make it clear that the military had the upper hand in the negotiations at the time of the transition, possessing enough certainty about the relative balance of political forces and their policy positions to be able to concede just enough to guarantee the opposition would stay in the game while also strengthening their position as they entered the new democratic era. Both Agüero (1998) and Valenzuela and Dammert (2006) go so far as to say that Chile’s transition was not pacted, given that the democratic forces never gave their assent to the legal and institutional provisions dubbed the “authoritarian enclaves.” To be sure, the opposition never formally negotiated with representatives of the outgoing regime; after committing to forge the transition under the terms of Pinochet’s 1980 Constitution, they “could only accept or reject but not modify the dictatorship’s proposed reforms” thereto (Heiss and Navia 2007: 170). And while many of the charter’s authoritarian “provisions were dropped or modified in the 1989 reforms,” important limits on individual freedoms and democratic policy making remained, and provisions for military autonomy increased (Heiss and Navia 2007: 184-5).21 Particularly in the area of justice--ordinary, constitutional, and military—the authoritarian regime leaders left things “well tied up.” Not only did they make clear that the 1978 self-amnesty law was untouchable, but they passed a last-minute “candy law” (Decree Law No. 18,805 of June 17, 1989) to encourage judicial retirements and allow the outgoing regime to make seven new appointments to the Supreme Court.22 They also maintained the very limited democratic legitimacy of and access to the Constitutional Tribunal, and preserved the extraordinarily broad jurisdiction of military courts (Hilbink 2007a: 134 and Couso 2002; OTHER). In sum, the outgoing regime leaders in Chile locked their most basic interests into the constitution and essentially obligated their opponents to “swallow it” (trágala).23 At this point, a brief mention of how all of this related to the two countries’ respective amnesty laws is in order. Without entering into a discussion of the technical-legal, much less the moral, validity or invalidity of these laws, it is important to note the contrast in the context, motivations and objectives of their adoption in the two countries. To reiterate, I highlight these differences not to make a normative case for or against one or the other, but to explain how the amnesty laws were understood—and remain so—by

                                                                                                               20 As Agüero (2004: 253) puts it, “Reformers followed established legal routes to shake off any legal-constitutional constraints,” making “a quite radical break with Francoism while proceeding from within its very institutions.” 21 Most of these were eliminated in the 2005 reforms, although reform of military justice took even longer, and the latter is still not complete enough for most democratic critics (CITE). 22 Per the longstanding institutional rules, the government had to name candidates that figured in nomination lists proposed by the Supreme Court itself; however, as Hilbink (2007a) argues, the Court itself tended to favor more conservative candidates. 23 This term actually comes from Spain, where the history of constitution making before 1978 was deemed (not incorrectly) to have been a series of “trágalas” (Aguilar 2002: 151). See also note XX below.

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the generation that forged the transition in both cases.24 Spain’s 1977 law capped a long campaign, dating back, according to Spanish historian Santos Juliá, to the period of the Civil War itself (Juliá 2011: 32). The Spanish Communist Party, “the principal political force of opposition to the dictatorship,” had made a general amnesty, for both sides and for all crimes, a central pillar of its platform from 1959 forward (Juliá 2011: 30),25 and amnesty was “the opposition’s most insistently repeated demand” at protests and mobilizations before and after Franco’s death (Aguilar 2012: 319).26 Partial pardons in 1975 and the Amnesty Decree Law of 1976 (still prior to democratic elections), allowed for the release of all political prisoners, with the specific exception of those who had committed blood crimes (mostly Basques).27 But once free elections had been held, opposition leaders felt that they needed to go further, to demonstrate that the new democracy really would be all-inclusive and would be built on a shared aspiration for a peaceful and democratic future rather than on a divisive revisiting of a violent past, whether remote or more recent (Humlebæk 2011: 188). Thus, the principal objective of the amnesty law of October 15, 1977, which made the “qualitative leap” to cover “all acts of a political purpose, whatever their outcome may have been” (Aguilar 2002: 194, her italics),28 was to release the country’s remaining political prisoners, most of whom were members of the Basque terrorist group ETA (Juliá 2011: 185). For this reason, the law was actually opposed by the political party most closely identified with Francoism, Acción Popular, as well as by the military itself (Aguilar and Hite 2004: 226, fn 28).29 The largest parliamentary party, the Center-Right Unión de Centro Democrático (headed by Suárez), was responsible for inserting the two provisions that cover any crimes committed by agents of the state.30 It is likely that they did this to placate the military (which, as noted above, they had excluded from the political reform process) and/or to ensure that their own members would not face prosecution at some future date. But it should be recognized that the law was passed at the insistence of the democratic

                                                                                                               24 See for example the statements on the amnesty law that accompany the November 2002 resolution of the Spanish Camera of Deputies recognizing the victims of the civil war and the Francoist dictatorship, reprinted in Silva 2005, pp. 197-203. 25 Juliá (2011: 31) cites a statement by PCE leader, Dolores Ibarruri, from 1955 in which she called for “la política de atraer al campo de la democracia a aquellos que están deseando abandonar las banderas franquistas, sin preguntarles cómo pensaban ayer, sino cómo piensan hoy y qué quieren para España.” 26 Humlebæk (2011: 188) notes that the slogan, “Amnisitía, Libertad, Autonomía…was shouted by the milllions of demonstrators on the streets during the early phases of the transition,” and it “shows the extent to which democracy, amnesty to political prisoners, and some form of regional autonomy were viewed as an indivisible ‘package’.” 27 This left less than 100 individuals imprisoned for political crimes (Juliá 2011: 29). 28 This applied to all acts of a political purpose up through December 15, 1976, and to those acts committed in the name of greater liberty or subnational autonomy up through June 15, 1977. 29 The law passed “with 296 votes in favor, 2 votes opposed, 18 abstentions, and 1 invalid vote;” all of the abstentions came from the AP (Aguilar 2012: 320). 30 The provisions (Art. 2 e and f) extend amnesty to “crimes committed by authorities, functionaries, and agents of public order as part of the investigation and prosecution of acts included in the ambit of this law” and to “crimes committed by functionaries and agents of public order against the exercise of people’s rights” (Gil Gil 2009: 52-3). Note that crimes of the civil war and the post-war era are not mentioned explicitly. Juliá (2011: 194-5) claims this is because the authors of the amnesty law shared “the widely-held conviction was that all those crimes were [already] beyond the statute of limitations.” Aguilar (2012: 317), for her part, contends the Francoist reformers “felt so secure that it never occurred to them that anyone would attempt to try them.”

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opposition, with mass support (Aguilar 2012: 319), in a context in which everyone at the negotiating table was making sacrifices and taking risks precisely in order to avoid turning the transitional process into yet another “trágala” (Pérez-Llorca 1988: 267).31 As Aguilar has repeatedly emphasized (e.g., 2002, 2008, 2012), the Spanish transition was animated by an intense memory of the horrors of the civil war, for which the opposing sides both held responsibility (however lopsided): “This created a need for mutual and reciprocal forgiveness in Spanish society that proved far more intense than the demand for justice for the dictatorship’s excesses” (Aguilar 2012: 317).32 Allowing the release of convicted terrorists in the 1977 amnesty law was a major concession for the incumbents, and, in a context in which the protagonists were seeking desperately to build a democratic consensus amidst continuing violence,33 “such a compromise rendered unthinkable the possibility of prosecuting former officials of the dictatorship for human rights violations” (Aguilar 2012: 321). Moreover, as Aguilar notes, “one of the obsessions of the left was to demonstrate its conciliatory disposition and that it harbored neither ill feeling nor a desire for revenge” (2012: 331). By offering an amnesty “from everyone for everyone,” they could rightfully claim that this set them apart from Franco, the military, and the Catholic church, none of whom had ever shown any interest in discussing an amnesty (Juliá 2011: 32-3).34

By contrast, in Chile, the amnesty (Decree Law 2,191), issued by the junta on April 19, 1978, was undeniably and purposefully designed to shield regime agents from prosecution for extensive and severe human rights abuses committed from September 11, 1973 to March 10, 1978.35 Chilean human rights lawyers had been filing petitions for habeas corpus (largely in vain) for arrested and disappeared people since the day of the coup, and, with cover from the Catholic church, they had been taking testimonies and gathering as much information as possible on murders, disappearances, and the widespread use of torture. They had denounced the crimes to foreign governments and international human rights organizations, and the U.N. General Assembly had condemned Chile for human rights abuses four years in a row. Meanwhile, the United States had demanded the extradition of a secret police agent for involvement in the murders, by car bombing, of Orlando Letelier and his aide in Washington, D.C., and the American government was stepping up pressure on the regime to investigate the army’s involvement in the assassinations. It was in the midst of this crisis, in which domestic and international actors were exposing the illegality and brutality of the regime, that Pinochet decreed the amnesty. Although the law also technically erased crimes committed by several hundred leftist prisoners, it in no way represented any sort of

                                                                                                               31 As noted above (note XX), Spain’s history of constitutional drafting before 1978 was deemed to have been a series of “trágalas” (Aguilar 2002: 151), and the protagonists of the 1977-8 transition were determined not to let this happen again. They thus went out of their way not to alienate any party at the negotiating table. See Hilbink 2009 and refer to the excellent discussion in Aguilar 2008: 377-8, note 237. 32 This would seem to illustrate well the finding of Binningsbo, Malmin, Elster, and Gates (2005) on accountability mechanisms adopted after internal conflicts… 33 “Between 1975 and 1980, more than 460 violent deaths for political purposes were registered and about 400 people died in right-wing and left-wing terrorist acts” (Encarnación 2008: 440). 34 Indeed, this profound “example of generosity” is precisely what the victims’ groups (legitimately) feel has not been sufficiently recognized or honored by the Spanish state (Silva 2005: 134). 35 On March 10, 1978, Pinochet had declared an end to the state of seige that had been in perpetual effect since the coup, but had immediately replaced it with a state of emergency.

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conciliatory posture nor did it signal a liberalization of the regime. Indeed, most of the released prisoners were sent directly into exile,36 and the regime continued to incarcerate, torture and murder opponents, albeit in a more “prudent” and targeted fashion (Policzer 2009).37 From day one, then, the Chilean amnesty lacked all democratic political legitimacy, and victims and lawyers began searching for and testing any possible interpretation or loophole that would permit them to pursue truth and justice despite this formal legal barrier. The juxtaposition of these two transitional processes, and their relationship to the amnesty laws that were central to each of them, illuminates the very important difference in the framing of the relationship between democracy and legality at the moment of political refounding in the two countries. This framing, I contend, shaped what legal and political actors perceived as legitimate and possible going forward, particularly, though not uniquely, for the generation active in producing the transitions (compare to Agüero 2004 at 243). In Spain, legality itself—fundamental, constitutional legality--was a triumph of the transition and, for the cohort that helped birth the new regime, very much part of what it meant to be democratic.38 Democracy was established and guaranteed by the constitution, which was itself negotiated and drafted by democratic representatives and then overwhelmingly approved by popular referendum. For jurists of the democratic opposition, it was precisely the legal guarantees enshrined in the constitution, and in particular the normative and institutional limits on the executive, that marked a decisive rejection of and break with the repressive Franco regime (see cites in Hilbink 2009).39 As Aguilar notes, “The constitutional text of 1978 represented a negation of both the [civil] war and the regime it gave rise to” (2002: 259, my italics).40 Franco had had no respect for rights and rule of law principles, particularly in the criminal and public law spheres; there had been no limits on what could be done in the name of security, or for “reasons of state.”41 In the new democratic regime, by contrast, these principles were to be sacred.42

                                                                                                               36 Moreover, after the transition to democracy, it took more than four years to clear the jails of Pinochet-era political prisoners (Aguilar and Hite 2004: 197). 37 It should be noted that state agents who committed human rights abuses after the period covered by the amnesty law did not enjoy the same immunity from prosecution, although their judicial investigation was politically difficult. See Hilbink 2007a for details. 38 It was a major part of what it meant to be modern/European, and constitution drafters were motivated by an intense and shared “aspiration to achieve a democracy comparable to those of Western Europe” (Dorado and Varela 1993: 252). For multiple cites, see Hilbink 2009. 39 Note also that the Constitution contained a specific article that declared the derogation of the Francoist Leyes Fundamentales as well as “any dispositions opposed to that which is established in this Constitution” (García Amado 2008: 66). 40 See also the quote from Socialist leader (later president), Felipe González, to this effect in Tomas 1980 at 35, and refer to García Amado 2008. 41 Note that a significant minority (over 25%) of the members of the constituent congress had themselves been detained or imprisoned under the Franco regime (Gallego-Díaz and De la Cuadra 1989: 183), and many more had risen to prominence working or writing against the regime’s brutalities and in favor of a freer and more humane political system. 42 There was no official condemnation of the Franco regime (at least not until the 2007 Law of Historical Memory, which the Center-Right Partido Popular opposed), but it could be argued that erecting a new regime designed to secure rights and rule of law principles was an implicit way of expressing a determination to ensure this would never happen again: nunca más (never again). As my U of Minnesota colleague, Fionnuala Ni Aolin, once suggested at a colloquium session on transitional justice, legal and judicial reforms could be viewed as “remedies” tied to collective accountability, based on a recognition of

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It is within this perspective, as well, that Spain’s 1977 amnesty law, and the transitional generation’s attachment thereto, should be understood. As noted above, the amnesty had not only a pragmatic or instrumental goal,—namely, to try to bring the recalcitrant Basques into the democratic (national) fold--, but also an important symbolic value: to demonstrate the Left’s commitment to let go of even the most legitimate claims for injuries and abuses suffered at the hands of political opponents, however near or far in the past. In so doing, they could draw a sharp distinction between the new regime they were founding, and the Franco regime that had never for a moment softened its rhetoric about or treatment of those it viewed as its enemies (see Juliá 2011, chs. 2 and 13). It is hence of no small significance that the amnesty law was the first piece of legislation passed in the first session of the new, democratically-elected parliament in 1977 (Aguilar 2002). In addition to fulfilling a longstanding demand of the opposition, it sent the message that the new democracy was decidedly not “dictatorship turned upside down” but was qualitatively different (Juliá 2011: 199). In this sense, it marked a conscious, hopeful, even “audacious” (Juliá 2011: 223) break with a violent, undemocratic, and anti-legal past, which together with the 1978 Constitution, represented “a wager in favor of a new way of understanding democracy in Spain,” one characterized by “an exercise of power that would be respectful of the minority, that would never forget the values of pluralism and liberty,” and that would allow the competing parties to “ co-exist within it for as long as possible” (Roca 1998: 161).43

In contradistinction, democracy, legality, and amnesty were in sharp tension with one another in the Chilean transition. As noted above, the new civilian leaders inherited a deeply undemocratic legal edifice (i.e., the 1980 Constitution and a whole host of so-called “organic laws” and decree laws) that limited rights and liberties, over-represented the political Right, and granted the military high levels of autonomy and tutelage over the system as a whole. While the commitment of the democratic political elite to formal and procedural legality was too strong to allow them to contemplate or advocate outright defiance or circumvention of the constitution and the laws, they made it clear that a return to democracy would not be complete so long as the country operated under these imposed rules of the game.44 Moreover, “During the years of resistance to the dictatorship, the concepts of democracy and human rights had been forged into a single, indivisible ideal” (Otano 1995: 161), such that many citizens held that “to do justice is to build democracy” (Badilla 1990). Both in the official positions of the political elite and in the view of important sectors of the citizenry, then, law—at least domestic law—was more of an impediment to democracy than an achievement thereof, and the amnesty law represented

                                                                                                                                                                                                                                                                                                                                         the wrongs of the past and a commitment to prevent those in the future. On the idea of rights-based constitutionalism as a response to “regimes of horror” more generally, see Scheppele 2000. 43  In the words of García Amado (2008: 59), the 1978 Constitution “involved a conscious and very deliberate objective of breaking with the past history of Dictatorship, Civil War, and tensions and confrontations of all types…” and aimed at “initiating a model of coexistence that doesn’t derive from national traditions, but rather from a reorientation toward the moral, political, and social culture of the surrounding countries.”  44 To be sure, the derogation or nullification of the amnesty law was part of the Platform of the Concertación de Partidos por la Democracia in 1989 (Collins 2010: 75), and every Concertación government after the transition pushed for further reforms of the 1980 Constitution and other authoritarian-era legislation. The most significant set of reforms passed in 2005…CITE something about “completing” the transition.

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nothing more than the self-pardon of an illegitimate regime, designed with no other intention than to protect individuals who themselves had shown no respect for the most fundamental principles of legality. In sum, the pressure to find ways,--through technical-legal innovation--, around the formal legal obstacles imposed by the Pinochet regime, and the implicit or explicit legitimacy of doing so, were present from the start of the democratic era (indeed, they had been present since long before the transition).

This brings me to a related point regarding what these different framings of the democracy and legality relationship implied for the expectations placed on judges charged with interpreting and applying the law in the two countries in the post-authoritarian era. In Spain, jurists of the democratic opposition tended to identify with legal positivism as an important antidote to the conservative Catholic and monarchical natural law philosophy that had long been the country’s official doctrine (Gallego-Díaz and De la Cuadra 1989: 183; Díaz interview, 2007; Peces-Barba interview, 2007). Emerging from the long dictatorship, they felt that the surest route to a fundamental rights consciousness and “guarantist” (garantista) practice among judges was explicit textual direction (Aja 1978: 2; Roca 1978: 32; Díaz 2007; Roca 2007), along with oversight from a democratically-appointed and rights-minded Constitutional Tribunal (Jover 1978; OTHERS). This did not mean that they sought “apolitical” judges, who would blindly or mechanically apply the written law without attention to its origin or its content. Indeed, in the years leading up to the transition, legal scholars and political dissidents had advocated a “redefinition of the proper role of law and courts in public life, away from the narrow and instrumental conception of the past and toward a substantive linkage of law to liberal and democratic principles” (Hilbink 2007b: PPP). However, realizing this goal involved training and socializing judges to identify professionally with and uphold the new democratic constitution and the laws passed by a democratic legislature, not encouraging them to rule according to a notion of higher justice,--which, to repeat, was encouraged under Franco, with repugnant results (Bastida 1986).

In post-authoritarian Chile, by contrast, legal positivism was a conservative position, since it directed judges to apply legal and constitutional rules that were undemocratic in origin and often illiberal in substance. Although, as in Spain, the (illiberal) track record of the Chilean judiciary cautioned against any position that might explicitly encourage judges to infuse the law with their sense of higher justice (see Hilbink 2007a), the democratic reorientation of judges could not come, as in Spain, through an insistence on fidelity to the written law. Instead, judges seeking to demonstrate their commitment to democracy, and/or to redeem themselves in the eyes of the public (Huneeus 2010), had incentives to respond to innovative legal interpretations proposed by lawyers and, in some cases, encouraged by politicians. In summary, although both Spain and Chile had “pacted” transitions, the conditions of and constraints on the negotiations thereof were quite distinct, leading to very different framings of the relationship between legality and democracy, and, in turn, to different expectations of judges in the post-authoritarian era. In Spain, it was the passage of and adherence to the new constitution, with its dedication to European rights and rule of law standards (“un Estado de Derecho social y democrático”) that represented for the founders a rejection of Francoism and a commitment to democracy. Although the amnesty law was technically “pre-constitutional,” as the first law passed in the first session of the democratically-elected congress, it was (and, for many, remains)

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understood as the linchpin of the transition, allowing for and consciously symbolizing the all-inclusive, conciliatory, and thus definitively un-Francoist nature of the new democratic process. On the contrary, in Chile, the very undemocratic, and often politically illiberal (albeit economically neoliberal) constitution, as well as the cynical and self-serving amnesty law, stood as frustrating limits on and reminders of the continuing control of the Pinochetistas in the new “democratic” regime. Even before the civilian opposition took office, it was clear to them that to rebuild democracy in Chile would require finding ways, direct or indirect, of altering the legal order. Legal and Political Support Structures45 The general frames presented in the previous section were themselves informed by and have been reinforced through the very different patterns of legal mobilization around past atrocities in the two countries. Spain has not had anything close to the coordinated and sustained private legal mobilization efforts that have been a staple of Chilean politics since long before the transition to democracy (Aguilar and Hite 2004). Persistent and adaptive forms of such mobilization, reinforced by domestic political pressure, were fundamental to producing judicial action in cases of authoritarian-era human rights abuses in Chile (Collins 2010), but such mobilization was almost entirely absent in Spain until very recently.46

The lack of “an organized, visible human rights movement” both during and after the dictatorship in Spain (Aguilar and Hite 2004: 211) is in part a function of the fact that civic associationism of all kinds has always been weak in Spain.47 Indeed, legal advocacy groups have always been small and few in number, and even the organized bar is quite weak and very corporate in orientation (CITES). Perhaps more important, though, is that the victims of Francoist repression hesitated to act for decades out of fear, humiliation, and/or resignation (Graham 2004; Silva 2005). Both Silva (2005: 149) and Encarnación (2008: 443) note that some early exhumations of victims came to a “screeching halt” after the attempted military coup of 1981, which spooked everyone, and none was attempted again until 2000.48 Yet even with the proliferation of associations for the recovery of historical memory since 2000, the victims’ demands have not been oriented toward legal accountability; rather, they have focused on the exhumation and identification of bodies, and on setting the historical record straight (Encarnación 2008). They seek “to give families the opportunity to recover their dignity by giving their dead a proper burial” and “to allow the elders to transmit their testimony to the new generations so that these latter can take possession of a history of which they were unaware” (Silva 2005: 100). With these goals in mind, they have channeled their activism largely into political lobbying and mobilization of the media, including the foreign media (Silva

                                                                                                               45 The concept of legal support structure referenced in this section comes from Epp 1998. 46 Aguilar and Hite note (2004: 193) that despite other similarities between the two countries, there is an important contrast “regarding the absence in Spain and the presence in Chile of organized demands for accountability, most notably from local human rights groups and their transnational advocacy networks.” 47 Gunther (2011: 36) cites surveys indicating “that the percentage of Spaniards who belong to no secondary association of any kind have ranged between 64% in 1978 and 80% in 2004.” See also Encarnación 2011. 48 The survey work of Aguilar et al. (2011), showing a far lower level of support for transitional justice mechanisms in rural areas suggests that, at least over time, the fear may have been less of this “high political” type than it was local and more social (i.e., fear of local powerholders and neighbors).

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2005: 119). But as Aguilar (2012: 327) notes, “hardly anybody in Spain is calling for the prosecution” of those responsible for human rights abuses.49 Indeed, legal analyst Alicia Gil Gil (2009: 101) argues that the 1977 amnesty law could be interpreted in the same way the Chilean law has been interpreted, to allow/require judicial investigation and clarification of facts and guilt before the application of amnesty, but that apart from one case (caso Ruano) in which the accused were absolved for other reasons, nobody has brought charges.50 By contrast, in Chile, victims and their lawyers have been bringing cases to the courts since the early days of the dictatorship. Despite the tremendous risks involved, the generalized climate of fear, and the very negative response of judges for years on end (Hilbink 2007a), human rights activists and lawyers kept filing petition after petition, and (later) charge after charge, attempting any angle and pursuing any new lead to keep cases open (Collins 2010: 100-1).51 Eventually, through what Collins (2010: 218) calls the “essentially strategic use of a cumulative, attritional approach,” they began to get a more cooperative response from the judiciary. This judicial will took a long time to materialize, however, and while it is certainly an important factor in the accountability “breakthrough” in Chile (Collins 2010: 138), one should not infer that judges were the legal innovators, taking the “initiative” to “advise the families of the ins and outs of the law” in order to secure justice, truth, or moral reparation (Aguilar 2012: 329). Indeed, it was private human rights lawyers that worked hand in hand with families and who developed and submitted the legal arguments to get around the amnesty law, prescription, or the “double jeopardy” (cosa juzgada) rule. Collins (2010) notes this at several points,52 and she quotes human rights lawyer Hugo Gutiérrez as stating: “All the arguments being accepted today…have been around since right after the coup, but it’s only today that the courts have embraced them” (p. 132, note 181).53 In addition to this vast difference in private pro-accountability mobilization in Spain and Chile, it is also important to highlight the dramatic contrast in the positions and actions taken by political leaders to promote legal accountability in the two countries since their respective transitions. Although private accountability actors in Chile have been key in keeping the issue on the table even when politicians have expressed a desire to “move on,” it is also important to note the variety of ways in which political leaders have encouraged, if not outright cajoled, judges into taking action on authoritarian-era abuses in Chile,--whereas in Spain, they have done nothing of the sort.

                                                                                                               49 Encarnación (2008: 456) explains that, because the “mass violence of the Civil War…left citizens from all corners of society with blood on their hands,” there is “little appetite” for any kind of confrontation that might pit victims against their oppressors. He quotes the late historian Javier Tussell as saying, “In Spain there is a willingness for amnesty not amnesia.” 50Notably, Gil Gil’s discussion of the Ruano case reveals that judges, even Supreme Court judges, are not hostile to such investigations (see 2009: 85-6) 51 To be sure, they were greatly aided in this effort by the Catholic church in Santiago, which offered a safe space for victims and relatives to come report abuses as well as a political shelter for the lawyers who worked under its auspices, and the valuable documents that they produced (first as part of the Comité Pro Paz and then in the Vicaría de la Solidaridad). 52 See, for example, pages 121, 124, 132, and 218. 53 Moreover, judges have proceeded cautiously, incrementally, and (alas) inconsistently. To cite Collins yet again: “there is little sign that the Chilean courts in general, or even the Supreme Court in particular, have a firm design or policy of their own over accountability…[Chile’s Supreme Court] has produced erratic sequences of outcomes that defy easy extrapolation of a particular agenda” (Collins 2010: 145-6).

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The initial tone in Chile was set by the first civilian president, Patricio Aylwin, who, upon release of the truth commission report in 1991 (which itself devoted an entire chapter to a critique of judicial performance under the military regime) accused judges of having “lacked moral courage” in human rights cases and called upon them to “carry out their function and pursue exhaustive investigations” in the 220 some cases on which the Commission had uncovered new evidence (Hilbink 2007a: 181; see also Collins 2010: 75). Aylwin insisted that amnesty could not be applied until a complete judicial investigation had been done, the facts of the case had been clarified, and the perpetrator(s) identified. This position, subsequently dubbed the “Aylwin doctrine,” gave the green light to judges to keep human rights cases open despite the amnesty, though they did not consistently do so until after 1998 (Hilbink 2007a; Collins 2010). Moreover, from 1990 forward, “Chilean presidents consistenty argued that under a democracy institutions must respect the separation of powers of the state and that it was the Chilean courts’ role to determine whether or how to prosecute those accused of grave human rights offenses of the dictatorship” (Aguilar and Hite 2004: 207).

Having said that, elected officials in Chile, through various state agencies, also provided technical and moral support for human rights investigations and prosecutions. In 1997, President Frei created the “Programa Continuación Ley 19.123,” whose name references the law that had created the National Corporation for Reparation and Reconciliation in 1992 (Collins 2010: 81). While it “had a relatively low profile” during the Frei administration, after its “relaunch” in 2000, it began joining on (as a public plaintiff) to existing criminal complaints and became “a port of call for judges investigating disappearances” (Collins 2010: 91).54 In addition, the government’s legal agency, the Consejo de Defensa del Estado, joined on as a plaintiff in key cases beginning in YEAR, including in the Caravan of Death case, in which it argued in favor of stripping Pinochet’s immunity (Collins 2010: 112). Perhaps more consequential than all of this, however, were the judicial reforms promoted and passed by successive post-transition governments in Chile (see Hilbink 2007a: ch 5 and Couso and Hilbink 2011).55 A 1997 reform of the Supreme Court had the most direct effect because it “brought eleven new faces to the Court, including five lawyers from outside the judicial hierarchy.”56 While it was a “court-packing by any other name,” this reform “had democratic legitimacy, not only because it was approved by an elected (mostly) Congress, but because it was a response to a court appointed [under] a dictator” (Huneeus 2006: 50),57 and it effectively opened up new possibilities for judicial receptivity to innovative legal interpretation. Moreover, the wider judicial reform process of the 1990s repeatedly encouraged (and, at times, forced) judges to reflect upon and reassess their role in democracy. Realizing that, to be successful, reforms could not be foisted on judges, but rather required their acquiescence and participation, policy makers organized extensive seminars, roundtable discussions, and                                                                                                                54 Explain the mechanism of private prosecution (la querella) in Chile, by which private citizens, represented by lawyers, can file charges… Veronica data to cite? But then is CDE also called a “querellante?” 55 For an assessment of the impact of Pinochet’s arrest and detention in London and for an attempted extradition to Spain, see Hilbink 2008. Refer also to note XX above. 56 For details of the reform see Hilbink 2007a at 186-7 and Hilbink 2008. 57 To be sure, it had more legitimacy than the impeachment attempts of three Supreme Court judges (successful in only one case) in 1992 (Hilbink 2007a: 184).

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state-sponsored trips abroad designed to expose judges to new ideas and alternative models. At the same time, the reform initiatives brought increased journalistic coverage of the judiciary, such that judges found themselves frequently in the media spotlight over human rights rulings.

Thus, from the very beginning of the post-Pinochet era, Chilean politicians have, in word and deed, sent the clear message that the human rights violations of the authoritarian regime are legal matters that are not only the proper purview of judges, but can and should be investigated and, if legally possible, punished by the courts. To be sure, political leaders have not been consistently fervent in their insistence on justice, and they have at times sent mixed messages to the courts. Furthermore, it is highy plausible that Chilean politicians delegated these hot-potato issues to the judiciary for strategic reasons, allowing them to deflect criticism and pass the blame for slow progress in advancing justice. Whatever the reason, the fact remains that the consistent legal framing of the authoritarian-era human rights issue by politicians directed attention to and put pressure on the courts in a way that simply has not happened in Spain.

Indeed, if anything, the position of political actors in Spain has been that addressing past violence is a political issue to be addressed by legislators and administrators and not courts. As Aguilar (2012: 323) puts it, “None of the prime ministers in Spain… [has] demonstrate[d] a resolute political will to promote accountability.” Nor has any Spanish political leader advocated, as did President Alywin in Chile, full judicial investigation of amnestied crimes prior to the application of amnesty.58 Even after the Socialist Party (the PSOE) incorporated the recovery of historical memory and the expansion of the rights of the victims into its program in 2004, they declined to pursue or encourage any kind of legal accountability, and, to the great frustration and even bafflement of many, they wound up abandoning the idea of declaring the decisions of Franco-era courts legally null and void.59 The Law of Historical Memory, passed by a rather slim majority of the parliament in December of 2007, “firmly shies away from determining criminal responsibility of perpetrators of past human rights violations protected by the transitional amnesty,” focusing instead on measures that “reshap[e] the confines of the public sphere in terms of future understanding of Spain’s violent history,” or at least offering some initial, though still insufficient, mechanisms to move in that direction (Golob 2008: 137; Escudero 2008).60

                                                                                                               58 As noted above, there has only been one attempt to pursue such an approach in Spain (the Ruano case), in which judges actually showed a willingness to apply a sort of “doctrina Aylwin,” but in which a lack of evidence made it impossible to convict the accused (Gil Gil 2009: 85-6). Gil Gil, who finds a host of legal barriers to the criminal investigation by judges of civil war and early post-war abuses (i.e., those covered in Garzón’s 2008 ruling), argues that the equivalent of the “Aylwin doctrine” would be perfectly legitimate in the Spanish case, at least for cases in which there are no questions of retroactivity or statutes of limitations, and where suspected perpetrators are still alive (Gil Gil 2009: 86 and 101). 59 The Law of Historical Memory declared these rulings “illegitimate,” but refused to go so far as nullification, drawing significant criticism from prominent figures (Martín Pallín 2008; Escudero 2008; Juliá 2011). 60 The main provisions of the law include a declaration of the injustice and “illegitimacy” (but not nullification) of Franco-era trials and convictions; state help with (but not full shouldering of) the tracing, identification and eventual exhumation of victims of Francoist repression whose corpses remain missing; the expansion of reparations to the victims of the Civil War and the Francoist regime and their descendants; and the removal of Francoist symbols from public buildings and spaces. For a full critique of the law, see Martín Pallín 2008.

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To sum up, contrasting patterns of (private) legal mobilization and of (public) political support and pressure since the transitions in Chile and Spain have served to reinforce the fundamentally different founding constructions of the relationship between legality and democracy in the two countries, shaping judicial responses to post-transitional justice claims. In Chile, the “habitual resort to professionally led, case-by-case legal action” on the part of private accountability actors has been a crucial ingredient in eliciting, slowly but surely, improved judicial receptivity to post-transitional claims (Collins 2010: 101 and 198). In Spain, by contrast, there has never been anything resembling this kind of case-by-case litigation strategy. Rather, as in El Salvador, where “both government and opposition entered wholeheartedly into [an] amnesty” that involved the same kind of “forward-looking emphasis and ‘fresh start’ rhetoric” as in Spain, “effective, consistent, legally framed actor pressure [has] continued to be absent” (Collins 2010: 200 and 207). Moreover, in Chile, the government has explicitly and persistently assigned the handling of transitional justice matters to the courts, and, through a variety of direct and indirect measures, has encouraged, supported, and even outright pressured judges to investigate and punish past human rights violations. In contrast, even the administration most interested in revisiting the past and redressing forgotten victims in Spain eschewed judicialization in favor of legislative and administrative measures. It is thus not surprising that Spanish judges have shown a “lack of initiative” toward accountability.

This is not to say that judges in either country are mere “sunflower[s], drawn by the inexorable shift of political fortune” (Collins 2010: 137). However, the broad orientation of the major political forces in any country does set the parameters for what judges are willing and able to do,--a point over which there is little controversy in the U.S. literature on judicial behavior (see Dahl 1957). Indeed, rare (and quite ineffective) is the judge that strays too far from the views of the dominant political coalition. Judicial Behavior in Context: Guzmán versus Garzón Based on the analysis presented in the previous sections, it should be clear that the social and political conditions present in Spain and Chile since their respective transitions to democracy have presented judges with very different sets of expectations and incentives: In Spain, the prevailing view of the democratic judge is of one that adheres closely to the fundamental legal principles and rights guarantees enshrined in the 1978 Constitution and to the laws passed by the democratic legislature, insofar as these latter do not violate said principles. If and when s/he does have doubts about the legal legitimacy of such a law, s/he must file a petition (a cuestión de inconstitucionlidad) with the Constitutional Tribunal, explaining the reasoning and requesting a ruling from that collegial and democratically-appointed body.61 To do otherwise is to slip into patterns that, in form if not in substance, hearken back to the authoritarian past. This regulative ideal (promoted most vigorously since the transition by the progressive judicial association, Jueces para la Democracia62), and the judicial behavior it has informed in human rights cases, has not been challenged in any sustained or coordinated way by either civil or political society in Spain. Human rights lawyers have not mounted a legal mobilization strategy to reorient

                                                                                                               61 On the Constitutional Tribunal, refer to note xx above. 62 This author is currently drafting a book on the origins and impact of the Judges for Democracy in Spain, based on extensive empirical data.

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judges from below, and elected officials have never encouraged, much less pressured, judges to assume the task of bringing justice for Franco-era atrocities. In Chile, conversely, the democratic judge is one who recognizes the anti-democratic nature of the constitutional and legal edifice inherited from the Pinochet regime and works to find interpretations that get around the wickedest provisions therein.63 Indeed, one of the major critiques of judges under the Pinochet regime is that, after the coup, they went on applying the “commands of the sovereign” as if nothing had changed: law was law, regardless of its source and content (see Hilbink 2007a). To redeem themselves, then (Huneeus 2010), to demonstrate their commitment to democracy, Chilean judges must respond, where possible, to the claims from below and the pressures from above to do justice in authoritarian-era rights cases. And as noted above, the urgings and opportunities presented to judges by private accountability actors and public officials have been perennial. With these very different contexts in mind, I turn now to a brief presentation of the specific circumstances surrounding and arguments made in the highest-profile accountability cases in the respective countries: the Caravana de la Muerte (Caravan of Death) case in Chile, decided by Juan Guzmán (1999-2001), and the “Juicio contra el Franquismo” rulings by Baltasar Garzón in 2008.

Charges in the Caravana de la Muerte case were filed in the Santiago Appeals Court in January 1998 (the second criminal complaint directly involving Pinochet, although hundreds were to follow). The name of the case refers to the operation, carried out in October 1973, in which a military death squad traveled the length of the country executing leftist detainees. The operation resulted in the deaths of some seventy-five individuals, nineteen of whose remains had yet to be located. Relatives of some of the victims had filed previous complaints in 1985, but the case had been suspended on the argument that the events were covered by the 1978 amnesty law. The case was assigned to appellate court magistrate Juan Guzmán Tapia, who came from a conservative political background and had, to that point, not distinguished himself as particularly pro-accountability. As Collins notes, though, several things about the case made its investigation and prosecution particularly viable. As a “reasonably well-established incident that had…seen some prior judicial activity,” there was some decent “initial investigative material for Guzmán.” Moreover, the fact that previous charges had been filed in the 1980s meant that the statute of limitations was not an impediment,--i.e., there had been “timely” judicial action (Collins 2010: 105).

What’s more, by this time, the 1997 reform of the Supreme Court (discussed above) had brought about a change in the composition of the penal chamber of the high court and a willingness thereof to accept arguments that averted the application of amnesty (see Hilbink 2007a: 198-201). In November 1997, the chamber ruled that amnesty could not be applied until the investigation was complete and the perpetrators and their crimes identified (i.e., “the Aylwin doctrine”). And in September of 1998, they issued their landmark ruling in the Poblete-Córdoba case, arguing, first, that the Geneva Conventions, to which Chile had become a signatory in 1951, expressly precluded amnesty for war crimes (and the military regime had said multiple times that Chile had been in a “state of war” in 1973-4); and, second that forced disappearance, where no

                                                                                                               63 Refer to Dyzenhaus 1991.

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body had been found, constituted an on-going crime (delito permanente) that continued beyond the fixed period covered by the amnesty (Hilbink 2007a: 199). As noted above (p. XX), none of these arguments was novel, but their acceptance by the high court opened the way for lower-court judges, like Guzmán, to move forward. Moreover, on October 18, 1998, upon an extradition request of Spanish magistrate Baltasar Garzón, Pinochet was arrested and detained in London, suddenly shining the international spotlight on the performance of Chilean courts in authoritarian-era human rights cases.

It was in this context, then, in June of 1999, that Judge Guzmán indicted five army officials (below Pinochet) who had led the Caravan of Death operation.64 Although recognizing and applying amnesty for the confirmed deaths (around 50), Judge Guzmán argued that the remaining nineteen were victims of “aggravated kidnapping,” which, as the Supreme Court had ruled in the Poblete-Córdoba case, extended beyond the time frame of the amnesty law. Both the Santiago Appeals Court and the Supreme Court, in turn, upheld the indictments.

These rulings helped give credibility to the government’s claims that Chile’s judiciary was willing and able to prosecute authoritarian-era abuses and that, hence, Pinochet should be sent home to face trial (see Huneeus 2006: 56). Although Britain’s highest court did find grounds for extradition, ultimately, the British government succumbed to pressure from the Chileans, releasing Pinochet and returning him to Chile on humanitarian grounds in March of 2000 (just before the inauguration of Socialist president Ricardo Lagos).65 Soon after, both the Santiago Appeals Court and the Supreme Court ruled that there were sufficient grounds in the Caravan of Death case to revoke Pinochet’s senatorial immunity.66 Both courts acknowledged that, at the very least, there was enough evidence to suggest that Pinochet had illegally covered up or sought to protect the generals directly involved with the crimes, and that the existence of this “well-founded suspicion” was sufficient to revoke his immunity and require that he stand trial.67 This in turn permitted investigating judge Juan Guzmán to indict the general in January 2001.

While this breakthrough in accountability, symbolized most powerfully in the indictment of Pinochet himself, is obviously an expression of a (changed) judicial will in Chile, several points should be underscored. First, it came in the wake of,--and thanks to--, years and years of private legal mobilization, which, in addition to keeping public attention and criticism focused on the courts, contributed to the process in several very specific ways: individual files that documented specific facts about each case already existed and could be built upon; recorded legal action allowed for the resetting of the

                                                                                                               64 The indicted officers were retired General Sergio Arellano Stark, retired Brigadier Pedro Espinoza, and retired Colonels Marcelo Moren Brito, Sergio Arrendono Gonzalez, and Patricio Diaz Araneda. 65 Extensive discussion of the national and international trials of Pinochet can be found in Davis 2003 and Roht-Arriaza 2006. 66 According to Article 45 of the 1980 Constitution (now amended), any president that served at least six years could subsequently serve as a senator for life. Pinochet had assumed this office in March 1998, after stepping down as Commander-in-Chief of the Armed Forces. Although he retired from the Senate in July 2002, as an ex-President, he continued, until his death, to enjoy legal immunity, which would have required a separate revocation in each and every case against him. 67 It bears recalling that the government’s legal agency, the Consejo de Defensa del Estado, filed a brief in favor of revoking the general’s immunity (see p. XX above.)

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clock on statutes of limitation, eliminating this legal barrier; and a variety of possible interpretations that would allow cases to move forward had already been developed and tested (albeit often unsuccessfully). Second, elected political officials and government agencies had expressed support for (at least) complete investigation before the application of amnesty, and, in the Caravan of Death case, for the prosecution of the perpetrators, including Pinochet. Moreover, as noted in the previous section, they had promoted a series of reforms, and most directly, the 1997 reform, aimed precisely at “renovating” a backwards and out-of-touch judiciary. Finally, even the most dramatic decisions (e.g., the Poblete-Córdoba ruling and the Caravan of Death indictments and convictions) were legally careful and, indeed, conservative: applying only to individual crimes or operations; separating out un-amnestiable disappearances (where no body had been found) from murders (which, if committed before March 10, 1978, were still amnestied); respecting statutes of limitations (made possible due to previous legal action); and pursuing only perpetrators who were alive and fit to stand trial. It also bears noting that, while the Poblete-Córdoba decision promised otherwise, judges in Chile have tended not to ground accountability decisions in international law or the rulings of regional and international bodies (Collins 2010: 132-3). As Chilean human rights lawyer Francisco Cox stated to Cath Collins: “If I want to make a point, I use international law; if I want to win the case for the client, I stick to national law” (Collins 2010: 132).

All of this contrasts with the Spanish case, where Baltasar Garzón threw caution to the wind and, despite a lack of legal and political support structures (as established in the previous section), and departing from established norms/expecations regarding democratic judicial procedure (noted above), issued a dramatic and sweeping ruling in what was immediately dubbed the “trial of Francoism” (el juicio contra el Franquismo). As I will elaborate below, not only did Garzón act in a way at odds with the approach of the sitting government and in defiance of the position of the public prosecutor’s office, but he also frontally challenged the dominant political coalition’s established, indeed cherished, view of the relationship between democracy, legality, and amnesty. Moreover, in contrast to Guzmán and other Chilean judges, Garzón ignored established jurisprudence of both the Constitutional Tribunal and the Supreme Court, stretched and wove together arguments from other jurisdictions that had thin support domestically, and made an unprecedented reference to a former penal code so as to allow himself to claim jurisdiction over all the crimes committed between 1936 and 1952. All of this flew in the face of the image of the proper democratic judge described at the beginning of this section, helping to explain the strong reaction against the decision within Spain, even from many with impeccable democratic and progressive credentials. The saga began in December 2006. After it became clear that the Law of Historical Memory (being drafted and negotiated at that time) was not going to provide the level of support for exhumations and other measures that they had lobbied for, victims’ groups began filing a series of criminal complaints with the Audiencia Nacional (AN). The complaints invoked their right to know the fate of their loved ones and stated that their objective was to get the Spanish state to assume its legal (as well as moral and financial) responsibility to identify and exhume the mass graves of the Franco era. Garzón did not act on these immediately but, for reasons that have been the subject of much speculation, waited until late June 2008 to begin processing them (Napoleoni 2011: 266-71). In the meantime, on February 1, 2008, the chief prosecutor of the AN, Javier

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Zaragoza (a close personal friend and previous collaborator of Garzón’s), issued a report declaring that the AN, whose jurisdiction was enumerated and limited by law, did not have jurisdiction over the crimes denounced in these complaints,68 and that, in any case, they were covered by the 1977 amnesty law. Garzón ignored the report, and, on October 16, 2008,--ten years to the day after his arrest warrant for Pinochet was issued--, published a resolution (auto) declaring his jurisdictional competence and announcing the launch of a criminal investigation.

Garzón argued that the proper criminal classification for all of the 114, 266 victims of the Civil War and early Francoist dictatorship (1936-1951) represented in the complaints filed with the AN was illegal detention/forced disappearance, which, absent identification of the remains and dating of the death, should be considered an ongoing crime [as had been argued in Chile in the cases discussed above]. Because of this ongoing status, neither a statute of limitations nor the 1977 amnesty law applied. Moreover, these local/domestic crimes were committed “in a context of crimes against humanity,” that is, as part of a “generalized and systematic plan of attack against a sector of the civilian population,” rendering the amnesty law doubly inapplicable, since international law bars amnesty for crimes against humanity.69 Finally, and crucially for his claim to jurisdiction, Garzón argued that this systematic plan to commit crimes against humanity began with, and depended on, the initial overthrow of the government and the institutions of the Second Republic, a crime against the nation (per the 1932 Spanish penal code) that brought everything that followed from it under the jurisdiction of the AN. As part of the resolution, Garzón requested the death certificates of 35 leaders of the Nationalist uprising in 1936 (those presumed responsible for the overthrow plot), and announced that, in order to lay the groundwork for the investigation, he was forming a panel of experts to study, analyze, evaluate, and report on the number, location, status and identification of the 114, 266 victims during the period July 17, 1936 to December 31, 1951. The team would be aided in their work by another group of investigators from the Judicial Police that would have access to any and all public and private registries or archives that might contain information on the identity and fate of the victims. He also ordered the immediate exhumation of 19 mass graves, including that in which the body of the poet and playwright Federico García Lorca was thought to be buried (Garzón Auto A, put in fdo nos. above).

AN chief prosecutor Zaragoza immediately appealed the resolution to the AN’s full penal chamber. Although he shared many political views with his colleague, he vigorously disputed the legal integrity of Garzón’s October 16th resolution, arguing that it violated basic principles of penal procedure in a rule of law system and that, in any case, the crimes in question did not fall under the jurisdiction of the Audiencia. Zaragoza acknowledged that the thousands of victims of Francoism had a “just claim to recuperate memory and dignity,” (p. 3) but argued that an investigation into all the deaths and disappearances from mid-1936 to the end of 1951 constituted a causa general (or “general inquisition”), outside the “reach, limits, and ends” of criminal procedure and proscribed by constitutional doctrine (pp. 1, 5-7). Furthermore, Garzón’s resolution used a “singular interpretation” of the Franco-era crimes as illegal and ongoing detentions, so

                                                                                                               68 Refer to note X above on the AN’s jurisdiction. 69 To avoid charges of retroactivity, Garzón argues that…Martens Clause, Nuremburg…customary international law.

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as to get around statutes of limitation on what were “publicly and widely-known” to be assassinations (p. 1 and 12-17). It also ignored the democratically-approved amnesty law of 1977 (p. 2 and 17-19),70 he contended, using a retroactive application of the category of crimes against humanity to the atrocities in question (p. 2 and 8-12). Finally, in order to claim jurisdiction for the Audiencia Nacional (and, thereby, himself), Garzón’s resolution used a “lax interpretation of the norms of connection” among crimes and “constructed a singular juridical scaffolding” to link the alleged crimes against humanity to the crime of rebellion against high organs of the nation and the form of government (p. 2). The prosecutor also noted that any crime, even crimes against humanity, committed within Spain fell under the jurisdiction of the local courts in the territories where they were committed (pp. 2 and 20-21),71 and, that, for the crime of rebellion committed in 1936, it would be the Supreme Court (Tribunal Supremo), and not the Audiencia Nacional (created in 1977) that would have jurisdiction (pp. 2 and 22).

On November 28, 2008, the penal chamber of the AN ruled 14 to 3 in favor of Zaragoza’s appeal. In the interim, however, on November 18, 2008, Garzón had issued a second, and much longer, resolution, in which he ceded jurisdiction to local courts. Having received formal proof that those who had led the 1936 uprising against the Second Republic were deceased, Garzón declared that their criminal responsibility for the connected crime of rebellion, which had allowed him to launch the investigation at the national level, was extinguished, such that the duty to investigate the disappearances themselves devolved to the local courts in the jurisdictions where the crimes had been committed. In an effort to bolster their efforts, he devoted the bulk of this second resolution to a long and pointed defense of his legal reasoning, responding directly to the challenges mounted by the chief prosecutor (Garzón Auto B).72

The drama surrounding Garzón’s resolutions could have ended there, and the continuing debate over post-transitional justice in Spain might not have centered on him, but for developments in the spring of 2009 that gave the story a new and perverse twist. Through a mechanism known as the popular action,73 a far-Right organization called Manos Limpias (Clean Hands) filed charges in the Supreme Court against Judge Garzón for the crime of prevaricación, defined as “knowingly issuing an unjust [i.e., legally illegitimate] resolution.” Drawing on Zaragoza’s appeal, they accused the judge of consciously “leaving the law behind” and engaging in a “premeditated violation of the Rule of Law” by “proceeding in the case with full consciousness that he did not have

                                                                                                               70 He notes that, in the Spanish system, if and when judges have doubts about the constitutional legitimacy of a law, they cannot simply refuse to apply it, but are required to submit a constitutional question to the Constitutional Tribunal (p. 19). 71 Indeed, on p. 4, the chief prosecutor makes clear that the Ministerio Fiscal has never opposed the intervention of the local courts in the process of locating, identifying, exhuming and transfer of remains of the disappeared. 72 Notably, on p. 129, to defend himself against the criticism by Zaragoza that he tried to launch a "causa general,” Garzón states, in bold type: "Desde luego si el Fiscal Robert H. Jackson, en su acta de acusación contra los criminales nazis, hubiera utilizado el criterio que aplica el Fiscal de la Audiencia Nacional, Nuremberg no hubiera existido." He goes on to quote Jackson's opening statement at the Nuremberg trial about how the trial was about defending civilization (FLESH OUT, noting difficulty of likening himself to Jackson/his office and his mandate to that of the international court at Nuremburg in occupied post-war Germany). 73 Spanish Law allows prosecution of “public crimes” not only by the attorney general, but also by any citizen, injured or not by crime: art. 125 Constitution and 101 Criminal Procedure Act or LECrim.

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jurisdiction” (Auto 26 May 2009, Tercero C).74 Although the Attorney General’s office argued Garzón’s actions did not constitute a crime and announced that they were opposed to his prosecution, a five-judge panel of the penal chamber of the Supreme Court voted unanimously to admit the private charges. They then assigned a sixth colleague, Luciano Varela,75 to be the investigating judge (juez de instrucción) in the case.

On April 7, 2010, to the anger and dismay of the victims’ groups and their supporters, Varela issued a formal indictment of Garzón for the crime of prevaricación.76 Varela’s arguments focused less on the legal errors that had already been identified by Zaragoza and by the complainants (which he accepted) than it did on the question of whether Garzón knowingly ignored, manipulated, or invented legal rules, “ignoring essential Rule of Law principles” in order to be able to declare his jurisdictional competency (Varela April 2010 Auto: 12).77 Varela highlighted various aspects of the timing and sequencing of Garzón’s actions in the case, as well as the presentation of his reasoning in the 2008 auto, to argue that Garzón had been fully conscious that he didn’t have jurisdiction, but decided to go ahead and claim it anyway so that he could personally take control of the exhumations and truth-seeking process in Spain. To underscore what he saw as the problematic nature of Garzón’s actions, Varela devoted several paragraphs to explaining the necessarily limited role of a criminal court judge in a constitutional democracy. He argued that it is the responsibility of the elected parliamentary majority to realize the citizenry’s “longings for justice” through relevant legislative changes, and that, so long as these are determined to pass constitutional muster [which only the Constitutional Tribunal can decide], the laws so decided are binding on judges. No matter how “honest or well-intentioned” a judge may be, s/he cannot give flight to her “creative imagination” but must apply existing law: “That is the limit and also the raison d’être, the only one, of judicial independence in a democratic society” (Varela April 2010 Auto: 10).

Varela’s indictment set the wheels in motion for Garzón’s temporary suspension from office and his formal oral trial by another (seven-member) panel of the penal chamber of the Supreme Court. The trial took place in late January/early February of 2012, and television cameras captured the highlights to broadcast in news programs throughout the country. Against the objection of Garzón’s accusers, the Court allowed oral testimony from a number of victims and representatives of victims’ associations (a first in Spain). The Court also rejected the plaintiffs’ request to read aloud Garzón’s

                                                                                                               74 Subsequently, two other far-right groups signed on to the complaint: the association Identidad y Libertad (Identity and Freedom) and the Falange, the latter of which was denied participation due to the fact that its complaint had centered on the direct naming of the Falange in Garzón’s auto (a political complaint). It should be noted that all three of these groups have a minuscule following in society. 75 Varela was a founding member of the left-leaning judicial association, Jueces para la Democracia, mentioned above at p. XX. 76 The reaction from victims’ groups in Spain, the international human rights community, and sympathetic media outlets was swift and strong. To many people inside and outside of Spain, it was shocking and shameful that, rather than the atrocities of the Franco era, it was Judge Garzón’s actions that were being investigated and tried as criminal. On April 24, 2010, there were massive demonstrations across Spain in support of Judge Garzón and, more generally, in support of justice for the victims of Francoism. It was the first time since the transition that average citizens had come out in force to protest the lack of justice. 77 Indeed, after Varela issued a quasi-indictment in a February ruling rejecting Garzón’s petition to close the case, Garzon’s defense lawyers formally accused him of having rewritten and “improved” the complainants’ case against their client.

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blistering December 1998 ruling to dismiss a criminal complaint filed against the Communist Party of Spain and its (at the time still living) leader, Santiago Carrillo, among others, for alleged crimes of genocide, torture, and terrorism carried out by pro-Republican forces at the massacre at Paracuellos del Jarama in 1936.78

On February 27, 2012, several weeks after the close of the oral trial, the panel issued its decision, absolving Garzón by a vote of 6 to 1.79 The Court argued that he was not guilty of “prevaricación,” since his October 16, 2008 resolution had been grounded in what Garzón held to be legally legitimate arguments, supported by some jurists in Spain and many more in other jurisdictions (such as the Inter-American). They made it quite clear, though, that Garzón had made a number of legal “errors.” First, they argued that the criminal procedure in Spain is an inappropriate vehicle for the pursuit of the truth about past crimes, at least insofar as there is not a (potentially) live suspect to participate in the process (and they later note that Garzón could not have been unaware that the leaders of the Nationalist uprising were all “notoriously dead”). They acknowledged that victims of the Civil War and Francoism have a reasonable and legitimate claim to know what happened to their loved ones, but contended that the courts are neither designed nor equipped to produce the kind of historical truth that the victims’ groups in Spain now seek. They endorsed, however, the idea of a state-led truth commission to satisfy the “legitimate and necessary” search for truth (Fallo, Fdo. Primero). Second, they contested Garzón’s reasoning regarding the classification of the crimes as “crimes against humanity,” not because they denied the severity or magnitude thereof,--indeed, a subsequent part of the decision spelled out how and why the crimes of Francoism substantively fit that contemporary definition; rather, they noted that according to the fundamental principles of legality enshrined in Spanish law and jurisprudence (and generally accepted by jurists around the world), this technical classification cannot be applied retroactively (and they disagreed with Garzón’s references claiming it was not) (Fallo, Fdo. Tercero, punto 1). Third, and relatedly, they argued that international treaties ratified by Spain also cannot be applied retroactively to make past crimes imprescriptible or unamnestiable, even if this had been done in other jurisdictions (so far, they noted, the European Court of Human Rights had not embraced such a doctrine). They then offered a contextualized defense of the Spanish amnesty law, claiming that it was “an essential pillar [of the transition], unsubstitutable and necessary for overcoming Francoism and all                                                                                                                78 In the Paracuellos ruling, Garzón had made many of the same points that Zaragoza made against his October 16, 2008 ruling (re. retroactivity, statutes of limitations, amnesty, etc.), and had accused the plaintiffs of a “lack of even the minimum required legal rigor,” the abuse of Law, and, due to the “lightness with which they take the basic norms of our legal order,” questionable professional ethics (Gil Gil 2009: 90-1). In its absolutory decision, the Court attributed Garzón’s complete about-face on these issues to a change in his legal opinion over the ten-year period that had ensued, but noted that, in their view, he had been correct in 1998. 79  Unfortunately, Garzón had already been found guilty and suspended from office in a separate case in which he had authorized illegal blanket wiretappings of conversations between defendants and their lawyers in an investigation of widespread corruption in the right-wing Partido Popular. His supporters quickly cried conspiracy, arguing that the political Right had orchestrated what amounted to a legal lynching of Garzón to get him off the scene. For a reasoned contestation of such charges by one of the (Left-leaning) members of the penal chamber of the Supreme Court, including a very clear explanation of the facts and procedures in the three cases against Garzón that the Court handled over the past several years, see Andrés Ibáñez 2012.  

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that it entailed” and that because the transition was “the will of the Spanish people…no judge or tribunal…can question the legitimacy of that process” (Fallo, Fdo. Tercero, puntos 2 and 3). Finally, they contested Garzón’s claim to jurisdiction based on the “crimes against High Organisms of the Nation” in the (old) penal code of the 1930s, which, even if it could be invoked today, reached the statute of limitations in 1956 (fdo xx). To close, however, they reiterated that interpretive errors do not rise to the level of prevaricación, particularly in a case involving international criminal law, which is in a state of active development: “In any case, international legal norms on the protection of human rights, in permanent discussion, are favoring important juridical debates that today impede a categorical pronouncement on their scope” (fdo xx).

All of the judicial rulings outlined above are, to be sure, conservative, in the most literal sense of the term: they preserve existing legal rules and interpretations and block the attempt on the part of Baltasar Garzón to alter these in the name of justice. However, a contextualized and comparative reading of these rulings reveals three things: First, Spanish judges are legally but not necessarily politically conservative (much less “fascist,” as some have alleged). Second, and relatedly, this legal conservatism is very much informed by a view that ties amnesty, legality and democracy together as an anti-Francoist response. And third, in their adherence to legal principles, Spanish judges are not behaving in a way that is significantly more (legally) conservative than their Chilean counterparts, but the latter operate in a context in which the timing of the atrocities and the legal mobilization to address them provide openings that are, frustratingly, unavailable to legalist judges in Spain.

On the first point, it is important to note that the negative legal response to Garzón’s 2008 ruling(s) was not limited to conservative jurists. Indeed, none of the rulings or votes broke down along “conservative” and “progressive” lines, and, most notably, Garzón’s indictment was written by a veteran of the left-leaning judicial association, Jueces para la Democracia (Luciano Varela).80 Moreover, multiple judicial actors along the way expressed sympathy with the victims’ organizations and a shared view of the barbarism of the Franco era; they agreed that the state had a legal duty to identify graves, exhume bodies and provide reparations; and they supported the idea of a state-sponsored truth commission. In other words, they understood and endorsed the substantive objective of addressing the just and legitimate claims of the victims. However, what comes through in the various legal documents surrounding the case (as well as in secondary documents) is a concern that meeting this objective not come at the expense of fundamental legal principles that were the fruits of a hard-fought battle against and deliberate rejection of Francoism, nor through a process that elevates unelected/ unaccountable judges—especially not a single juez de instrucción—over the democratically elected representatives of the citizenry.81 As one much-cited Spanish legal analyst put it shortly after Garzón issued his 2008 ruling:

It is very probable that the intention of the investigating judge [Garzón] is not criminal prosecution—to be sure, the list of accused is limited to

                                                                                                               80 Given this, the media, and Garzón himself, have tried to attribute the opposition of known leftists to personal or partisan animus, but this is hard to sustain in many cases. See Napoleoni 2011. 81 As one of my (very solidly Left-identified) former judge friends put it, “Garzón was not indicted (formally or informally) because he tried to investigate the crimes of Francoism; Garzon was indicted because of the way he went about it.”

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people who have already passed away—but rather to amend the work of the legislator in an area where many of us might find that it fell short….[But] in my opinion, the work of trying to force the legislator to change the law and take on particular tasks should be taken on preferably by other sectors and social forces – NGOs, unions, associations, academic doctrine, etc. – and not by a judge, out of respect for the separation of powers that holds in a constitutional and democratic rule of law system (Gil Gil 2009: 165).

Another influential criminal law scholar (and former justice of the Spanish Constitutional Court), responding to the uproar caused by Garzón’s indictment in 2010, was more forthright:

Poor is any defense of [Judge Garzón] that is grounded in arguments that don’t respect basic principles of the Rule of Law.... The Rule of Law does not permit one to bring to bear personal conceptions of justice, no matter how important or correct they may appear to us. [The latter results in] un Estado de justicia, a state in which personal convictions about what is and is not just prevail over the laws, [and] this would either be a state of permanent war, in which liberty would be constantly repressed, or a tyranny exercised by those that had enough power to impose their ideas about what is and is not just…. [I]n a Rule of Law [system], it is not possible to have somebody who is exempt from the Law, legibus solutus, especially not a judge. Such an image is so uncivilized, so undemocratic, and so grotesque that it is only possible to defend it using approaches that are self-interested, irresponsible, or adopted without reflection (Vives Antón 2010: 2).82

These two citations help flesh out the perspective of left-leaning jurists and judges who, even if they did not agree that Garzón should have been tried for prevaricación in this case, still felt his ruling was a “risky way of acting,” a folly that constituted “a true abuse of process” (Andrés Ibáñez 2012: 22).83

A second thing that comes through in these documents is that the judicial and legal elite, like the dominant political coalition in general, have a deep attachment to the 1977 amnesty law, imbuing it with a meaning and significance that goes far beyond mere legal formalism. While they might be open to the idea of a full investigation before the application of amnesty (i.e., a version of the “Aylwin doctrine” in Chile),--at least for cases in which there are no questions of retroactivity or statutes of limitations, and where suspected perpetrators are still alive (see Gil Gil 2009: 86 and 101),--declaring the amnesty law itself illegitimate and inapplicable is clearly beyond the pale for them. Vives Antón, for example, underscores that “in contrast to others, our Amnesty Law was not a pardon that the executioners gave themselves, but rather one that received the support of almost all of the political forces and the backing of almost the entire Spanish

                                                                                                               82 Tomás Vives Antón is a criminal law professor that served on the Spanish Constitutional Court from 1995 to 2004 (pol background on Left, but find out specifics).  83 Perfecto Andrés Ibáñez, another veteran of Jueces para la Democracia, sat on the panel that heard the oral trial of Garzón. He maintains that Garzón’s ruling did not amount to prevaricación, for the reasons offered by the Court, but argues that the “illegality and flippancy of the behavior” should have been noted in a resolution dismissing or closing the case without sending it to trial (2012: 22).

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people,” and while “the decision may be discussed, it is nothing to be ashamed about” (Vives Antón 2010: 1). To be sure, the equivalency that Garzón’s ruling implicitly made between the self-amnesties of the Southern Cone and the Spanish Amnesty Law of 1977 appears to be one of the major aspects of the ruling that riles critics, especially those active in the transition (see Juliá 2011).84 Aguilar (2008: 473) states that the generation that forged the political change in Spain, “that born between 1941 and 1950,” is less open to transitional justice measures, perhaps because “this cohort attributes a good part of the success of the transition precisely to the fact that the past was left out of the political debate.” With this in mind, it is interesting to note that seven of the 13 members of the penal chamber of the Supreme Court that processed the complaints against Garzón (from the admission of the querellas to the oral trial) were all born in the 1940s, and the remaining six before 1955. As noted above, they are not necessarily opposed to transitional justice measures, but they bristle at the idea that these should come via an attack on the foundational “pillar” of the transition. This brings me to a final point, which is that in adhering closely to basic legal principles (such as irretroactivity, statutes of limitations, etc.), in refusing to rule the amnesty null and void without explicit legislative action, and in privileging domestic law over international law, Spanish judges are not really that much more legally conservative than their Chilean counterparts. As noted above (p. XX), even in the most dramatic decisions, Chilean judges have been legally careful and conservative, making sure not to violate established legal rules and principles. While opening up to arguments from international law since 1998, they have preferred to ground pro-accountability decisions in national law, and they have still not gone so far as to declare the amnesty law illegitimate on its face (though they would have to stretch far less than the Spaniards would in order to do so). It bears repeating that Garzón’s October 16, 2008 ruling was, from a legalist perspective, extremely radical and seemingly lacking in any measure of strategic prudence.85 This is evident in the judicial rulings responding to it, which accused Garzón of doing "legal pirouettes" (Varela indictment) to construct a "singular juridical scaffolding" (Zaragoza's original appeal) such that, essentially, he could, by judicial fiat, convoke a proxy truth commission (comisión de expertos) under his leadership and control in the Audiencia Nacional, to which every institution in Spain would be required to report on all of the reported disappearances from 1936 to 1952. It thus appeared that Garzón was personally trying to commandeer the highly fraught process of dealing with the past in Spain, and, by going directly after the general applicability of the amnesty law, that he was single-handedly attempting to redefine the transitional pact, thumbing his nose at the political class, past and present. The fact that he did not limit or focus the investigation to any particular event but declared that he was investigating all the crimes for a sixteen-year period (ending seemingly arbitrarily at the end of 1952, as Juliá (2011: 187) notes), made it seem like he was launching a “causa                                                                                                                84  “Paul Watzlawik teorizó hace años sobre lo que llamó ultrasoluciones: la fórmula infalible para convertir un problema en irresoluble es buscarle una solución tan extrema que provoque el caos. Garzón buscó una solución exagerada para atender al amparo solicitado por familiares de víctimas del franquismo que querían inhumar a sus deudos, y, queriendo justificar su competencia como juez penal en el caso, tomó iniciativas cada vez más radicales, incluyendo una reinterpretación de la Ley de Amnistía de 1977 como equivalente a las de punto final del Cono Sur” (Unzueta 2010). 85 Unless his intention was purely political, in which case he succeeded by making a huge media and political splash, ironically (and presumably unwittingly) fueled and expanded by his prosecution.

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general,” which had strong echoes of Franco for some. It is thus problematic, at best, to conclude that the judicial response to Garzón’s ruling is a faithful reflection of judicial attitudes toward (post-)transitional justice in Spain. Indeed, I would go so far as to say that everything that has happened to Garzón since October 16, 2008 is much more about Garzón and Garzón’s actions than it is about general judicial attitudes to transitional justice in Spain (Hilbink 2011). Conclusion (in progress) Comparing the strikingly divergent outcomes in post-transitional justice in Spain and Chile, it is tempting to conclude that an important part of the explanation lies in the different political orientations of judges in the two countries: Spanish judges, it would appear, are ideologically very conservative and thus unwilling to investigate or prosecute Franco-era human rights violations, while Chilean judges are more liberal or progressive and thus have the political will to address human rights crimes. In this paper, I have argued that while the difference in post-transitional justice trajectories in the two countries is partly attributable to judicial attitudes, it is important to understand how and why those attitudes have developed and changed (or not) over time.

As Aguilar et al. (2011: 1403) note, speaking of attitudes toward transitional justice in the general population in Spain, “the broader context in which the individual lives, works, and relates to other people can…have an influence on attitudes toward policies…Within the community, the individual interacts according to a particular set of cultural repertoires and discourses, and there is peer reinforcement of these discourses.” My claim in this paper is precisely that judges in Spain function within a legal community where a “particular set of cultural repertoires and discourses” has been reinforced over time, with very few counter-hegemonic initiatives or opportunities. In Chile, by contrast, private and public accountability actors have worked for decades to alter the “cultural repertoires and discourses” dominant in the Chilean judiciary since long before the 1973 coup (Hilbink 2007a), and, at least in the domain of authoritarian-era human rights abuses, they finally succeeded in achieving a shift in judicial receptivity starting in the late 1990s (Huneeus 2010; Collins 2010). But Chilean judges didn’t start demonstrating this receptivity because they were all progressive or morally superior to judges in Spain. They did so, haltingly and incompletely, in response to pressures and opportunities presented to them by the social, political and legal context.

If the Spanish judiciary is “conservative” on this issue, I contend it is less because of a political conservatism (that is, because of an affinity with Francoism or a hostility to the claims of the victims of the Franco regime) and more out of a legalist conservatism. As noted above, Spain is actually not that different from Chile in this regard; the judges are just functioning in different legal contexts.86 And while it is fine to critique legalism (see Shklar 1986), it is also important not to dismiss legalist positions outright and across the board as a mere cover for authoritarian sympathies.                                                                                                                86 Alas, Spain is much more like El Salvador, where Collins (2010: 213) notes that even a “case-by-case litigation strategy…faces technical obstacles, including prescription due to the almost complete absence of early judicial activity.” In Chile, the persistent action of human rights organizations kept statutes of limitations from lapsing, making things easier for legalist judges; but the absence of such mobilization in Spain renders the legal situation there more like that of El Salvador,--only worse, given that the most serious Spanish atrocities are from 60 or more years ago. (This also complicates efforts to invoke international law for the Spanish case. See Gil Gil 2009.)

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Socio-legal implications of this analysis: Progress in accountability is not made by judicial fiat…have to chip away, build coalitions, strategize, cultivate political support in particular cases… Sikkink’s cases all show civil society activism and legal mobilization around these issues, and/or regional pressure… Garzón did not have a huge bevy of lawyers, citizens, and politicians to back him up on his efforts. There were no significant demonstrations until after he was indicted!! I absolutely feel that more can and should be done in Spain to address the rights of the victims and, as an explicit commitment to “never again,” to offer an official accounting of all the barbarities committed from July 17, 1936 forward. Indeed, so do many of the Spanish judges and jurists who are critical of Garzón’s actions. However, I also think critics need to be careful not to “throw the baby out with the bathwater” by writing off Spanish judges as “fascists” or portraying their commitment to legality as anti-democratic or anti-human rights. Note possible comparison with South African Constitutional Court Justice Albie Sachs’s strong legalism and his view of it as "soft vengeance" against a regime that had no respect for these principles (Sachs 2009). People may not agree with Sachs, but his position is hardly immoral (indeed, it’s admirable, given his personal history), and it deserves to be civilly and thoughtfully engaged. References Agüero, Felipe. 1998. “Transición Pactada?” El Mercurio, November 20, 1998, p. ---. 2004. “Authoritarian Legacies: The Military’s Role.” In Katherine Hite and Paola

Cesarini, eds., Authoritarian Legacies and Democracy in Latin America and Southern Europe. Southbend, Ind.: University of Notre Dame Press.

Aguilar, Paloma. 2002. Memory and Amnesia: The Role of the Spanish Civil War in the

Transition to Democracy. New York: Berghahn Books. ---. 2008. Políticas de la Memoria y Memorias de la Política. Madrid: Alianza Editorial. ---. 2012. “The Spanish Amnesty Law of 1977 in Comparative Perspective.” In Francesca

Lessa and Leigh Payne, eds. Amnesties in an Era of Accountability. New York: Cambridge University Press.

Aguilar, Paloma, Laia Balcells, and Héctor Cebolla-Boado. 2011. “Determinants of

Attitudes Toward Transitional Justice: An Emprirical Analysis of the Spanish Case.” Comparative Political Studies 44 (10): 1397-1430.

Aguilar, Paloma and Katherine Hite. 2004. “Historical Memory and Authoritarian

Legacies in Processes of Political Change: Spain and Chile.” In Katherine Hite and

   30  

Paola Cesarini, eds., Authoritarian Legacies and Democracy in Latin America and Southern Europe. Southbend, Ind.: University of Notre Dame Press.

Aja, Eliseo. 1978. “Presentación.” In Gregorio Peces-Barba, ed., La Izquierda y la

Constitución. Barcelona: Edicions Taula de Canvi. Andrés Ibáñez, Perfecto. 2012. “Casos Garzón: Necesario Distinguir.” Prepared for publication in Questione Giustiza (Italy). Manuscript on file with the author. Badilla, Ivan. 1990. “Hacer Justicia Es Hacer Democracia.” ANALISIS (Jan. 15): 9-11.

Bastida, Francisco. 1986. Jueces y Franquismo. Barcelona: Editorial Ariel. Beirich, Heidi. 1998. “The Role of the Constitutional Tribunal in Spanish Politics (1980–

-1995).” Ph.D Dissertation, Purdue University. Bereijo, AR. 2003. “Los derechos fundamentals en España.” El País Extra: La

Constitución del XXI, 6 December, 2003, p. 20. Binningsbo et al 2005 Cercas, Javier. 2009. Anatomía de un Instante. Barcelona: Mondadori. Collins, Cath. 2010. Post-Transitional Justice: Human Rights Trials in Chile and El

Salvador. University Park, Penn.: Pennsylvania State University Press. Couso, Javier. 2002. “The Politics of Judicial Review in Latin America: Chile in Comparative Perspective.” Ph.D. dissertation, University of California, Berkeley. Couso, Javier, and Lisa Hilbink. 2011. “From Quietism to Incipient Activism: The Ideological and Institutional Roots of Rights Adjudication in Chile.” In Gretchen Helmke and Julio Ríos-Figueroa, eds., Courts in Latin America. New York, N.Y.: Cambridge University Press. Dahl, Robert. 1957. “Decision-Making in a Democracy: The Supreme Court as a

National Policy-Maker.” Journal of Public Law 6: 279–295.

Díaz, Elías. 2007. Interviewed by Lisa Hilbink, Madrid, Spain, May 17.

Dorado, Roberto, and Ignacio Varela. 1993. “Estrategias Políticas durante la Transición.” In José Félix Tezanos, Ramón Cotarelo, and Andrés De Blas, eds., La Transición Democrática Española. Madrid: Editorial Sistema.

Dyzenhaus, David. 1991. Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy. New York: Oxford University Press. (IPSA page limit reached here. Remaining references can be requested from the author.)