Strengthening Institutional Restraints garzon real

Baltasar Garzon Real, 10th IACC, Speech, Governance

 

Baltasar Garzon Real:

Good morning. Thank you, Mr. Chairman, I would like to express my thanks to Transparency International for inviting me here, and I would also like to thank this organization for the enormous work it has been doing throughout the world. Perhaps we can ask the following question. Who can help, who can be helping investigating judges such as myself in our country? Who can actually assist the investigating judge in his fight against crime, against economic crime, organized crime and similar criminal activities? Let me propose the first statement to you: The main and principal advocate of the independence of judges should be the justice systems, that is, guaranteed safeguards that are incorporated in these systems and also the integrity of its members. What I mean is that if a country has formed an independent judiciary, totally independent of political powers, and has put in place external and internal checks and safeguards, then there is a very good chance for a prosecutor or an investigating judge to be able to investigate corruption without fearing censorship or sanctions against him. From my point of view, it is the first and very important element in the whole chain, which represents the whole system of justice.

The first and foremost element in this chain is judicial independence. In some countries judges are more instruments, toys in the hands of the political power of those who appoint them, who can replace them, recall them according to their discretion. This means that judicial independence, the independence of judges, is sometime the target of corruptive practices, especially economic corruption, corruption targeted towards those who nominate, who withdraw, who replace judges. Very often you do not even have to target a particular judge because the judges themselves are more than forthcoming. That's why we are advocating genuine independence. But still we do not have enough means and possibilities to protect this independence, especially when we have to deal with very difficult cases in which the political or economic power structures are implicated, or in which a strong private sector is implicated. Sometimes the judges are under the pressure to please these strong actors. How should we deal with this issue, how should we solve this problem?

We should have a good system of selection of judges, assessment and evaluation of judges; also, proper remuneration of judges is crucial. It is very important to have a good system in place to make sure that a judge can continue and finish a case he has started dealing with. Certainly, there should also be penalties and sanctions envisaged by the system. I am a little afraid of opening justice to external control as I believe that whatever has been said within the judiciary should remain there. Therefore, in the first place, controls should be of an internal nature. On the other hand, there is one other element of major importance, namely specialized bodies, institutions charged with fighting corruption, such as a Special Prosecutor's Office established to investigate and deal with acts of corruption and related crime. There is a problem, however, which has been discussed for quite a long time, since 1995, i.e. that such a body is being established only following a series of economic scandals due to economic crime. Fears have been expressed that a body like this will hardly be able to exercise full independence.

There is also a hierarchical structure here - a prosecutor in charge of economic matters reports directly to the General Prosecutor who determines which cases should be dealt with by this Special Prosecutor's Office. It is also quite possible that a clash of interests might occur between those who demand stricter independence of prosecutors, on the one hand, and those who hold the reins of political power, on the other. So, while we do have a special corruption prosecuting office, it does not enjoy full independence, not on the same level that is enjoyed by the Special Prosecutor's Offices designed to fight drugs or terrorist activities. We have a whole range of experts, both in the public and the private sectors, who help them fight corruption. These experts again report either to the prosecutor, or to an investigating judge such as myself. These people are experts working for all types of organizations in the public and the private sectors. They are professionals who know also how investigations should be conducted. Throughout the investigation of a case, they work for the judge or the prosecutor, they cannot be recalled. There are safeguards and guarantees in place to prevent any action being taken against these experts because they have a key role to play in cases of corruption.

Another important factor is the cooperation between national and international organizations. In Europe in general, and in Spain in particular, we are very well aware of the importance of fighting fraud, fraudulent activities in the European countries. By means of agreements and cooperation, a specialized organization has now been working closely with prosecutors, offices and also with judges, especially in the field of evidence collection for judicial trials. An argument in favor of judicial independence is also that there are, or there should be standards, rules regulating how the judiciary acts. Not always does the government of a state meet all requirements of domestic and international legislation, not always are anti-corruption laws fully implemented. On the 26th of January, the EU proposed a convention. However, this convention has not yet been adopted by any country, including Spain. This convention has not even been signed yet. One issue is currently being hotly debated in Europe, namely that of legislative and judicial cooperation throughout Europe.

Corruption does not always take place just in one country. Very often we have corruption in several places. This is especially the case with the multinationals and organized crime, and this is why it is so important that the judges and law enforcement cooperate. This is why the convention on the cooperation of judges held on the 29th of May of last year is of such enormous importance. Some countries such as Italy have already signed the convention; however, that country´s Senate has just signed an act of law, which in fact goes against everything that the convention contains. There are certain aspects, certain statements about formal insufficiency for cases when, it appears, the validity of the standards is abolished and cannot be applied retroactively. This means that all the cases we are working on at the moment - in fact I have a number of open cases which concern specific persons, highly placed officials - may quite possibly not be further investigated because the act that has been passed cancels the validity of the convention. Italy should in fact be the opposite example... Actually, what is no longer valid is the principle of so-called second accusation, as there are many forces in favor of the opposite principle. Moreover, there are certain standards in many countries that define as an offence or crime something that is not an offence. These standards fail to observe the Palermo Convention of December of last year, which includes Article 8 that requires the presupposition concerning corruption.

I would also like to mention tax havens and bank secrecy. This cannot be an obstacle for conducting prosecution - a point stipulated in the articles of the convention. However, as I have said before in connection with various other problems, over the years it has been almost impossible to obtain materials or any sort of reply from other magistrate's courts in foreign countries at the time when we needed it, when the country that was requesting the materials needed them. Very often it was said that bank secrecy makes it impossible to collaborate within the judiciary system on the international level. We are aware, however, that this collaboration is vital. It was recently stated at the conference of special forces that this kind of legislation should be passed as soon as possible and that it should deal with the questions of specific figures, account numbers, owners of the accounts. It was also observed that frequently we were unable to continue with the prosecution because while we did receive the data about the person in question, collaboration between the courts was usually refused. There was a specific case, on Jersey Island, where a year ago we began to communicate asking for collaboration. We requested only one thing - the identification of certain subjects, or persons - in hope of receiving a confirmation on who was using certain accounts for criminal purposes. These days, and this is of great concern to us, there are certain other matters as well. I would like to seize this opportunity to ask these experts to do more than what we were discussing at the beginning of the year.

Mr. Ocampo said that we cannot just speak, but that deeds are necessary to contain corruption. This is how I feel as well and this is why I have decided to set up a group of experts who will focus on combating corruption in the judiciary and also in prosecution. We have decided to monitor certain funds which could have disappeared or fallen into the hands of certain persons in places where investigation cannot be carried out and where we need support. This is why we have set up a foundation under the umbrella of several universities that have decided to collaborate with us. I would like to use the tenth anniversary of the death of Mr. Falcone to point out that this issue is highly topical. We must solve it. We must cope with it. Maybe it will not be a fight, but we must certainly face it. Thank you.

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