Safeguarding or cleaning up democratic transitions? Judicial activism in Spain.

Antoni Abad i Ninet, SUNY Buffalo

Abstract

This paper intends to address a topic that everyone is talking about in Spain, a real vox populi issue. Has Baltasar Garzón exceed his functions as a Magistrate accepting for consideration several criminal actions against the heads and military of the Franco regime? Is the Judge playing politics or simply exercising functions of the judicial office? Baltasar Garzón is by far the most popular and well-known Justice in Spain. Long before the worldwide renowned prosecution of Pinochet, Videla and other South American military coup dictators, Garzón had dealt with some of the most important criminal cases of the country, and his prosecutions targeted both public and notorious persons and issues. The question analyzed in this paper is whether Baltasar Garzón has done judicial activism in a concrete judicial decision, the Auto of October 16, 2008 (PA: 399/2006 V). The main reason for selecting this particular decision is, as we will see, the huge political and social resonance it had in Spain. Also, this is a case in point to compare the Spanish case with other cases of democratic transitions (Poland and Hungary) focus on the role of judicial activism.