Brian Barder, who has died aged 83, was one of the most energetic and politically committed diplomats of his generation. In retirement, he campaigned against injustices in the British legal system. From a range of postings from New York to Australia, the Soviet Union, Canada, Poland and Nigeria, his most gruelling but rewarding service came as Britain’s ambassador in Addis Ababa during the great Ethiopian famine of 1984-85. As the crisis developed, he waited with trepidation at an airfield in the capital with his wife, Jane. Media barons such as Robert Maxwell and rock stars including Bob Geldof were helping to fuel massive media and parliamentary pressure for Britain to help to feed the millions of starving people.
The UK government decided to send three RAF Hercules freight planes with aid. But after constant effort Barder had still not managed to get official clearance for them to land. Ethiopia’s socialist leadership was split, with hardliners arguing that no planes from a Nato air force should be allowed inside their country. Their main weapons supplier, the Soviet Union, took a similar line.
All that Barder could rely on was an unofficial last-minute telephone call from a senior member of the Ethiopian leadership, explaining that no agreement would be announced but the RAF planes would not be stopped from landing and could tacitly operate further flights.
It was a tenuous and easily deniable promise. As the Barders anxiously watched, the Hercules appeared in the African sky. There were no oil drums on the runway and no fighter planes ready to shoot them down. They landed safely and for the next 14 months regularly brought supplies for air drops to the famine-ridden highlands without ever getting official permission.
Beside the tension over the RAF’s role, Barder had to cater for “famine tourists” or “grandstanders on ego trips” who, he later recalled, usually expected meals at the residence. He and Jane were happier to give hospitality to genuine relief workers when they came out of the highlands for a rare break.
Born in Bristol into relatively well-off circumstances, Brian was the son of Vivien (nee Young) and Harry, a descendant of Polish Jewish immigrants and a successful furrier. His parents divorced when Brian was four, and he was sent to a boarding preparatory school and then Sherborne school, Dorset.
At St Catharine’s College, Cambridge, where he gained a degree in classics, Barder was active in student politics and became chairman of the Labour Club. In 1956 he met Jane Cornwell when both were canvassing, and they married two years later. He remained a party member until his death, standing down for a few years towards the end of his diplomatic service only because he felt it was appropriate to be non-partisan while serving as an ambassador or high commissioner.
After taking the civil service exam he started in the Colonial Office in 1957, and in 1964 was sent to the UK desk at the UN on four-year secondment to the Foreign and Commonwealth Office. It was the peak of decolonisation, and Barder met most of the leaders of the African independence movements, sparking his lifelong interest in the continent.
Back in London during the Biafra crisis in Nigeria, he made daily visits to Downing Street to brief Harold Wilson. During a stint in Moscow (1971-73) he was subjected to intimidation by KGB thugs who frequently jostled him and his wife in the lift going up to their flat in retaliation for the Heath government’s astonishing decision to expel 105 Soviet diplomats as alleged spies.
As ambassador in Poland (1986-88) when the Solidarity trade union movement was still banned, Barder frequently met its leader Lech Wałęsa in the Gdansk shipyards. Other Solidarity activists were invited to the Warsaw embassy. These encounters were designed to offer them protection.
Barder was knighted in 1992, during his final diplomatic posting, as high commissioner to Australia (1991-94).
In 1997 he was invited to join the newly created Special Immigration Appeals Commission as its lay member, sitting alongside two judges. The layperson was required to have security clearance and experience in assessing secret intelligence, as the SIAC’s job was to adjudicate cases of people whom the government wished to deport without giving defence lawyers the chance to know or challenge the reasons.
In 2004, when the home secretary, David Blunkett, gave the SIAC the additional job of examining the cases of people who were to be detained without trial because they were allegedly threats to Britain’s security, Barder resigned. His opinion, later endorsed by the law lords, was that sending people to prison without charge or trial breached the UK’s obligations under the European Convention on Human Rights.
Barder moved on to the issue of indeterminate sentences, a procedure also promoted by Blunkett whereby people could be sentenced on conviction to a “tariff” of a fixed number of years but then be held indefinitely in prison after serving the “tariff” if the authorities felt they would pose a threat to society on release. Barder considered it a Kafka-like system, since people had to refute subjective assessments about their future behaviour and there was almost no funding for them to make their case from behind bars or with adequate legal assistance.
Barder blogged and regularly had letters printed in the Guardian and other newspapers to on issues including indeterminate sentences. Always convivial, he was a man of great generosity who was often contacted by partners or relatives of people given these unfair sentences, and he corresponded with many of them.
When the Conservatives took power in 2010 Barder started informal contacts with the Ministry of Justice under Ken Clarke, who also deplored the system and was battling against Theresa May as home secretary to have it abolished. Though it was finally stopped in 2012, some 2,200 prisoners who had been given these sentences before abolition and have served their tariff are still in custody today.
In 2014 Barder published What Diplomats Do, an imaginary account of the typical duties and challenges faced by a diplomat as he or she progresses up the career ladder, interspersed by reminiscences of key events in his own life. The book is probably the most useful introduction currently available for anyone thinking of diplomacy as a career.
He is survived by Jane and their children, Virginia, Louise and Owen.
• Brian Leon Barder, diplomat and civil rights campaigner, born 20 June 1934; died 19 September 2017
At 4.30am on 22 November 1995, taxi number 69 pulled into the Campsa Red petrol station in La Constancia, a scruffy neighbourhood in the centre of Jerez. The driver stopped at pump 1, got out of his car and dragged the nozzle to its fuel inlet, but the pump wouldn’t turn on. When he went to look for the attendant, he saw that the door to the station’s shop had been smashed. Magazines and papers were strewn across the floor. Then the driver noticed blood on the shop’s walls, and ran to a payphone to call the emergency services.
Within minutes, municipal police arrived. One of them found a trail of blood, which led to an office behind the cash register. When the door to the room wouldn’t open, they forced it open. Barricaded inside, behind a photocopier, a young man lay slumped on the floor, inert and bleeding heavily. He was still breathing.
Five minutes later, a team of paramedics crammed into the cluttered office. Covered in blood and surrounded by medical equipment, they tried to staunch the young man’s wounds. But by 4.45am, Juan Holgado was dead.
Just after 5am, Manuel Buitrago, the acting magistrate who would oversee the criminal investigation, arrived at the petrol station. Buitrago, who was 41 and had never handled a murder case before, immediately ordered a thorough inspection of the premises. Investigators found a large juice carton stained with blood, a button ripped from a raincoat and a pendant engraved with the sign of Virgo. They collected 23 fingerprints from the scene, though at this stage it was impossible to know whether any of them belonged to the perpetrators or to the customers who had entered the petrol station that day.
The shop floor and office had not been cordoned off, and as word of the murder spread, the crime scene became increasingly chaotic. By 5.30am Buitrago found himself surrounded by paramedics, consultant criminologists, police officers and local journalists. While they trampled over one another, and sometimes the evidence, investigators were picking up crime-scene debris without using protective gloves.
The initial inspection of Juan’s body by a forensic scientist took place at 5.50am. There were 30 stab wounds in total – some relatively superficial slices across his face and hands, others deep gashes to his chest and the backs of his legs. The coroner later determined that they had been inflicted by an 18cm blade, like the ones used for carving Spanish ham.
To Buitrago, the violence of the attack suggested two or more male assailants. Records from the petrol station’s cash register showed that someone had bought the juice carton and a pack of cigarettes at 4.02am, but there was no CCTV footage and no witnesses. Prosecutors would later conjecture that Juan’s killers had encircled him, slashing the backs of his legs so that he couldn’t run away, and then knocked him to the ground. Juan somehow managed to scramble to the small office at the back of the shop, but the attackers forced their way in and continued to stab him. There was no obvious motive. It seemed that Juan, who was 26 years old and had never been in trouble with the law, had simply been in the wrong place at the wrong time. He had even swapped shifts with a colleague that night.
Buitrago soon came to suspect that Juan’s attackers were drug addicts. By the beginning of the 1990s, Spain had become the primary entry point for the cocaine trade in Europe, and Jerez, 30 minutes north-east of the Bay of Cadiz on Spain’s southern coast, had begun to suffer from drug-related crime. There had been a series of recent robberies carried out in and around Jerez by the “Harpoon gang”, a criminal group that specialised in attacks on petrol stations. But the work of this gang had been efficient and professional, while the robbers who killed Juan seemed desperate and careless. They had ransacked the shop and failed to break open the station’s safe, making off with just 70,000 pesetas (480 euros) from the till.
It took Buitrago six weeks to detain the first suspects. The three accused were known criminals with a history of robbery and drug-dealing. (A fourth suspect was detained several months later.) Three of the four men had criminal records, and all four were known to the police as consumers of hard drugs. They all vehemently denied the charges against them.
News of the arrests soon made its way into the local press, and on 15 February 1996, they said the case was close to being solved. But for the victim’s father, Francisco, and his family, it was the beginning of a nightmare that has never ended.
When Francisco Holgado first learned of his eldest son Juan’s death, he reacted as many suddenly bereaved parents do. “I never believed that something like this could happen to me,” he told me recently.
For most of his adult life, Holgado had been a bank clerk. To his friends and neighbours, he was the respectable patriarch of a normal, middle-class family – husband to Antonia Castro, and father to their three boys and a daughter. But the murder changed him: “I was an ordinary man who was forced to unbelievable extremes,” he said.
In the months following the killing, as Spanish authorities struggled to solve the case, Holgado, then 51, grew increasingly obsessed with identifying his son’s murderers. Over the next two decades, his pursuit of justice came to consume his life. The Spanish press, upon discovering his story, championed his cause, and nicknamed him padre coraje, or father courage. But as the media portrayed him as a hero and the embodiment of paternal love, his own family was falling apart, and would eventually abandon him.
Today, two decades after his son’s death, Holgado looks younger than his 73 years, but talks with the tremulous voice of an old man. He is bald, with olive-coloured skin and a long, drawn face. He still dresses in black, and lives alone in government housing on a narrow, cobbled street in Jerez’s old town, surrounded by shabby, whitewashed townhouses and crumbling baroque mansions.
Every morning he wakes up at 7am in his small, dark bedroom. After breakfast, he goes to a local cafe to scan the newspapers. From here, he normally cycles to the cemetery to visit the grave of his son, to clean his tombstone and replace the flowers.
One afternoon this spring, Holgado interrupted his routine to take me to the neighbourhood of La Constancia. Passing through streets of anonymous high-rise blocks, Holgado stopped at a busy roundabout and pointed to a petrol station. Cast in the familiar red, orange and white of the Spanish petroleum giant Repsol, the building looked unremarkable. To Holgado, however, this is the place where his life fell apart – a memorial to his family’s suffering and to his attempts to make such suffering go away – which, in turn, only led to more suffering.
“I wonder what all the people who pass by would think if they knew what happened here 21 years ago,” he said. “And all that I became as a consequence.”
In the weeks following the murder,the Holgados grew increasingly angry about the lack of answers from the police, who had promised the family a speedy resolution. On 21 December 1995, three weeks before Buitrago made his first arrests, they rallied 3,000 people from all over the city for a “justice march” through Jerez’s historic quarter. Friends, politicians and strangers paraded through the narrow, serpentine streets of the old town, while neighbours yelled encouragement from windows and shopfronts. The following day the headline of the local newspaper, El Diario de Jerez, read “Weeping for Juan”.
The savagery of Juan’s murder had shaken many inhabitants of Jerez, where, despite the drug problems in the city’s poorer barrios, an atmosphere of conservative Catholic gentility still prevailed. “I remember everyone was talking about it,” Joaquin Rodriguez, a nurse and lifelong Jerez resident, said. “It struck many families that it could have been their own son.”
As the investigation dragged on through the spring and summer of 1996, with the prospect of a trial looking increasingly distant, the Holgados stepped up their demonstrations. Francisco Holgado visited the local constabulary every day to get the latest updates and he often joined Antonia in front of the magistrates’ court, where the pair would protest next to a large poster criticising Buitrago’s decision to release the defendants on bail. On the 22nd of every month, they held a rally in the city’s main square, calling for justice for their son.
From the moment it began, the official investigation into Juan’s murder had been a disaster. “The police entered [the crime scene] like bulls in a china shop,” José Luis Fernández Monterrubio, the head of the Jerez police at the time of the killing, would later admit. In autumn 1996, senior murder investigators from Seville joined the case, and uncovered further blunders by local police. Crucial evidence, such as the bloody juice carton, had been lost, and it emerged that several witness testimonies had been made under duress. The local paper began criticising the police and attacked Buitrago, claiming he had been sanctioned by the Spanish ministry of justice for the unnecessarily long time he had taken to investigate two previous cases. Buitrago would later claim that the criticisms of the Jerez police were exaggerated, telling the local television channel La Sexta, “Whoever arrived at the crime scene that day would have done the same thing. It was the way cases were worked back then.”
The coverage made Holgado even more sceptical of the authorities. On a visit to Juan’s grave in the sprawling, dusty cemetery of Nuestra Señora de la Merced on the city’s outskirts, he made a promise to the son he had lost. “I told him I would see his case through to the end, no matter what I had to do, no matter what the consequences,” he recalled. If the police would not solve the case, Holgado decided that he would.
By the beginning of 1997, two years after the murder, Holgado was living a double life. Every weekday morning at 6am, a bus picked him up to take him to his office in Seville, 60 miles away. He slept on the bus, worked at the bank until late afternoon, and came home to change his clothes. Then, several nights a week, he went out to wander through Rompechapines – a once-salubrious area of Jerez that had turned into a drug neighbourhood – desperately hoping to dig up any information related to the murder of his son. Until the early hours of the morning, he would visit smoky bars frequented by pimps and brothels in abandoned townhouses.
His early expeditions were “impromptu, very off the cuff”, Holgado told me. This was not wholly out of character. He could be an impulsive man. Once, in his 20s, when stationed in north Africa on military service, he had slapped a superior officer across the face during a game of football because the man had spoken to him rudely. Even after becoming a father, he always took opportunities where he thought he saw them, in spite of the tensions it caused at home. In Jerez, he moved his family from home to home – more than 10 times in 10 years – always searching for new properties that he thought were bigger and better. “He could be quite self-absorbed,” Paco, his second oldest son, told me.
Slowly, he became more organised and began pursuing leads he that picked up in the local press or from police officers with whom he was friendly. At crack dens in Rompechapines, Holgado had long conversations with half-stupefied junkies, who he enticed into conversation with cigarettes or tablets of Tranxilium, a tranquilliser prescribed for the chronic anxiety he had been experiencing since Juan’s death. While his subjects got high, Holgado smoked cigarettes and recorded everything on a Sanyo dictaphone he carried in a plastic shopping bag. At one point, a drug dealer he tried to interrogate threatened to put a hole in his chest with an industrial road drill if he didn’t stop with his questions.
On the weekends, instead of spending time with his family, Holgado would sit down to review his recordings. Usually, what he heard disappointed him: meaningless names, fanciful stories and dead ends. “Whatever made him think that he could better the efforts of a fully funded state police force was something I always found strange about Holgado’s escapades,” Manuel Hortas, a lawyer for two of the defendants, told me.
Holgado believed that what was holding his private investigation back was not his lack of expertise as a detective, but his local fame. Francisco’s face had been plastered across front pages, his “bravery in the face of tragedy” repeatedly lauded in El Diario de Jerez, his voice broadcast to listeners of the local radio station. He tried using fake names during his nighttime sorties, but he was often recognised.
One afternoon in late 1997, Holgado was at a cafe in the barrio of Asunción when a tall, spindly man with wild hair and an ill-fitting suit approached him. The man introduced himself as Pepe el Gitano (Pepe the gypsy). He told Holgado that he had some important news related to Juan’s case. If he wanted to hear it, they would have to meet later at a secret location.
Pepe never showed up at the rendezvous point. After months of investigating, Holgado was used to such disappointments, but Pepe lingered in his mind. It struck him that, in Jerez’s underworld, unknown people seemed to appear and disappear all the time. Why couldn’t he do the same?
At the end of March 1998,Holgado joined the queue of a methadone clinic in the Asunción neighbourhood. He wore a leather jacket, baggy jeans, a blue denim shirt and large tortoiseshell sunglasses. He also wore a medium-length wig, with dark brown hair parted at the side; affixed to his head, it looked like the clip-on hair of a Lego character. Introducing himself as Pepe, he began striking up conversations with addicts by offering a 50,000-peseta reward for a fictitious lost dog named Rufo.
After meeting Pepe, Holgado had decided that rather than interview people at random, he would focus his intelligence-gathering missions on the four suspects, who had been charged with murder but whose trial was not scheduled until the following year. He believed the police had the right men, but he did not trust them to uncover the necessary evidence for a conviction.
Holgado knew it would be impossible to follow all four defendants at once; they moved in similar circles, but as one of them would later claim, “we barely knew each other”. Two of the men were in and out of prison for other crimes, and another suspect had proven difficult to track down. Holgado had learned through local newspaper reports that the fourth suspect, Pedro Asencio, had stayed in Jerez since the murder, a requirement of his bail conditions, at the house of his blind father in Asunción. Asencio, who was 35, had a long history of heroin abuse and petty crime, and people who knew him had told Holgado he could be unpredictable and violent.
Holgado found Asencio at the methadone clinic, standing in the queue, his hands shaking from withdrawal. Holgado offered him a Tranxilium tablet and a cigarette to ease his nerves. The two men struck up a conversation, and Holgado told Asencio that he could get him more drugs if he wanted.
As the spring crept on, Holgado – always posing as Pepe – contrived more meetings with his mark. He would offer Asencio, who couldn’t drive, lifts in his car to visit his friends, to buy drugs and even to see his daughter, who was living with his ex-wife outside Jerez. Asencio, who was normally a very suspicious person, was charmed by Holgado. “I had been looking for ways to make quick money so I could take care of my daughter,” he later told the newspaper El Mundo. “What Pepe was offering me was what I was looking for.”
The more time the pair spent together, the more elaborate Holgado’s fictional identity became. He told Asencio about a gang he was connected to, which moved large quantities of cocaine through the north. He even employed the help of another local junkie, Jaime Monje Rodriguez, who, using the pseudonym Carlos, posed as Holgado’s gang contact.
Nearly two months into Holgado’s undercover operation as Pepe, Asencio told him that he suspected that Domingo Gomez and Francisco Escalante, his fellow defendants, were involved in the murder at the petrol station. Asencio claimed that he had seen Gomez give Escalante a bag of bloody clothes to throw in the bin a few days after the murder. “When Escalante saw the bag, he got spooked, and started yelling at Gomez to get rid of it,” Asencio said in a recording that would later be played in court. He told “Pepe” he hadn’t had any involvement in the crime himself. (Gomez and Escalante have also always maintained their complete innocence.)
By mid-1998, Pepe and Asencio were meeting two or three times a week. Around this time, Holgado quit his job at the bank; he could no longer work and investigate his son’s murder at the same time. He was just about keeping his anxiety in check with antidepressants, but his relationship with his family was becoming increasingly strained. Even before Juan’s death, his marriage had been fragile. Now, things were deteriorating under the strain of grief, with Antonia’s feelings about her husband’s late-night trips varying from day to day. Sometimes she would encourage him; other times, she could not understand why he went to such extremes. “I was uneasy about his trips,” she told me. “I, too, wanted justice for my son, but Francisco always had to make things unnecessarily difficult, and he had to do them his way, no matter what.”
Their son Paco, who had occasionally accompanied Holgado on his investigative trips before he assumed his undercover identity, agreed with his mother. He believed his father’s new endeavours were too dangerous, and probably futile. (The only other person who knew of Holgado’s double life was the family’s lawyer, Juan Pedro Cosano, who was supportive. “I thought it was an extraordinary act of bravery and love,” Cosano told me.)
Holgado’s life was not only coming apart; it was also in danger. According to Holgado, one day that summer, Asencio told Pepe he was going to kill Juan Holgado’s father. He had heard a rumour that Francisco Holgado, tired of constant delays in his son’s case, had bought a shotgun and was going to hunt him down. Asencio said he would get the old man first.
Holgado was dumbfounded, and in a moment of panic, he offered to do the job himself: Pepe told Asencio that he would murder Francisco Holgado to save his new companion from getting into further trouble.
“I saved my life by proposing to kill myself,” Holgado told me.
Despite the catalogue of errorscommitted by investigators in the wake of Juan’s death, they eventually built up sufficient evidence to bring to trial the four original suspects – including Asencio – who had been arrested six weeks after the murder.
In the days preceding the trial, Holgado sat down with his lawyer, Cosano, to sort through the 12 tapes he had recorded during the eight months he had spent undercover as Pepe. Holgado knew that such secrecy might pose legal problems, but it was a necessary risk to extract as much information as he could from Asencio. “We decided to hold the tapes back for the element of surprise,” Cosano told me. “We knew it was going to be a difficult trial and we needed to use every trick we could think of.”
On Monday 11 January 1999, the four defendants entered Cadiz’s Audiencia Provincial courtroom in handcuffs for the first day of the trial. When called upon to speak, Asencio, dressed in a brown, grey and white striped shirt, denied his involvement in the crime or any connection to Juan Holgado.
After Asencio had batted away a few further questions, Cosano asked: “Did you know that the person that went by the name of Pepe was, in reality, the father of Juan Holgado?”
Red-faced, Asencio said that he did not. But Cosano wasn’t finished; he then announced that his client had recorded hours of his secret conversations with the defendant. The courtroom reacted with astonished murmuring.
“It’s a moment I will never forget, the look on Asencio’s face when I told him, the reaction from the gallery when I mentioned the tapes – it was like something out of a Hollywood film,” Cosano said to me. (In a 2003 interview with El Mundo, Asencio claimed he had known of Pepe’s real identity before the trial.)
The judges stated they would need time to consider the admissibility of the audio evidence collected by Holgado. In the meantime, as the trial continued, the critical importance of the tapes became clear: there was a lack of physical evidence, such as fingerprints or traces of blood, to tie the accused to the murder; on the stand, several key witnesses retracted their earlier statements, including a prostitute who had confessed to seeing the blood-soaked suspects the night of the murder.
Then, on day four, the judges announced their decision on the tapes: they would not be admitted as evidence, as they lacked “legal guarantees of authenticity or integrity”. The case for the prosecution was looking increasingly thin.
Holgado had gone undercoverto solve his son’s murder, made friends with one of his son’s alleged killers and pledged to kill himself in order to save his own life. Now, midway through the trial, Francisco Holgado became a household name across Spain. But such renown would come with a price.
On Sunday 17 January, El Mundo published a profile of Holgado with the headline “Padre Coraje”. The article, written by a local journalist, Pepe Contreras, extolled the virtues of a father who had risked his own life to secure justice for his son. The writer, who spoke to Holgado at his home, focused on the bank clerk’s “sangfroid” in the face of danger, and the “rage” that allowed him to meet Asencio day after day. It turned the Holgados into celebrities overnight.
At the time, Antonia was not only dealing with the death of her son, but also recuperating from illness. Now, suddenly, her husband was a national hero, and the media were camped outside their house hoping for a word with Padre Coraje. Spain’s biggest newspapers and TV channels all wanted to hear his story. So, too, did the foreign press. (The Argentinean broadsheet El Clarín published an article about the case, describing how an Andalusian bank clerk “had pretended to be a criminal to seek justice, not vengeance, for his deceased son.”) Holgado seemed to excel in front of the microphone, and never demurred from discussing the details of his own heroism.
The next week, the defence and prosecution rested their cases, and the judges retired to consider their verdict. On 9 February, while Holgado was speaking to Portuguese journalists who had started making a documentary about the case, the judges announced their verdict: all of the defendants were acquitted.
Holgado was distraught, but now he had the nation’s attention, and as long as he held it, he thought he had a way to fight the court’s verdict. On 20 February, while his lawyer launched an appeal in the courts, Holgado locked himself in the petrol station where his son had died, threatening to burn the place to the ground if the company didn’t provide safer working conditions for its employees. Along with his daughter, Maria, he also graffitied public buildings with slogans such as, “Juan Holgado’s murderers still at large in the street,” and “Justice for Juan Holgado”.
Behind such shows of public unity and the idealised images of the family that appeared in the media, the Holgados were coming apart. Paco told me that he and his siblings sometimes felt that their father was being consumed by guilt at having been emotionally absent in the years before Juan’s death. “He had never really been affectionate with any of us before my brother’s passing,” Paco told me. Now he was absent again, immersing himself first in his undercover investigations, and then in talking to journalists. He had barely noticed when his son, Paco, left for Germany to work in a casino, at the beginning of 1998. Nor did he see how much his other children were struggling to cope with their brother’s murder.
Antonia felt that in interviews with the media, her husband exaggerated his bravery. “He never put himself at as much risk as people say,” she would later claim. “When he went to meet with Asencio he was always accompanied by someone else, even when he said he was alone,” she told me. She also believed he lied about the unity within the family, and stole the spotlight for himself rather than shining it on Juan’s case. She, too, had campaigned relentlessly for justice, organising marches and visiting the police station on an almost daily basis. “I never sought out media acclaim for all the sacrifices I made,” she told me.
In early 2000, the rift between Holgado and his family became unbridgeable when he sold the rights to a book and a TV drama based on Juan’s case. While Holgado travelled to Madrid to negotiate the contract with the national TV channel Antena 3, Antonia was in hospital, receiving treatment for an embolism in her lung. She had opposed the idea of a film, but now, bedridden, she was powerless to stop it. Holgado told his family he had only made the deal because the TV channel said it would shoot a film with or without his consent, but they didn’t believe him. When Holgado brought home some 6m pesetas from the deal (€36,000), Antonia accused him of taking advantage of the family’s suffering. “He prostituted his own son’s death,” she told me.
The film, entitled Padre Coraje, was first broadcast in March 2002. It depicted the Holgados as a family guided through their suffering by a brave, humble patriarch who had rubbed shoulders with a lurid cast of characters from Spain’s underworld in order to hunt down his son’s killers. Asencio, for one, believed the interpretation of his character was greatly exaggerated. “The king of the blade, ‘el Maquea’, and all that rubbish,” he told El Mundo, referring to the nickname that the screenwriter had given him.
Antonia could not bring herself to watch the film, but she saw its repercussions. Her life and her suffering were gossiped about over coffee in terraces all over Jerez. “I hated that people were entertained by our sadness,” she said.
In 2000, the supreme court of Spain had accepted the family’s appeal and granted a retrial. Through October and November 2003,Holgado’s tapes were played to a full house in the same courtroom where his son’s alleged killers had been tried and acquitted nearly five years earlier. The same four suspects sat on the same bench, but now the public gallery was packed not just with the local papers but with journalists from El País and El Mundo and TV cameras from all the leading channels. Francisco Holgado stood at the back of the courtroom, his chest puffed out. “I was positive that this time around, things would go right for us,” he told me.
What followed on the tapes, however, were hours of drunken slurs in bars and unintelligible mumbles in the back of cars. For all Holgado had done to befriend and solicit information from Asencio, the younger man never confessed to the crime. The prosecution struggled to put together a credible narrative from the jumbled recordings, and on 3 December, the four suspects were again acquitted of murder.
Stuck in limbo, with little hope of bringing their son’s killers to justice, the family rapidly disintegrated. Holgado and Antonia divorced in 2004, but continued to lash out at one another, their disputes unfolding in the public eye. Antonia told the papers that her husband had never loved Juan and that he was a bad father. All three children sided with their mother and gradually broke off contact with Holgado, who claimed that they had been turned against him by their mother.
After their separation, Antonia and Holgado began to campaign individually. When, in 2006, the supreme court rejected a second appeal for a retrial of the same defendants, Antonia started a series of hunger strikes outside the petrol station where the murder had taken place, while Francisco again painted slogans on government buildings and police stations. Both parents continued to visit the police station each week for updates on the case, and both spent time offering support to other families who had lost children to violence.
With no new evidence or impending trial, the public and the press lost interest in the Holgados. The abandonment made Holgado feel hollow and alone – in the absence of his family he had always had the love of the public. Now they too seemed distant. “I realised that people had to get on with their own lives,” he told me. According to Paco, the canonisation of his father made Holgado accustomed, perhaps even “addicted”, to his saintly image. When the press lost interest, Holgado felt he had to strive even harder to catch its attention, to be deserving of the name Father Courage.
On 23 December 2008 Holgado stepped on to the tracks at the Jerez central station. In front of a stationary Barcelona-bound train, he laid out a large white poster that read, “Juan Holgado, 22-11-95, 13 years without Juan, 13 years without justice. Police and Judges: useless. Why?” He then sat on the track for 40 minutes, accompanied by a handful of local sympathisers, until he was dragged off the tracks by the police.
Less than a month later, on 11 January 2009, 30 minutes into the first half of a La Liga football match between Xerez and Tenerife, Holgado skipped over the barriers of the spectators’ area at the Chapín stadium in Jerez and ran on to the pitch. He carried a white carnation and the same white poster. In front of 7,000 fans and national TV cameras, two senior players, one from each side, escorted him off the pitch to rounds of applause. “What this father has suffered is unimaginable, and we must support him in any way we can,” Antonio Calle, captain of Xerez, told Canal TV after the match. (He would repeat the same stunt at another match the following year.)
In May 2009, the police closed Juan’s case, citing a lack of new evidence. The local papers wrote about the event as if it were the end of the story, but for Antonia and Francisco the story would not be over until the killers were behind bars. “You just knew they were never going to throw in the towel,” Antonia Asencio Garcia, a senior politician for Socialist Party of Andalucia and acquaintance of the Holgados, would later tell the Spanish press.
In October 2015, Holgado arrived in Madrid on foot, limping slightly and wearing a white T-shirt emblazoned with a portrait of his son. The 71-year-old had walked 600km from Jerez, along busy motorways and dusty country roads, to seek an audience with the acting minister of justice, Rafael Catalá.
The preceding six years had been tough. No new evidence had emerged. Holgado had been suffering from heart problems, and had attempted to sue Antonia for harassment, after taking a restraining order out on her in 2009. He had never given up campaigning for his son, but making any impact had become difficult. As the date of his son’s case neared its statute of limitations, which for murder is 20 years, Holgado knew he had to do something dramatic.
Holgado could have flown to Madrid to see the minister, but he wanted his efforts to capture attention, and to be more media-worthy, and so in early 2015 he came up with the idea of a justice march. But rather than just a march for Juan, Holgado envisioned a protest for all those families caught in limbo, who still didn’t know the identity of the criminals who had killed their loved ones.
Holgado’s lawyer, Jose Miguel Ayllon, who had replaced Cosano at the second trial, helped put Holgado in contact with other parents in a similar situation; people he could meet en route to Madrid. Two more volunteers, who worked for the “New Day” charity in Carmona, near Seville, set up a Facebook page for Holgado’s project, and coordinated with their contacts in town halls throughout Spain, so that he would be met by someone in each place he stopped.
On 28 September, at the roundabout by the petrol station where Juan had died, Holgado began his walk north – through Seville, Córdoba and Toledo, on his way to the capital. On the road, he was followed intermittently by wellwishers, local politicians from the towns he passed through, and photographers from La Voz del Sur, El País and Interviú magazine. On Facebook some 30,000 people followed his progress, receiving daily updates on his page, Support Father Courage. “The whole event was typical of Francisco, exaggerated and over the top,” Antonia told me. “It was too much about him.”
In mid-October, Holgado sat down in a room in the ministry of justice in Madrid with his lawyer and the minister, Rafael Catalá. Catalá was sympathetic to the old man’s pleas and told him that although he could not keep the case open indefinitely, he would promise to have it looked over. Five days before its legal expiry, the investigation was passed from the national police to the Guardia Civil, Spain’s oldest law enforcement agency, which, although organised as a military force, performs police duties.
Within days, there was an apparent breakthrough: a fingerprint on the blood-stained juice carton found on the scene, which had previously been discarded as evidence because it didn’t match the criteria for testing at the time, was matched to Agustín Morales, a well-known drug addict and serial offender, who, at the time of the murder, had lived near the petrol station. But it emerged that Morales had died in prison in 2006.
The court’s last roll of the dice came in June 2016, when it ordered that the 22 remaining fingerprints and DNA samples from Juan’s clothes be analysed again. The prints, although included in the original investigation, had not all been checked against an international criminal database of the 190 member countries of Interpol. In this same order, the judge also requested that Juan Holgado’s clothes be examined for traces of blood and DNA, and that a separate trace of DNA found on a shard of glass at the crime scene also be re-examined.
The Holgados knew this was their last chance to make any headway in their son’s case, but any optimism they may have felt was seasoned by 20 years of suffering and disappointment.
Towards the end of 2016, the Holgados learned that none of the court’s new inquiries had created a breakthrough. Of the 22 fingerprints, 11 were too indistinct to be analysed, and the rest did not correspond to anyone on the Interpol database. Moreover, the court found that Juan’s clothes had been destroyed 10 years earlier by judicial order, and the DNA revealed no positive match. The local press once again announced that the crime at the petrol station was closed.
One evening earlier this year,Holgado stood over his son’s headstone, his face scrunched into a frown. The springtime light shone through the clouds, illuminating the polished marble grave. His health was failing, but he said he would walk from Jerez to the European court of human rights in Strasbourg if he had to. “There has to be another way,” he said, “and I’ll find it.”
These days, he is no longer sure if Asencio, who has been in and out of prison over the past decade, or the other three original suspects, were even at the petrol station that night in 1995. For Holgado, this was not about justifying his past actions or proving that he had been right all along. “It’s about justice for my son, and I won’t stop until I have it,” he said.
Bozie Hernandez, a friend of Holgado, said: “I have told him that after all he has done he deserves to rest.” But giving up the pursuit that has lent shape and meaning to his life for so long may not be possible. Holgado has told his tale so many times, and read it back to himself in so many papers, that it has become not just part of him, but perhaps all that is left of him. “I remember my old, normal life as if it were someone else’s,” he told me. The old Francisco, he believed, had died with Juan. “He has lived with Juan’s story for so long, I’m not sure he’d know what to do without it,” Cosano, his former lawyer, told me.
As the evening light faded, Holgado cleaned Juan’s tombstone and straightened the insignia of FC Barcelona, Juan’s favourite team, that hangs from the corner of the headstone. He could only stay for a while; he knew Antonia, who also visits almost every day, would be coming soon. Hope for justice is the only thing the couple now shares.
Holgado kissed his son’s grave and crossed himself before turning and walking to the cemetery gates. There, he said goodbye to the guard, collected his bike, and cycled the 6km from the cemetery to his home.
At his house, on a quiet street with few cars and a chapel at one end, he prepared a small meal in his cramped kitchen. He went to bed at 11 pm. Alone, on his lumpy mattress, he thought of death – not his own, but his son’s. Like he does most nights, he imagined his boy’s pain, his last thoughts and last sights, and he wondered if the story that he has lived for 21 years will ever end.
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The EU has given Poland an ultimatum: a one-month deadline to drop plans for judicial reforms, which Brussels says would be a violation of the rule of law, on pain of losing Poland’s vote in the European Council. The EU has never before used this “nuclear option” on a member state and it seems like the kind of legal threat that should surely bring Poland’s ruling conservatives to its senses after weeks of street protests over the measures.
Yet, those who have faith in the value of external pressure on the ruling party chairman, Jarosław Kaczyński, forget what brought him to power.
The day the measure subordinating the Polish courts to political interference was approved by the parliament in Warsaw, Donald Tusk, the president of the European council, who happens to be Poland’s former prime minister – and Kaczyński’s arch-enemy – issued a half-page statement. In it he managed to make six references to Poland’s reputation abroad. The reform, he said, would “ruin the already tarnished public opinion of Polish democracy.” Tusk failed to explain why retaining an independent judiciary might be a good thing, even when nobody’s watching.
Like many postcolonial societies, Poland has a residual sensitivity about what “the west might think about us” – this is especially prevalent within the middle-class electorate that Tusk was presumably speaking to. Yet over the last decade, this embarrassment anxiety has provoked a backlash from the Law and Justice party (PiS), which dubs it a “teaching of shame”. The party came to power in 2015 on the back of pride-boosting slogans such as “Poland will get off its knees” that massively helped expand its traditional electorate, the elderly and rural or small-town dwellers, to include a new group you could call the dignity-driven youth.
And now, PiS is likely to use the Brussels pressure to play the sovereignty card even more than it has previously done, the goal being to show Poles who holds legitimate power. Poland’s justice minister, Zbigniew Ziobro, framed his response to the EU decision in the language of pride: “I ask Mr [Frans] Timmermans to cut his insolence and arrogance, when he speaks about Poland and Poles. Poles categorically demand respect.”
Liberals and progressives are making a big mistake in thinking they can shame Law and Justice supporters with warnings about Poland’s diminishing status in the west. In fact, they are blowing the wind in PiS’s sails.
Yet, they are egging on pro-European Polish progressives with these warnings and that is likely to polarise Polish society even further.
That is because most people don’t vote but they may be motivated to by a new conflict between supporters of closer EU integration and Eurosceptics.
Our society consists roughly of three groups: approximately a fifth of regular voters, a fifth of regular non-voters, and three -fifths who vote from time to time. When the latter group finally shows up to the ballots, its members are most likely to vote for the centre. Yet, these three-fifths gets easily offended – and some electoral campaigns are calibrated to disgust them so that they stay at home complaining about low standards of politics. By contrast, the “iron electorate” remains unimpressed.
The threatened EU sanctions are likely to lead to a polarisation of Polish society along the lines seen in the Brexit and Trump campaigns.
On the one hand, Poland is one of the most pro-European countries in the EU. For the past decade, support for the EU has ranged between 70% and 90%, with recent polls showing 88% support. These are not just empty declarations. The single biggest anti-government protest carried the slogan, “We are and will be in Europe”. It gathered 30,000 people (according to the government) or 240,000 (according to the organisers).
Yet, Poles’ affection for the EU is not unconditional. In this, one of the world’s most homogenous societies, 51% say they would rather quit the EU than accept any plan for refugees allocated by the EU. The EU’s threats are likely to lead to a further polarisation of Polish society. Fear is the fuel, it has greater mobilising power than hope or the protection of the status quo. Both sides deploy it: the strongest fear that PiS can mobilise is Muslim refugees, while the strongest fear the opposition can generate is that of having to quit Europe. In other words, the anxiety of cosmopolitans about being cut off from the liberal world versus conservatives’ fear of accepting “the other”. Brace yourself for the next battle over our globalised world.
The EU is expected to give Poland’s rightwing government until September to reverse a controversial set of laws that give the country’s politicians control over its supreme court.
The Polish senate defied international condemnation early on Saturday and mass demonstrations in Warsaw to approve a law that allows the firing of its current supreme court judges, except those chosen by the justice minister and approved by the president.
Protests continued in Poland. on Saturday. But despite increasing dismay at developments, the European commission knows it needs time to build support before moving towards what is regarded as the nuclear option – of suspending a country’s voting rights in the EU for the first time. Last week the first vice-president of the EU’s executive, Frans Timmermans, warned that Brussels was “very close” to triggering the sanction, which would spark a major confrontation with one of the EU’s most populous member states.
The legislation passed on Saturday is only one of a series of contentious legal reforms being pursued by the ruling Law and Justice party (PiS) which have prompted thousands to take to the streets in protest against what many claim is the death of Polish democracy.
The new law gives the president the power to issue regulations for the supreme court’s work. It also introduces a disciplinary chamber that, on a motion from the justice minister, would handle suspected breaches of regulations or ethics. The law now requires only the signature of the president, Andrzej Duda, who was previously a member of PiS, to become binding.
With Brexit negotiations in full flow, there is unease in Brussels at taking any action that could be seen as heavy-handed in relation to a member state.
With the EU engaged in a difficult balancing act, it is understood Timmermans will suggest at a meeting of commissioners on Wednesday that Poland be given until the next general affairs council of EU ministers, on 25 September, to respond to claims that its measures are a systemic threat to the rule of law. While Poland has ignored the commission when it has previously set deadlines on this issue, the move would at least give the commission the summer months to garner the support required to impose tough sanctions.
The EU believes, however, that it will be in a position to launch two infringement proceedings against Poland as soon as this week, in an attempt to slow the country’s drift towards what Brussels regards as authoritarianism.
The first, it is understood, will highlight that the government’s insistence on the early retirement of judges is discriminatory towards women, as the age thresholds are different for the sexes under the new laws.
The second infringement proceeding focuses on the failure of Poland to give its people effective access to justice, by undermining the independence of the courts. Both legal arguments have been deployed by the European commission before in the case of Hungary, and forced the country to rethink.
Jarosław Kaczyński, head of Poland’s ruling party, claims the judiciary in Poland still works to a communist-era model and that the system needs “radical changes” to become efficient and reliable. The Polish prime minister, Beata Szydło, says the legislation is an internal matter and the government will not bow to any foreign pressure.
About 200 protesters have gathered in front of Duda’s holiday home in Jurata, on the Baltic coast, to demand that he does not sign the bill.
The president has 21 days to sign it and is not expected to do so before his meeting on Monday with the head of the court, Małgorzata Gersdorf. Two other bills, on a key judicial body and on regular courts, also await Duda’s signature.
On Friday the US state department urged all sides to “ensure that any judicial reform does not violate Poland’s constitution or international legal obligations and respects the principles of judicial independence and separation of powers,” and urged dialogue.
So far Duda has not accepted an invitation for talks on the issue from the European council president, Donald Tusk, a former Polish prime minister. Speaking to Polish broadcasters, Tusk repeated his readiness for talks and said he was a “little disappointed” there had been no meeting. “Poland’s president should be concerned about a situation that is, let’s say, serious,” he said.
The Hungarian prime minister, Viktor Orbán, said on Saturday that Budapest would fight to defend Poland. “The inquisition offensive against Poland can never succeed, because Hungary will use all legal options in the European Union to show solidarity with the Poles,” he said.
The decision by Poland’s upper house of parliament to give the government de facto control of the country’s highest court is a serious mistake with negative implications for Europe. The legislation compromises judicial independence and undermines confidence in the rule of law free from political interference. It deals a heavy blow to Poland’s far from robust post-communist democratic institutions. It is a staggering act of defiance of the EU, which explicitly opposed the measure. And it explodes the too-comfortable illusion, fashionable since Emmanuel Macron won France’s presidential election, that the dark forces of intolerant European nationalism and populism are in retreat.
The new law is one of several so-called reforms, proposed by the ruling rightwing Law and Justice party (PiS), giving ministers power over the appointment of judges and members of Poland’s supreme court. All 83 of the court’s current judges will be sacked unless retained by order of the justice minister. The government claims this will speed up judgments and break the grip on the legal system of a “privileged caste” of lawyers and judges. Large street protests preceded a debate in the lower house of parliament last Thursday. But the bill was approved by 235 to 192 votes. Now that the senate has also backed it, President Andrzej Duda, a PiS ally, is expected to sign it into law, although he still has time for second thoughts.
The PiS gained power in 2015 after unseating the Civic Platform government and has been a problem for Poland and Europe ever since. Despite winning only 37.6% of the vote, it proceeded to foist its narrow nationalistic, ideological and cultural outlook on the rest of the country as if it had obtained an overwhelming mandate.
Timothy Garton Ash, a seasoned observer of Polish affairs, described the PiS agenda as “systematic anti-liberalism with a seasoning of resentment and paranoia”. There was no question that an elected government had the right to implement its policies. “What it has no right to do is to dismantle or neutralise the institutions that allow an informed public to make [a] free choice, and that place essential checks and balances on the executive,” Garton Ash wrote.
Yet this is exactly what is happening now. A series of divisive and damaging controversies has ensued since the election. After nationwide women’s protests and an awkward debate in the European parliament last year, Jarosław Kaczyński, the PiS leader, backed away from legislation making virtually all abortions illegal – while saying he still agreed with it. There have been rows about threats to media freedom, what journalists call a “purge culture”, and the pro-government bias of state broadcasters. Poland is facing legal action by Brussels over its refusal to honour an EU agreement on relocating Syrian refugees. Now comes the bid to emasculate the judiciary.
Poland is often described as a proudly independent, conservative, predominantly Catholic country, where change comes slowly. But adherence to traditional values and healthy national self-respect can too easily be subverted and exploited by unscrupulous leaders.
Kaczyński’s anti-democratic instincts put him at odds both with the many Poles who want to build a forward-looking, integrated and tolerant country and with the European mainstream. Yet demonstrations are not enough. His authoritarianism poses an existential challenge to the autonomy of democratic institutions, such as parliament, the courts and civil service, that have yet to develop fully since the era of Soviet dominance ended in 1989. His regressive policies also challenge the EU itself in ways that cannot be ignored.
Poland’s opposition needs to get its act together. But so, too, does Europe. Last week’s message from Brussels was clear: scrap these “reforms” or face unprecedented ostracism. Frans Timmermans, the first vice-president of the European commission, acted tough, although appearances can be deceptive. The EU was “very close”, he said, to triggering article 7, a never-before-used sanction that allows a member state’s voting rights in the council of ministers to be suspended. The response from the PiS was defiant: Brussels can go whistle, as Britain’s foreign secretary might say. Poland’s government would not yield.
What should the EU do? Poland’s reputation as the bad boy of Europe, exceeding even that of Viktor Orbán’s Hungary, which is backing the PiS against Brussels, is well established. If the Polish government continues on its present course, the most obvious available option would be to cut financial support. Poland is by far the biggest beneficiary of EU cohesion funds. It is due to receive about €82.5bn (£74bn) in the 2014-20 budgetary period. It has profited enormously from EU membership since joining in 2004.
The idea that, if provoked, Poland might follow Britain out of the door is absurd. If Polish politicians continue to defy European norms, renege on binding commitments such as refugee quotas and ignore the views of fellow members, the consequences should be plain – and painful. Germany has floated proposals to freeze funds for countries that fail to meet EU rule-of-law standards. For the sake of its credibility and future cohesion, Europe must enforce a tough line with Kaczyński and the PiS.
Poland’s leaders should also be clear that, in a world where attacks on judicial independence are only too common, they must not look beyond Europe for support or justification. Such problems are not unexpected in China, Belarus or Iran. In the US, too, Donald Trump has behaved disgracefully in serially assaulting US judges. But despite his recent, cringe-making visit to Warsaw, when he echoed many of the chauvinistic ideas espoused by the PiS, Trump’s example is not to be emulated.
Europe stands for democracy. Where does Poland stand?
Poland’s president appears to have bowed to the pressure of nationwide protests by announcing he will veto controversial judicial reforms that would wipe out the supreme court’s independence and allow the justice ministry to appoint judges.
Andrzej Duda’s surprise announcement was interpreted as a rare reprimand of the ruling Law and Justice party, (PiS) with whom he normally has a close relationship.
Commentators were shocked at the move, interpreting it as a major setback for PiS, which has made a big issue out of controlling Poland’s independent institutions, particularly the judiciary, since it came into power in 2015, and hailing it as a victory for demonstrators.
Duda, in a televised address, said: “These laws must be amended.” He said his rejection of the proposed bills would be criticised “probably by both sides of the political scene”, but that they “would not strengthen the sense of justice in society”.
The proposed measures he said he would veto included one to remove all judges of the supreme court, except those chosen by the justice minister, and another under which parliament would have been given the authority to appoint members of the National Council of the Judiciary.
Explaining that his decision had resulted from lengthy consultations he had held with legal and other experts over the weekend, he said: “I have decided to send back to parliament – in which case to veto – the law on the supreme court, as well as the law on the National Council of the Judiciary.”
His declaration followed eight days of demonstrations across the country, in which hundreds of thousands of Poles have taken to the streets in the capital, Warsaw, as well as hundreds of other towns and cities, and held vigils in front of courthouses.
Protesters marched by candlelight again on Sunday night, ahead of the president’s much anticipated decision, and a day after the Polish senate had followed the lower house of parliament and voted for the reforms on Saturday.
Under banners emblazoned with slogans such as “Free courts” and “Freedom, equality, democracy”, demonstrators pleaded with Duda – himself a lawyer – to reject the laws, claiming they marked a shift towards authoritarian rule.
Investors’ interpretation of Duda’s announcement as having stalled a constitutional crisis caused the Polish currency, the zloty, to rise against the euro.
The proposals had also set Poland on a collision course with the European commission, which had threatened to stop Poland’s voting rights if it introduced them. Donald Tusk, the European council president and a former Polish prime minister, had warned of a “black scenario that could ultimately lead to the marginalisation of Poland in Europe”.
There has also been criticism from Washington, with the US state department voicing its concerns. When President Trump visited Warsaw earlier this month he praised Poland’s leaders for their patriotism but did not mention the judicial reforms.
The legal amendments had their first parliamentary hearing on 18 July and were adopted by the lower house, followed by the upper house four days later. The only procedure preventing them from entering the statute books was the presidential signature.
Duda’s declaration marks the first time that he has publicly split with Jarosław Kaczyński, the head of PiS. Since his inauguration, Duda has been seen as something of a Kaczyński puppet from whom he effectively takes orders, leading to much mockery of him. Some commentators are sceptical whether his apparent assertion of his authority is authentic, or merely an attempt to take the edge off the protests. Although he insisted on Monday that political interference in the judiciary should not be up for discussion, some predict Duda will propose new conditions that do little to address the main concerns about the legislation and they fear he will fail to veto a third bill affecting the independence of regional and local courts.
Katarzyna Lubnauer, head of the parliamentary caucus of the opposition party Nowoczesna, welcomed the veto. “What we had wasn’t a reform, but appropriation of the courts,” she said. “I congratulate all Poles, this is really a great success.”
Human rights organisations welcomed the president’s veto but urged vigilance. “With this decision President Duda has pulled Poland back from the brink of all-out assault on the rule of law,” said Gauri Van Gulik, the deputy Europe director at Amnesty International. “These reforms would have brought the justice system fully under the heel of the government, removing judicial independence and jeopardising fair trial rights in Poland,” he added.
Van Gulik said the demonstrations had helped to bring about the veto, which was a “tribute to the power of public protest”, adding: “It is partly thanks to people power that this alarming scenario has been averted.”
But opponents of the law urged Duda to go ahead and also veto the third bill, which would give the government the power to appoint the heads of common courts.
Hundreds of participants of the protest rallies face trial in the courts, having refused to pay fines for barricading the streets or penetrating police barriers.
Kaczyński’s government has staunchly defended the law changes, calling them vital in the fight against corruption and necessary to help make the judicial system more efficient. It has accused opponents of the moves of being representatives of the elite trying to protect their privileged status.
Among the experts Duda said he had consulted were lawyers, sociologists, historians, philosophers and anti-communist dissidents.
The person who had guided him most, he said, was Zofia Romaszewska, a prominent campaigner of the 1970s and 80s, who he said had told him: “Mr President, I lived in a state where the prosecutor general had an unbelievably powerful position and could practically do anything. I would not like to go back to such a state.”
Among those to praise Duda was Lech Wałęsa, the former president and erstwhile shipworker and leader of the Polish labour union Solidarność, which helped bring down communism across Europe. Wałęsa called his decision “difficult and courageous”, saying it showed that Duda “begins to feel like a president”. But he urged Poles to continue their protests to force Duda to also reject the third bill.
Poland’s upper house of parliament has approved a supreme court overhaul, defying the EU and critics at home who say the legislation will undermine democratic checks and balances.
Tens of thousands of protesters gathered in Warsaw and cities across Poland for candlelit vigils to protest against the draft bill, as the senate debated it late into the night. Some protesters carried Polish and European Union flags, chanting: “Free courts.”
To become law, the proposal still has to be signed by the president, Andrzej Duda, an ally of the ruling conservative Law and Justice (PiS) party.
Duda’s spokesman, Andrzej Łapiński, said on Saturday he saw flaws in the legislation and an inconsistency between two articles regarding the appointment of the head for Poland’s top court.
Łapiński stopped short of saying whether the president would reject the bill or seek the opinion of the constitutional court. Duda has 21 days to sign it into law.
The Eurosceptic PiS argues new rules are needed to make the judiciary accountable and efficient.
But the opposition and judges’ groups in Poland as well as critics in Brussels say the legislation is a new step by the Polish government towards authoritarianism.
The US, Poland’s most important ally in Nato, issued a statement urging Poland to ensure any changes respect the constitution. “We urge all sides to ensure that any judicial reform does not violate Poland’s constitution or international legal obligations and respects the principles of judicial independence and separation of powers,” it said.
An opinion poll for the private television network TVN showed on Friday that 55% of respondents said Duda should veto the overhaul of the judiciary, while 29% wanted him to sign it.
Since coming into power in 2015, the PiS has sought to tighten government influence over courts, and brought prosecutors and state media under direct government control. It has also introduced restrictions on public gatherings and made it harder for some non-governmental organisations to function.
“We believe that Poland is slowly but systematically turning into a penal institution,” the opposition senator Jan Rulewski, a veteran activist of the anti-communism movement, said during the debate, dressed in a prison uniform.
The PiS remains broadly popular among the electorate, despite an upswelling of protest in recent days as it rushed the judiciary overhaul through parliament. With the economy growing robustly and unemployment at record lows, the party’s nationalist rhetoric infused with Catholic piety resonates strongly among Poland’s conservative voters.
The government of the biggest eastern EU state has so far dismissed criticism, saying the changes would ensure state institutions serve all Poles, not just the “elites”.
On Wednesday, the EU gave Poland a week to shelve the judicial reforms that Brussels says will put courts under direct government control.
If the PiS government does not back down, Poland could face fines and even a suspension of its voting rights, although other Eurosceptic EU governments, notably Hungary, are likely to veto strict punishments.
The Hungarian prime minister, Viktor Orbán, said on Saturday that Budapest would fight to defend Poland. “The inquisition offensive against Poland can never succeed because Hungary will use all legal options in the European Union to show solidarity with the Poles,” he said.
Like the PiS leader, Jarosław Aleksander Kaczyński, a former Polish prime minister, Orbán has clashed with Brussels for years over a perceived disrespect for democratic freedoms and has increasingly posed as a freedom fighter against EU overreach.
Senior Czech judges denounced the judicial overhaul in Poland as an attack on the rule of law.
The PiS has offered some concessions on demand from the president, but has presented criticism from abroad as unacceptable meddling in the domestic affairs of the country, which overthrew communism in 1989 and joined the EU in 2004.
“We will not give into pressure. We will not be intimidated by Polish and foreign defenders of the interests of the elite,” the Polish prime minister, Beata Szydło, said on state television.
Poland is “on the road to autocracy”, the outgoing president of its highest constitutional court warned late last year. Since then it has travelled an alarming distance: thousands of Poles protested at the weekend against changes that undermine the rule of law by handing politicians control of who is in the judiciary and what they do. The response of the ruling Law and Justice party (PiS) has been to step on the accelerator – its proposals to terminate the appointments of all supreme court judges, unless the executive allows them to stay on, could be passed within days or even hours. The court is not only the final tribunal of appeal for all criminal and civil cases: it rules on the validity of elections, approves the financial reports of political parties and adjudicates on disciplinary proceedings against judges. This comes on top of laws passed last week giving parliament control over the previously autonomous body appointing judges, and ministers the power to appoint the president of each court, who decides which judge will sit in each case. The government had already manoeuvred its way to control of the constitutional court.
These developments are probably the most frightening manifestation yet of the rightwing, nationalist, populist illiberalism that has taken root in Poland and Hungary (predictably, PiS has portrayed the judiciary as corrupt and in service to the elite). The international community has struggled to respond – and some have encouraged and abetted such tendencies. Donald Trump’s visit to Warsaw, and his speech playing to the xenophobic tendencies of his host, sent all the wrong signals; many believe it encouraged the government to push on quickly with the judicial changes.
Similarly, Benjamin Netanyahu embraced Hungary’s Viktor Orbán on Tuesday despite the concerns of Hungarian Jews over his praise for wartime leader Miklós Horthy, who collaborated in sending Jews to death camps, and his concerted campaign against George Soros (whom Mr Netanyahu also dislikes). While Mr Orbán reiterated his opposition to antisemitism, Mr Soros and others say there is an unmistakable tone to the billboards attacking the Jewish financier for challenging the government’s anti-refugee stance – part of a dedicated campaign against him. The Israeli government overruled a statement from its ambassador condemning the posters.
Hungary and Poland (and the Czech Republic) could face financial penalties for barring the door to refugees, thanks to legal action by the EU, but feel vindicated by the way the political tide has swung against Angela Merkel’s more generous stance. The row over refugees reflects a more fundamental clash of values: hence Budapest’s attacks on NGOs and attempts to close Mr Soros’s Central European University. In that sense, it is true to say that this personalised assault is not personal: it is about what Mr Soros represents. Hungary has not advanced anywhere near as far as Poland in undercutting the judiciary, but it is on a similar track; and attacks on the media, academia and foreign criticism are highly reminiscent.
When other EU states raised concerns about Poland’s “unconstitutional” reforms, the UK declared that countries had a right to pursue “their own democratic agenda”. Britain has its own agenda: driving a wedge between the Visegrad 4 and the rest of the EU to aid Brexit negotiations. It has cannily dispatched photogenic young royals to Poland, flattering the country without risking political embarrassment. Prince George was never likely to be quizzed about the new legislation. Meanwhile the rest of the EU, concerned by its increasing fragility, feels less able than ever to challenge outliers, though a number of countries – notably the Netherlands – have been energetic and some hope Emmanuel Macron may be persuaded to take up the charge. Belgium has raised the possibility of limiting Poland’s access to the EU budget. While Warsaw and Budapest attack the EU and its values, they are happy to take its cash.
The European commission has launched a legal case against Poland, Hungary and the Czech Republic for refusing to take in refugees, intensifying a bitter feud within the bloc about how to deal with migration.
The Eurosceptic governments in Poland and Hungary have refused to take in anyone under a plan agreed by a majority of EU leaders in 2015 to relocate migrants from frontline states Italy and Greece to help ease their burden. The Czech Republic initially accepted 12 people but has since said it would not welcome more.
Speaking at a news conference on Tuesday, the EU’s migration chief, Dimitris Avramopoulos, said: “I regret to see that despite our repeated calls to pledge to relocate, the Czech Republic, Hungary, and Poland have not yet taken the necessary action.
“For this reason, the commission has decided to launch infringement procedures against these three member states … I sincerely hope that these member states can still reconsider their position and contribute fairly.”
The legal action is likely to reinvigorate the debate over the independence of EU states from Brussels. It kickstarts months, or even years, of legal wrangling before a top EU court could potentially impose financial penalties.
Out of 160,000 refugees due to be taken under the scheme agreed in 2015, only 20,869 have been relocated. In theory, countries can be fined for every refugee in the quota they fail to accept.
The Czech prime minister, Bohuslav Sobotka, nosediving in the polls and facing elections in November, claimed the commission was “blindly insisting on pushing ahead with dysfunctional quotas which decreased citizens’ trust in EU abilities and pushed back working and conceptual solutions to the migration crisis”.
He added: “Given the deteriorating security situation in Europe and the non-functioning of the quota system, the Czech government will not participate in it. We are ready to defend our position in the EU and the relevant judicial institutions.”
But speaking in Prague, the former Italian prime minister Massimo D’Alema said the EU “cannot tolerate countries that do not respect the law that is based on our fundamental values and those values are to respect human rights”.
He added: “The only way to solve the crisis is to share the burden. It is not acceptable for Germany to take 1 million refugees and for some EU states to simply say no. In that case, sanctions are needed.”
The eastern states are firmly opposed to accepting any asylum seekers, and believe their populations will not accept large numbers of migrants, especially if imposed by the EU.
Speaking in Hungary’s parliament earlier on Monday, the prime minister, Viktor Orbán, said: “We will not give in to blackmail from Brussels and we reject the mandatory relocation quota.”
Poland’s interior minister, Mariusz Błaszczak, said: “We believe that the relocation methods attract more waves of immigration to Europe; they are ineffective.”
The Czech Republic had initially taken in 12 people from their assigned quota of 2,691, but said earlier in June it would take no more, citing security concerns. Sobotka argued on Monday that the biggest crisis facing the EU was terrorism.
Poland and Hungary have refused to take in a single person under a plan agreed in 2015 to relocate 160,000 asylum seekers from Italy and Greece, which had been overwhelmed by an influx of people from the Middle East and Africa.
Although the number of refugees coming into Europe from Syria along the Balkan route has fallen, the number of migrants crossing the Mediterranean from Libya has risen significantly, placing great pressure on local Italian authorities.
Critics of the eastern European countries’ stance over refugees claim they are willing to accept the economic benefits of the EU, including access to the single market, but have shown a disregard for the humanitarian and political responsibilities.
Hungary, the Czech Republic, Slovakia and Romania opposed agreeing to the relocation scheme for asylum seekers in 2015, but were outvoted. Although generally opposed, Poland eventually voted with the majority.