1 MEMORANDUM BY: Christine Wadsworth, J.D. Student, International Human Rights Clinic, University of Toronto Faculty of Law DATE: 10 February 2012 RE: Spain’s Universal Jurisdiction Law Note: This is an excerpt from a longer memorandum which applied these legal principles to a particular case. Due to confidentiality and the ongoing nature of the case, all references to the particular case have been removed. This memorandum was prepared by a law student who does not read or speak Spanish and could not access an official English translation of the amended Spanish law. It is not legal advice and is not exhaustive. The information provided herein is not a substitute for legal advice. Section Topic Page 1. Introduction 2 2. Spanish Judicial Structure 3 3. Procedure to Initiate a Criminal Prosecution 4 4. Universal Jurisdiction Law Prior to the 2009 Amendment 5 – 8 5. 5.1 5.2 5.3 5.4 5.5 2009 Amendment to the Universal Jurisdiction Law - Crimes covered by the Amendment - Nexus Requirements - Subsidarity - Statute of Limitations - Immunity 9 - 19 19 - 21 21 - 23 23 23 - 25 6. Civil Complaint 25 7. 7.1 7.2 Political Considerations - The Spanish Judiciary - International Pressure 26 27 8. Conclusion 27
27
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1
MEMORANDUM
BY: Christine Wadsworth, J.D. Student, International Human Rights Clinic,
University of Toronto Faculty of Law
DATE: 10 February 2012
RE: Spain’s Universal Jurisdiction Law
Note: This is an excerpt from a longer memorandum which applied these legal principles
to a particular case. Due to confidentiality and the ongoing nature of the case, all references
to the particular case have been removed.
This memorandum was prepared by a law student who does not read or speak Spanish and could
not access an official English translation of the amended Spanish law. It is not legal advice and is
not exhaustive. The information provided herein is not a substitute for legal advice.
Section Topic
Page
1. Introduction
2
2. Spanish Judicial Structure
3
3. Procedure to Initiate a Criminal Prosecution
4
4. Universal Jurisdiction Law Prior to the 2009 Amendment
5 – 8
5.
5.1
5.2
5.3
5.4
5.5
2009 Amendment to the Universal Jurisdiction Law
- Crimes covered by the Amendment
- Nexus Requirements
- Subsidarity
- Statute of Limitations
- Immunity
9 - 19 19 - 21 21 - 23 23
23 - 25
6. Civil Complaint
25
7.
7.1
7.2
Political Considerations
- The Spanish Judiciary
- International Pressure
26
27
8. Conclusion
27
2
1. Introduction
This is an excerpt from a longer memorandum which applied these legal principles to a
particular case. Due to confidentiality and the ongoing nature of the case, all references to
the particular case have been removed.
Prior to November 2009, Spain had a very broad universal jurisdiction law. Article 23.4 of the
Fundamental Law of the Judiciary (Ley Organica del Poder Judicial) [“LOPJ”]1 provided wide
scope for the exercise of universal jurisdiction. In November 2009, the LOPJ was amended to
include a number of new conditions. The most significant change to the law was the imposition
of nexus requirements to ensure that prosecutions brought under the LOPJ have a connection to
Spain. There have been few applications of the amended law to date, which may provide room
for novel arguments regarding the exercise of universal jurisdiction.
The LOPJ specifies the types of crimes that may be prosecuted under universal jurisdiction. This
memorandum focuses on the possibility of using the LOPJ to launch criminal prosecutions for
crimes against humanity, torture, and war crimes. The ability to initiate a criminal investigation
will largely depend on the Spanish court‟s interpretation of the new nexus requirements,
particularly the requirement that the case have a “relevant” connection to Spain. There is
currently no conclusive jurisprudence on how this requirement should be interpreted.
Subsidarity, statute of limitations, and immunity are additional issues that will influence whether
future criminal prosecutions can be brought in Spain for these international crimes.
1 The name of the Spanish law is also translated as the “Judicial Power Organization Act” and the “Organic Law of
the Judiciary”.
3
2. Spanish Judicial Structure
The National High Court (Audiencia Nacional) is the competent Spanish court for national and
transnational crimes.2 The Criminal Chamber of the National High Court has jurisdiction to
prosecute serious crimes committed outside Spain when Spanish law and/or international treaties
give Spanish courts jurisdiction over those crimes.3 National High Court judgments are subject to
appeal before the Spanish Supreme Court and the Spanish Constitutional Court.4
Spanish judges have the power to investigate criminal offences.5 The investigating judge gathers
evidence and evaluates whether the case should be brought to trial.6 The National Prosecution
Office decides whether to prosecute on the basis of the evidence collected by the investigating
judge in this preliminary investigation, and reports to the Attorney General, who is appointed by
the national government.7 The investigating judge does not try the case himself; the case is
transferred to a tribunal, normally a panel of three judges, who preside over the trial. 8
2 Ley Organica del Poder Judicial art 65(1) (Act No. 6/1985) (Spain) [LOPJ]: (Article 65 (1) of the Ley Organica
del Poder Judicial (LOPJ) states that the Audiencia Nacional (National High Court) is competent, inter alia, for
extraterritorial offences); Spanish Submissions to the United Nations Sixth Committee (Legal), UN General
Assembly at 3 (released on 7 November 2011); Kai Ambos, “Prosecuting Guantanamo in Europe: Can and Shall the
Masterminds of the “Torture Memos” be held Criminally Responsible on the Basis of Universal Jurisdiction?”
(2009) 42 Case Western Journal of International Law at 432. 3 Ley Organica del Poder Judicial art 65(1)(e) (Act No. 6/1985) (Spain) [LOPJ]; “The Spanish National Court: An
Overview of La Audiencia Nacional”, The Center for Justice and Accountability
<http://www.cja.org/article.php?list=type&type=332>; Maximo Langer, “The Diplomacy of Universal Jurisdiction:
The Political Branches and the Transnational Prosecution of International Crimes” (2011) 105 American Journal of
International Law at 33. 4 Spanish Submissions to the United Nations, supra note 2; Richard J. Wilson, “Spanish Supreme Court Affirms
Conviction of Argentine Former Naval Officer for Crimes Against Humanity”, (30 January 2008) 12 ASIL Insights;
(the Constitutional Court is higher than the Supreme Court. 5 Constitucion Espanola art 117 (unofficial English translation of the Spanish Constitution).
6 “Profile: Judge Baltasar Garzon” BBC News (7 April 2010) online: BBC News
< http://news.bbc.co.uk/2/hi/europe/3085482.stm>. 7 Ley De Enjuiciamiento Criminal (Code of Criminal Procedure) arts 105, 271, 306, 31; Langer, supra note 3 at 33
(each new government appoints its own head of the Office of the Prosecutor). 8 BBC Profile: Judge Baltasar Garzon, supra note 6.
“Universal Jurisdiction: A Preliminary Survey of Legislation Around the World” Amnesty International (October
2011) Index: IOR 53/004/2011 at p. 105; Ambos, supra note 2 at 442. 73
Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 10 December
1984, UNTS, art 1 (entered into force 26 June 1987) [Convention against Torture]. 74
Ibid. arts. 5.2, 6.1 and 7.1. 75
Ibid, art. 5.2. 76
Ibid, art. 6.1. 77
Ibid, art. 7.1.
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peremptory character of the prohibition of torture under international law. The ICTY Trial
Chamber stated that:
... [O]ne of the consequences of the jus cogens character bestowed by the
international community upon the prohibition of torture is that every State is
entitled to investigate, prosecute and punish or extradite individuals accused of
torture, who are present in a territory under its jurisdiction. Indeed, it would be
inconsistent on the one hand to prohibit torture to such an extent as to restrict the
normally unfettered treaty making power of sovereign States, and on the other hand
bar States from prosecuting and punishing those torturers who have engaged in this
odious practice abroad. This legal basis for States‟ universal jurisdiction over
torture bears out and strengthens the legal foundation for such jurisdiction found by
other courts in the inherently universal character of the crime. It has been held that
international crimes being universally condemned wherever they occur, every State
has the right to prosecute and punish the authors of such crimes.78
Relevant Cases:
In the Scilingo case, the Spanish Supreme Court overturned Scilingo‟s conviction for torture
because the offence of torture did not appear in Spanish law until it was incorporated into the
Criminal Code under Article 204 bis on 17 July 1978. Scilingo‟s alleged torturous acts took
place before that date.
War Crimes and the Geneva Conventions
In the 2009 amendment of the LOPJ, the Spanish Senate removed war crimes from the list of
applicable crimes under Article 23.4(a).79
Despite the narrowing of the universal jurisdiction law,
it should still be possible to prosecute grave breaches of the Geneva Conventions under Article
23.4(h), which concerns Spain‟s obligations under international treaties and conventions.80
According to Spain‟s submissions to the 64th
Session of the United Nations General Assembly,
78
“Universal Jurisdiction” Amnesty International (October 2010), supra note 34 at 59. 79
Ambos, supra note 2 at 436. 80
Ibid at 436-437.
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war crimes are included in the reference to international humanitarian law treaties under Article
23.4(h).81
The Geneva Conventions of 12 August 1949 provide for universal jurisdiction with regard to war
crimes in international armed conflict which are defined as grave breaches of the Geneva
Conventions.82
The Additional Protocol to the Geneva Conventions (1977) provides for universal
jurisdiction over grave breaches of that Protocol.83
In its opinion of 26 May 2010, the United
Nations International Law Commission held that the obligation to prosecute serious violations
described in the Fourth Geneva Convention under the principles of universal jurisdiction “is not
conditioned by any jurisdictional consideration of the States”.84
The presence of armed conflict remains a requirement for the Geneva Conventions to apply.
According to Common Article 2 of the Geneva Conventions, “grave breaches” of the
Conventions may only be committed in an international armed conflict, where “international
armed conflicts” are defined as conflicts between states.85
Common Article 3 of the Geneva Conventions covers cases of “armed conflict not of an
international character” occurring in the territory of one of the High Contracting Parties.86
The
81
Spanish Submissions to the United Nations, supra note 2 at 12. 82
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field (First Geneva Convention), art. 49; Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), art. 50; Geneva
Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), art. 129;
Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention), art. 146. 83
Additional Protocol I, art. 85.1 (entered into force on 7 December 1978). 84
UN International Law Commission, 26 May 2010, Ashraf Case: Audiencia Nacional, Central Investigation Court
Number 4, Madrid (27 December 2010) at 5. 85
Geneva Conventions, Common Article 2 (“Art. 2. In addition to the provisions which shall be implemented in
peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting
Party, even if the said occupation meets with no armed resistance.”). 86
Geneva Conventions, Common Article 3 (“Article 3: In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as
a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their
arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any
time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
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precise threshold of conflict at which Common Article 3 becomes applicable is not defined.87
There does not appear to be a universally accepted definition of internal armed conflict.
However, international jurisprudence provides some characteristics to distinguish armed conflict
from internal disturbances. The ICTY and the International Criminal Tribunal for Rwanda
(ICTR) have emphasized that since an armed conflict suggests “the existence of hostilities
between armed forces organized to a greater or lesser extent,” it is “necessary to evaluate both
the intensity of the conflict and the organization of the parties.” The ICTY and ICTR have
looked at the following factors to determine whether the intensity of the conflict and the
organization of the parties indicates the presence of armed conflict:
- the seriousness of the attacks;88
- their spread over territory and over a period of time;89
- the increase in the number of government forces;90
- the organized nature of the rebel group (taking into account such factors as the existence
of headquarters, designated zones of operation and the ability to procure, transport and
distribute arms);91
and
- whether the conflict attracted attention from the United Nations Security Council.92
The Tablada case before the Inter-American Commission on Human Rights93
also discussed the
characteristics of armed conflict. The Commission held that the level of violence rather than the
conflict‟s duration is the main distinguishing feature between armed conflicts and internal
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the
Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions
shall not affect the legal status of the Parties to the conflict.”). 87
Fionnuala Ní Aoláin, “Hamdan and Common Article 3: Did the Supreme Court Get It Right?” (2007) Minnesota
Law Review at 1528. 88
Prosecutor v Tadic, IT-4-1-T, trial judgment, 7 May 1997 at para 565. 89
Ibid at para 566. 90
Prosecutor v Milosevic, IT-02-54-T at para 30-31. 91
Ibid at para 23-24. 92
Prosecutor v Mrkscik and Sljivancanin, Case No IT-95-13/I-T at paras 28-31. 93
Abella v Argentina (1997), Inter-Am Comm HR, No. 55/97, Case No 11,137.
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disturbances. Internal armed conflicts do not “require the existence of large scale and generalized
hostilities or a situation comparable to a civil war in which dissident armed groups exercise
control over parts of national territory.”94
Despite the fact that the armed confrontation in the
Tablada case lasted only 30 hours, the Inter-American Commission on Human Rights concluded
that it amounted to an armed conflict due to the “concerted nature of the hostile attacks
undertaken by the attackers, the direct involvement of governmental armed forces and the nature
and level of violence attending the events.”95
Recognition of an “armed conflict” would also affect the application of specific sections of the
Spanish Criminal Code. Articles 608 – 614 bis of the Spanish Criminal Code cover “Offences
against Protected Persons and Property in the event of armed conflict”.96
Each of these articles
requires the presence of armed conflict. However, “armed conflict” is not defined under Spanish
law.97
Relevant Cases:
In two cases, Spanish judges have interpreted the “residual” clause in Article 23.4(h).
In the United States torture case, Judge Garzón held that Article 23.4(h) was applicable since the
alleged crimes constitute crimes against humanity and are covered by international treaties,
including the Third and Fourth Geneva Conventions, the Convention against Torture, and the
ICCPR.98
In the Ashraf case, Judge Andreu Merelles held that the amended LOPJ specifies that it should
not bar proceedings authorized by treaties and conventions ratified by Spain. With reference to
Article 146 of the Fourth Geneva Convention, Judge Andreu held that Spanish courts did have
jurisdiction over the case.99
The National High Court noted that under Article 146 of the Fourth
Geneva Convention, state signatories have an obligation to investigate, prosecute, and sentence