Spain: The bill on universal jurisdiction must be rejected

10/02/2014
Press release
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UNIVERSAL IMPUNITY

On 11 February 2014, the Spanish Parliament will examine a bill, sponsored by the Peoples Party, concerning the extension of Spain’s jurisdiction beyond its frontiers. APDHE and FIDH call for this legislative reform to be rejected because it would substantially restrict the application of the principle of universal justice.

Back in August 2009, under international commercial, economic and political pressure, we experienced a deplorable reform designed to curtail the scope of universal jurisdiction.
“Now almost five years after that first reform and as a consequence of the latest judgements handed down in the Tibet case before the Audiencia Nacional (Spanish National court), the same pressure as that exerted in 2009, intended to give primacy to economic and political interests, has been brought to bear” , stated Maite Parejo, Secretary General of APDHE. “This pressure has led to the submission of the parliamentary bill whereby the said principle of international law would be voided of all content”.

The bill contains provisions restricting the application of univeral jurisdiction in cases of genocide, crimes against humanity and war crimes to cases where the suspect is a Spanish national or a foreigner who habitually resides in Spain or a foreigner who happens to be in Spain and whom the Spanish authorities have refused to extradite. For torture and forced disappearance cases, the proposed bill requires that the suspect be Spanish or that the victim be of Spanish nationality at the time the crimes were committed and that the suspect be present on Spanish territory, for proceedings to be initiated.

Once again a fast track legislative process has been used both to avoid publicity and public debate and to escape technical legal debate, with subsequent interventions on the part of consultative bodies like the Consejo General del Poder Judicial (General Council of the Judiciary) and the Consejo de Estado (Council of State).

“The exercise of universal jurisdiction flows from the international obligations entered into by Spain, through the many treaties and conventions to which it is a State party and whereby it is committed to upholding human rights, to prosecuting and punishing the prepetrators of the most serious international crimes (genocide, war crimes, crimes against humanity, torture, forced disappearances, amongst others)“ , declared Patrick Baudouin, FIDH Honorary President. “The proposed bill thus contradicts the most elementary principles of International law and of international human rights law, already applied to the Nuremberg trials and currently in force in Spain. The Spanish government, with this reform, will default on the international obligations it signed up to that have the aim to prevent these heinous crimes from going unpunished“.

Universal jurisdiction, then, cannot be curtailed in contradiction with its very essence, by these requirements or specific links, such as the nationality of the victims or the required Spanish nationality of the suspect.

This reform also introduces the prerequisite of Spanish nationality and habitual residence in Spain to initiate judicial proceedings against foreign individuals suspected of offences of human trafficking, drug trafficking, offences against the freedom and sexual integrity of underaged persons… The above limits the scope of investigations and means that proceedings can only be initiated against Spanish accomplices, thus allowing the main perpetrators and sponsors to go unpunished.

In addition, under the intended reform, « acusaciones populares » (the ability under Spanish law for civil society in a third party capacity to press charges) would be excluded from the universal justice principle. This restriction arises out of Spanish experience in which « acusaciones populares » start and foster investigations, often countering the public prosecution process, subject as it is to government interests and orders. The attempt to bar « acusaciones populares » reveals the purpose of the reform, namely to bring about the shelving of cases currently being heard and to tacitly declare the impunity of identified and even indicted perpetrators.
We should recall that the bill, with its Sole Transitory Provision, upon entry into force, establishes that all cases pending will be stayed until evidence can be provided that they comply with the new requirements.

Thus, FIDH and APDHE:
- declare their rejection and indignation at the intended reform which would harm contracted international obligations, lead to impunity for the perpetrators of international crimes and deny the victims access to Spanish justice ;
- regret the legislative channel chosen to process the announced reform ;
- declare that, as laid down by the Constitutional Tribunal in 2005 regarding the Guatemala Case, the scope of universal jurisdiction has no bounds and enjoys primacy over national interests, if any ;
- declare that the right to « acusasión popular » is a right enshrined in art. 125 CE, which allows civil society to intervene, independent from party and government bodies, as well as from financial conglomerates and, hence, outside the influence of the latter. Further considers that this is a factor which should prompt the public authorities to foster and support rather than curtail this faculty.
- The signatories demand that the bill as presented be rejected, letting thus the Spanish Courts fulfill their mandate that is to guarantee the effective implementation of the rights of civil society and victims, thereby complying with contracted international obligations and the conscience and sense of justice of each and every member of Parliament.

See the joint statement of various NGOs on this proposed bill in Spanish and in English.

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