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The last attempt to dismantle universal justice in Spain

posted Oct 13, 2015, 9:14 PM by The Tibetan Political Review
 
By José Elías Esteve Moltó (University of Valencia, Institute of Human Rights)


 The Supreme Court's ruling 296/2015 and the return to pre-Nuremberg days

1.- The due process: from the National Court's Central Court nº 2 to the Supreme Court


The Supreme Court ruling 296/2015 (appeal nº 1682/2014) of 6 May 2015 is an attempt to the definitive death blow to universal justice in Spain and ratifies in all its assumptions the fateful legal reform promoted by the Popular Party's Government in constitutional Law 1/2014. To start with, it must not be forgotten that the motivation for this legislative reform was based solely and exclusively on extralegal arguments: to defend at all costs Spain's national debt and commercial and economic interests with China, the great world power. A brief review of the due process of this matter in hand confirms these facts without a doubt.

The case began with the presentation of a lawsuit in the National Court on 28 June 2005, with the Comité de Apoyo al Tíbet (CAT) exercising popular action, seconded by the Fundación Casa del Tíbet, and with Thubten Wangchen as private prosecution. Several Chinese leaders were accused of having committed crimes of genocide, torture, state terrorism and crimes against humanity. The most important of the accused were: Jiang Zemin, former president of China, secretary of the Chinese Communist Party and maximum authority of the People's Liberation Army until 2003, and Li Peng, former prime minister during the repression in Tibet in the late 1980s and early 1990s.

On 27 July 2005 the public prosecution issued a report invoking the Supreme Court's thesis in its ruling of 8 March 2004, and declaring: "it does not correspond to any state to concern itself unilaterally with establishing order, by resorting to criminal law, against all others in the world, but it is necessary instead for there to be a point of connection that legitimizes the extraterritorial scope of its jurisdiction", adding that a broad understanding of universal justice like that to which the lawsuit aspired, led to "a disproportionate interpretation of national sovereignty" and could unleash a series of "consequences not always desirable from the perspective of juridical safety". This restrictive interpretation of the principle of universal jurisdiction was seconded by the Central Investigative Court Nº 2, following the argument in the public prosecution's report, which stated that Spanish jurisdiction "is not competent to try the case as none of the accused have Spanish nationality or are in Spanish territory, nor has Spain refused their extradition, and also, there does not seem to be any connection with Spanish national interests in direct relation to these crimes" (writ of non-acceptance of 5 September 2005, preliminary proceedings 237/2005. Central Investigative Court Nº 2 National Court). This resolution was immediately appealed at the National Court's Criminal Court.

The Fourth Section (Appeal Court) of the National Court's Criminal Court, in charge of resolving the matter, set the hearing for 13 October 2005. However, a few days before the hearing, a ruling was issued that would affect the case irrevocably. The Constitutional Court's famous ruling of 26 September 2005 resolving the appeal for protection in the case of the Guatemala genocide, by fully stressing the motive for the appeal, rescinded the scheduled hearing and postponed it sine die. As a result of the existence of various cases pending in the National Court, and with the aim of unifying criteria regarding universal jurisdiction, this decision was remanded to the Plenary Court of the Criminal Court, giving rise to the controversial agreement of non jurisdiction of 3 November 2005. Once the Constitutional Court and the National Court's Plenary Court had declared their positions, a ruling on 21 November set the hearing of the appeal for 14 December, at which the plaintiff reiterated the request that the appeal be accepted (this time adding the grounds of law in the Constitutional Court's ruling to the arguments already laid out in the appeal), while the public prosecution maintained its request that the lawsuit be shelved definitively, and ended by declaring that this legal initiative was an abuse of law.

Finally, the ruling of 10 January 2006 by the Fourth Section of the National Court's Criminal Court ended by declaring Spanish jurisdiction competent in the case of the genocide of the Tibetan people, without conditioning it to any element of national connection, thereby following what the Constitutional Court had established. The ruling declared that the acts denounced "constitute the crime of genocide as established in Article 2 c) and d) of the Convention on the Prevention and Punishment of the Crime of Genocide: the former, regarding the intentional subjection of the group to conditions of existence that could lead to their physical destruction, in part or in full, and the latter, to the adoption of measures aimed at preventing births within the group". (Ruling of 6 January 2006, Fourth Section of the National Court's Criminal Court, Roll of Appeal 196/05, Preliminary Proceedings 237/05). It is also important to emphasise that the National Court's judges mentioned the nonexistent possibilities of the case being tried by the International Criminal Court, as on one hand Article 11 of the Treaty of Rome of 17 July 1998 establishes that this court is only competent to try crimes committed after it entered into force (and the acts denounced in the lawsuit took place prior to 1998), and on the other hand, they declared that "neither China nor, naturally, Tibet are party of said Statute, nor is there any evidence whatsoever of China accepting the competence of said Court, with the result that no reply can be expected from said jurisdictional international body".

The last of the elements examined in the ruling before its final pronouncement refers to the so-called test of reasonableness, which we mention here as the Supreme Court  resorted to it repeatedly in this ruling. This criterion owes its origin to the ruling of non jurisdiction issued on 3 November 2005 by the Plenary Court of the National Court's Criminal Court, which had met to unify criteria regarding universal jurisdiction after the Constitutional Court's ruling on the Guatemala case. Said ruling states: "Once the court has confirmed that the case meets the conditions required by internal juridical procedures, and has ruled out any jurisdictional action either in the place where the supposed crime was committed or by the international community, jurisdiction should, as a rule, be accepted unless an excessive abuse of law is detected in the absolute non-connection of the matter due to its concerning crimes and places that are completely strange and/or distant and the plaintiff cannot show any proof of direct interest or relation to them".

In this Tibetan case, the judges of the Fourth Section of the Criminal Court interpreted the above criteria solely with the aim of preventing an abuse of law, but they argued that in no case could this argument be used as a pretext for continuing to leave international crimes unpunished, and more so under a postulate as subjective as it was unusual, in a reference to the crime or place where the acts are committed being "a strange and/or distant place". They warned about the danger of this requirement being interpreted with the intention of shelving the Tibet lawsuit (as it is not very close to Spain nor does it have a direct connection to Spain), an argument that was clear in the hearing of the appeal, which was contrary not only to the wording of Article 23.4 of the Law of Judicial Procedure (and the recent ruling by the Constitutional Court), but also to the principle of legality (Article 9.3 in relation to Article 25.1 of the Spanish Constitution) and the right to effective legal protection (Article 24.1 of the Spanish Constitution) and equality before the law (Article 14.1).

Fortunately, at the first opportunity the National Court judges had to state their opinion and interpret that criterion of reasonableness, they declared in favour of the fight against impunity, ruling in favour of the appeal and concluding on this Tibetan case that, "given the facts described in detail in the lawsuit together with the important accompanying documents, it is clear that not only do the acts denounced constitute a crime of genocide that should be investigated by Spanish jurisdiction following the arguments above, but also that this jurisdictional body is competent to accept and process the lawsuit that was initially thrown out under postulates and principles established by the Constitutional Court's ruling of 26 September 2005.[1]

As a result of the lawsuit being accepted, the plaintiff asked the court to initiate preliminary proceedings, and from the start Chinese diplomatic pressure on the case has been public and manifest. On 5 June 2006 the first victim in the Tibetan case appeared in court before the National Court judge, which led to loud protests from the  Chinese Government through the spokesman of the Chinese Foreign Ministry, Liu Jianchao, who declared to the international press that the investigation into so-called international crimes committed in Tibet was "complete slander, an absolute lie" and obeyed secessionist intentions orchestrated by "the Dalai Lama's clique".

On 1 September 2010 the plaintiff presented another document, extending the lawsuit against the same persons accused of serious violations of the Geneva Conventions. In a ruling on 30 March 2011 the extension of the juridical classification of the acts denounced was accepted to include war crimes, in reference to the transfer of Chinese population to Tibetan territory; i.e., transfer by the occupying power to the occupied territory, which is a serious violation of Article 49 of the 4th Geneva Convention, which states in its last paragraph: "The occupying power will not proceed to evacuate or transfer part of its own civilian population to the territory it occupies."

On 20 March 2013, in a further document, the plaintiff extended the lawsuit to include Hu Jintao, former president of the People's Republic of China, who had ceased in his post on 15 March 2013. In a ruling on 9 October 2013 the Fourth Section of the National Court's Criminal Court agreed to extend the lawsuit to include the former Chinese leader as "his diplomatic immunity had expired". On 8 January 2014 the court ruled to issue rogatory commissions to the popular authorities of the People's Republic of China, for them to notify Hu Jintao of the lawsuit and take his deposition as an accused.


In a writ on 18 November 2013, the Fourth Section of the National Court's Criminal Court ruled that international warrants of arrest were to be issued so as to extradite the accused, and on 10 February 2014 the Central Investigative Court Nº 2 issued international arrest warrants in order to take the depositions of the accused, and to extradite the former leaders of the Chinese Republic.

As a result of Chinese diplomatic pressure, the Law 1/2014 of 13 March modified Article 23.4 of the Law of Judicial Procedure for a second time. Soon afterwards, in a writ on 20 March 2014, the public prosecution ordered the proceedings to be concluded and the case remanded to the National Court's Criminal Court for it to declare itself "on the concurrence of the new requirements" imposed by the legislative reform; in adherence to the new wording that the Law 1/2014 gave Article 23.4 of the Law of Judicial Procedure on the requirements and conditions of the principle of universal jurisdiction.

Finally, in a ruling on 25 March 2014 the Central Investigative Court Nº 2 ordered that the proceedings be concluded and the case remanded to the National Court's Criminal Court. In reply, the plaintiff submitted a document on 18 May 2014 arguing strongly for revoking the closing of the proceedings, as indispensable proceedings had not been practised and, as a result, the case should be remanded to the investigative court, and in a subsidiary request, that the court rule in favour of holding oral hearings. With respect to the two rulings, the plaintiff asked the Court to consult the Constitutional Court regarding the constitutionality of the previous ruling.

Though the court did not proceed to question this matter, the Socialist parliamentary group did question the constitutionality of the reform, and submitted an appeal of unconstitutionality, which was accepted by the Constitutional Court on 23 July 2014.

After the plaintiff's request of 18 May 2014 was admitted and sent to the Second Section of the National Court's Criminal Court to be studied, the decision was remanded to the Plenary Court of the Criminal Court, the majority of whose judges ruled on 2 July 2014 in favour of "dismissing and closing this case", while two of them cast personal votes against.          


2.- Grounds of law invoked by the High Court


In a series of introductory paragraphs, the residing judge Conde Pumpido foreshadowed what would be his terrible verdict for the victims of international crimes, giving his blessing to the legal reform of the Law 1/2014 and applying it to its strictest consequences. One can see from the start a contradiction between the definition of universal jurisdiction and the scope it should have. On one hand, universal jurisdiction is recognized as being "particularly detrimental for the essential interests of the international community", and as a result "consists in the exercise of criminal jurisdiction by the courts of a specific country in particularly serious international crimes, based on the nature of the crime without taking into consideration either the place where the crime was committed or the nationality of its perpetrator."

But while the gravity of the crime and its universal character point to this exceptional jurisdiction, which considers humanity in its entirety a protected juridical good, that same universality is disregarded when the second paragraph states: "that does not mean they are obliged to extend said jurisdiction to persons outside their territory." The ruling also alludes to international criminal law in generic terms and ends by saying there is no treaty obligation for states to pursue these heinous international crimes. What is striking is that forbidding genocide is a rule of imperative law or ius cogens (as the International Court of Justice has stated repeatedly), yet the necessary judicial measures are not put in place for its subsequent persecution. Quite the contrary: the High Court insists on an interpretation that protects state interests to the detriment of the victims of international crimes. Moreover, this state wilfulness, which was denounced in its day by the judge of the International Court of Justice, Cançado Trindade, is invoked and defended in the name of the rule of law. Specifically, the sixth grounds of law states: "the fight against impunity in international criminal law cannot be at the expense of the essential guarantees of the rule of law." One might well ask why and for whom was this international criminal law drawn up? To protect the victims or those who committed genocide? To fight impunity or guarantee it to our economic and commercial partners and allies?

It is also surprising that, with an appeal pending on the unconstitutionality of the reform of universal justice, accepted by the Constitutional Court on 23 July 2014, as mentioned above, the Supreme Court should declare itself openly, thereby interfering in this matter, and reaching conclusions such as: "The 2014 reform is not unconstitutional as it does not violate the principle of equality, the prohibition of arbitrariness, or the fundamental right to effective judicial protection."

       

  1. Antecedents of the verdict: a glaring and repeated error of fact

      

       The antecedents of this verdict, which describe in brief the above-mentioned due process, state in the first antecedent that the acts in the lawsuit "restrict themselves to the supposed crimes committed as a result of the People's Republic of China's authority in Tibet, and its military occupation from 1950 to 1979." The first grounds of law reiterates: "These proceedings investigated the apparent crimes committed as a result of Tibet's occupation by the People's Republic of China from 1950 to 1979."

        These declarations clearly show that none of the judges of the Supreme Court, let alone the presiding judge Conde Pumpido, have ever actually read the lawsuit. Said lawsuit insists repeatedly that in order not to violate the principle of legality, later invoked by the verdict in question, only acts committed after 1971 are denounced, even though conclusive proof existed and the reports by the International Commission of Jurists at the UN General Assembly since the 1950s showed  conclusively that genocide had been committed against the Tibetan people since 1950. Even so, the lawsuit states that the date of 1971 was chosen because the crime of genocide was incorporated into Spain's internal law after it ratified the Convention for the Prevention and Punishment of the Crime of Genocide in law 44/1971. Thus, after 15 November 1971 Article 136 bis of the former Criminal Code allowed Spain to pursue acts corresponding to this crime; a fact that was clearly unknown to the Supreme Court, which divides the ninth grounds of law in its verdict into the following conceptual sections:


b) Legislative and jurisprudential evolution

        This section of the verdict begins by stating that Spain has had three constitutional laws concerning this matter, all of which have evolved over time. The tenth grounds of law describes the Constitutional Law of 1985, which the Supreme Court calls into question despite said law's clear understanding of the absolute nature of universal jurisdiction, arguing that "the regulation let it be understood that at least in certain types of crime, the legislator started with the implicit assumption that those responsible were in Spain." This opinion is hardly surprising, as from the beginning, as this same legal reasoning states, this interpretation by the Supreme Court was clear in its verdict on the Guatemala case, "both the majority verdict, and the personal vote". Moreover, they consider that the requirement for "national interest as a legitimizing element" was endorsed by the Constitutional Court's ruling on the Guatemala case, when in fact this ruling was precisely what opened he door for the victims of international crimes, such as  this Tibetan case.        

         The 13th grounds of law reiterates the same idea of there being a national connection, subsequently adopted in the 2009 reform to universal justice, and links it to what seems to be a sacrosanct principle of greater juridical value than ius cogens, namely,  the "criterion of reasonableness". To describe this criterion not contemplated in the law, the Supreme Court cites the same arguments as the 21 November 2005 ruling by the Plenary Court of the National Court's Criminal Court (which met after the Constitutional Court's ruling on the Guatemala case) to justify that the "value of the citizens of the state exercising universal jurisdiction is a reasonable criterion of self-limitation to prevent the proliferation of cases involving completely strange and/or distant crimes and places, together with the excessive use of the national jurisdictional bodies whose competence is claimed (...) because in cases completely lacking any connection with the country or the acts denounced, in the wide sense expressed above, the proceedings may have zero practical effectiveness."

           Moreover, the residing judge Conde Pumpido again focuses on the Constitutional Court's interpretation of universal justice, even though the appeal presented by the socialist M.P.s is still pending resolution, and not satisfied with this margin of appreciation, in the 16th grounds of law criticizes the fact that in its day the Constitutional Court's verdict on the Guatemala case was interpreted erroneously. Thus, he laments the acceptance of the Falun Gong and Couso cases: deviations that the 2009 reform tried to correct, as it is not possible "to be unaware of the problems a broad interpretation of universal jurisdiction is having on Spain's international relations". However, the Supreme Court again regrets in its 17th grounds of law that "the effectiveness of this reform was not restrictive enough", and on this occasion does not miss the chance to criticize "popular action and the broad - some would say fraudulent - interpretation of the concept of Spanish victims."

         Following this line of argument, he ends by criticizing the Tibetan case in its entirety and defending the 2014 reform. Reading some of these paragraphs one is not surprised at appraisals with a very political slant, which seem to evoke echoes of the bitter arguments in the Congress and Senate during the drawing up of the Law 1/2014, which only the Popular politicians defended. The ruling goes on to say regarding the Tibetan case: "This is the case of the proceedings in question, which investigate crimes supposedly committed in China over a period of more than 50 years (the occupation of Tibet, following China's civil war, took place in 1950, 65 years ago), with little procedural viability, the instruction having already lasted ten years without any important advances, and where it is not easy to show an important connecting link with our jurisdiction. Proceedings that also, despite their scarce effectiveness, continued giving rise to problems in Spain's international relations due to the lack of clear justification for continuing the process in strict terms of international law." Fortunately it ends saying, "with this reform, regulating universal jurisdiction in our country has reached its culmination for the moment" (grounds of law 19 and 20), which has confirmed the closing of the Tibet case (grounds of law 20).      

           These last appraisals imply that "problems in Spain's international relations" were being caused. Indeed, the ruling on 9 October 2013 by the Fourth Section of the National Court's Criminal Court agreeing to charge former Chinese president Hu Jintao with genocide, and the ruling of 18 November 2013 agreeing to issue international arrest warrants against the Chinese leaders, respectively, sparked a diplomatic offensive by Beijing. Zhu Weiqun, president of China's Committee of Religious and Ethnic Matters, the top parliamentary advisory body, called the case 'absurd' in declarations published by official Chinese media, adding, "If the court of any country takes this matter up it will bring enormous shame on itself. Let them go ahead, if they dare!" (China calls Spain's arrest warrants for Tibet, absurd. Wednesday 20 November 2013, http://es.reuters.com/article/topNews/idESMAE9AJ01H20131120). Likewise, the spokesman for the Chinese Foreign Ministry, Hong Lei, said that Beijing would strongly oppose the decision of the court, ending: "We urge Spain to face China's serious position, modify its erroneous decision, repair the grave damage and abstain from sending erroneous messages to the Tibetan independence forces and from upsetting Sino-Spanish relations."

         Beijing has also expressed its discontent with the lawsuit to the Spanish ambassador in China, Manuel Valencia, and has threatened possible economic reprisals at a moment when Spain wishes to strengthen relations to attract more Chinese investments and reduce its large trade deficit with the Asian country. (REINOSO: China makes veiled threats to Spain because of the arrest warrant against Jiang Zemin. The spokesman for the Chinese Foreign Ministry thinks this incident will affect bilateral relations. EL PAÍS, 11 February 2014).   

         In view of China's public acts of pressure on the Spanish Government, it is quite clear that the motive behind the reform of Article 23.4 of the Law of Judicial Procedure has been  China's threats. The proof lies in its appearing repeatedly in national and international media (Popular Party forces a reform to close the investigation against top-ranking Chinese leaders FERNANDO GAREA / MIGUEL GONZALEZ Madrid 22 January 2014; Miguel González, "The Government will reform the law in order to deactivate the investigation into the Chinese regime. The extent of universal jurisdiction will be restricted a second time", El País, 15 December 2013 at http://politica.elpais.com/politica/2013/12/15/actualidad/1387130940_131381.html?rel=rosEP)

        When asked about the reform in Law 1/2014 of 13 March in an interview on the TV programme El Debate de la 1 on 10 April 2014, the Spanish foreign minister Margallo declared in minute 30 of the interview that China had 20% of Spain's national debt and that these cases were dangerous from the point of view of international relations. Moreover, he declared with disdain that some judge had decided to issue international arrest warrants against Chinese authorities, and Spain could not become a "universal sheriff". He added that these proceedings were not effective investigations, but rather "playing to the gallery, which does not put an end to impunity". Also, he suggested that "the judges would do better to close (the case) and speed justice up".

        Lastly, the Supreme Court questions the efficacy of this process. But if it was so ineffective, why such a hurry to proceed with a legislative reform and thus close the Tibet case? An act that was received with praise and public thanks by the Beijing Government.


c) Conflict of regulations between the Law of Judicial Procedure and the Treaties. International Treaty Criminal Law


  The 21st grounds of law then briefly denies the existence of universal jurisdiction for pursuing crimes of genocide and torture, before concluding that the various treaties do not establish an imperative nature of the universal persecution of crimes, and thus the reform of Law 1/2014 does not violate Article 96 of the Spanish Constitution in any way.

       The Supreme Court's strict interpretation differs from the fundamental aim of these international treaties, which was remembered by the International Court of Justice and which despite being mentioned in the appeal was in the end ignored. In the U.N. General Assembly's Resolution 96 (1) of 11 December 1946, the International Court of Justice declared that "the origins of the Treaty show that the United Nations intended to condemn and punish genocide as a crime of international law that involves denying the right of entire human groups to exist, a denial that shocks the conscience of the world, leads to great losses for humanity, and goes against moral law and the spirit and objectives of the United Nations. As a result, the Court continued, "the principles that inspired the Treaty are recognized by civilized nations as obligatory for states, even those without any kind of treaty obligation";  to which it added the clear affirmation of the "universal nature of both the condemnation of genocide and the necessary cooperation to free humanity from such a hateful scourge". Going a step further, the International Court of Justice went on to say explicitly a few years later that from all the above arguments it was an undeniable conclusion that "the rights and obligations enshrined in the Treaty are "erga omnes" rights and obligations", (ICJ: Application of the Convention on the Prevention and Punishment of Genocide. Preliminary exceptions. (Bosnia, Herzegovina, vs. Yugoslavia), ICJ Reports 1996, paragraph 31) and therefore their violation by one state produces damage to all other states (ICJ Asunto Barcelona Traction, Light and Power Company Ltd. [1970, 2ª fase]  CIJ Receuil des arréts, avis consultatifs et ordonnances de la CIJ 1970, paragraphs 30, 33, 34), and the court warned: "the obligation of each state to prevent and punish the crime of genocide is not limited by the territoriality of the treaty".  In 2007 the International Court of Justice reiterated this argument, regarding the Application of the Treaty to Prevent and Punish the Crime of Genocide, background (Bosnia Herzegovina vs. Serbia and Montenegro) that the prohibition of genocide is customary international law, as it is  considered an international crime, adding that as the regulation prohibiting genocide is an imperative rule of general international law (ius cogens), the "nature of the prohibition of genocide and the objective of the Treaty are both important for interpreting the second proposition put forward in Article 1, namely, the duty of Treaty parties to prevent and punish the crime of genocide".

         To conclude, the imperative obligation of general international law to universally pursue the crime of genocide cannot be limited, restricted or eliminated by any conditions established in any internal law, i.e., given the above-mentioned obligation, the wish that in future Spanish courts only pursue the crime of genocide if the accused is a Spanish citizen, a foreigner who is habitually a resident in Spain, or a foreigner who is on Spanish soil and whose extradition has been refused.


     d) Comparative law. Customary International Criminal Law

   

        In its 22nd grounds of law the Supreme Court describes the internal legislations of Germany, Japan, Turkey, France, Great Britain, Belgium, Hungary, the Netherlands, Canada and the United States before concluding that: "In short, the international custom or practice generally accepted as customary law does not endorse the demand for an absolute or unconditional model of universal justice like the one contemplated in our legislation in the original version of the Law of Judicial Procedure". Moreover, to add consistency to this argument the Supreme Court turns in its 23rd grounds of law to the fact that in 2003 Belgium, too, modified its law on universal justice, although once again deliberately ignoring the extralegal reasons that led to said modification.


e) Jurisdiction on war crimes.


One of the most controversial points in the verdict concerns war crimes, which in its day led to a personal vote when the case was rejected by the Plenary Court of the National Court's Criminal Court. After the third grounds of law, the ruling warns about the constitutionality of the reform of universal justice regarding this limitation to what is established in the Geneva Conventions and does not involve any discrimination against the victims or violate their effective judicial protection.

The court now returns to this matter and the 24th grounds of law states: "it should be established clearly and firmly, for this and other similar cases, that section p) of Article 23 4º of the Law of Judicial Procedure is not applicable to cases already specifically regulated under the earlier sections of the precept, namely, crimes against persons and goods that are protected in cases of armed conflict."

        The 27th grounds of law then interprets the Geneva Conventions in a radically different way to how the National Court's Central Investigative Courts have done so up to now and after the reform and which has enabled them to continue investigating various cases. The Supreme Court is restrictive regarding the possible conflict between international law and the internal reform of universal justice: "But it is important to declare that the wording of Article 23 4ª a) of the Law of Judicial Procedure does not violate the Geneva Convention. This obligation refers to cases when the perpetrators are in the territory of the signatory state, as its content and objective are to prevent any of the perpetrators from finding refuge in a country that has signed the Convention (...) the expression 'search and bring to trial in its own courts' refers necessarily, according to the literal and grammatical interpretation of the precept, to searching within the state's own territory. To 'search, extradite and bring to trial in its own courts' would be the correct formula if the aim was to establish a general obligation to search in any country in the world, even for non belligerent countries completely unconnected to the armed conflict where the crime is thought to have been committed".

           Moreover, some of the Supreme Court's declarations are startling, as the literal meaning of Article 146 of the 4th Geneva Convention and its interpretation by the International Red Cross lead to radically contradictory conclusions. Also, the Supreme Court goes a step further and calls the absolute universal persecution of serious violations of the Geneva Conventions "a system of clandestine interference in other countries, kidnapping and transferring the accused without abiding by the legal procedure of extradition, which would be a serious violation of international law, and obviously cannot be the system agreed to in the Geneva Convention."

The conclusion in the 29th grounds of law may bring down some of the cases still open in the National Court, such as the Couso case, as it warns: "As a result, and to make it clear in this and other similar proceedings with similar bases, under the current Constitutional Law 1/2014, Spanish courts lack the jurisdiction to investigate and bring to trial crimes against persons and goods protected in armed conflicts committed abroad, except in those cases when the proceedings are directed against a Spaniard, a foreigner habitually resident in Spain, or a foreigner who is in Spain and whose extradition has been denied by the Spanish authorities. Said jurisdiction cannot be extended "in absentia" depending on the nationality of the victim or any other circumstance."

In the light of this verdict by the Supreme Court, the public prosecution of the National Court will probably soon resort to it in order to request the closing of some of the proceedings, such as the Couso case. Again in light of this verdict, perhaps some of the arguments put forward earlier should now be looked at again, such as that of the judge of the Central Investigative Court Nº 1, Santiago Pedráz, who in the Couso case warned openly that the new Article 23.4 of the Law of Judicial Procedure contradicted Article 146 of the 4th Geneva Convention, and therefore "closing the case is not applicable" (Writ of 17 March 2014, proceedings 27/2007, Central Investigative Court Nº 1, National Court).


f) Final considerations


Lastly, in its 30th grounds of law, the Supreme Court goes over all its earlier arguments, and concludes in the 31st grounds of law that the retro-activity of Constitutional Law 1/2014 is necessary for basic constitutional reasons, and that "the Criminal Code in force recognizes the retroactive effect of criminal legislation that is more favourable to the accused - as in the current case". Lastly, the Supreme Court does not miss the opportunity to critizise once again the cases of universal justice carried out in Spain, as: "the only restriction they establish is the exclusion of opening proceedings 'in absentia', and from the experience gained in the National Court after applying universal jurisdiction for 30 years (1985-2015), these cases do not usually end in a trial (...) It is worth remembering that in the current case the effectiveness of the proceedings, after ten years' investigation, is almost zero." Once again, if these proceedings were so harmless and inefficient, why have they given rise to two such important and far-reaching legal reforms?

The Supreme Court then resorts again to the criterion of reasonableness, this time to state: "It is not reasonable to maintain 'sine die' legal proceedings lacking any  foreseeable effectiveness, except in cases when the accused perpetrators are displaced temporarily to Spain". This particular argument could be wielded to keep these proceedings open and also to prevent the perpetrators of genocide from coming fearlessly to our country to subscribe to juicy trade agreements.

         As a grand finale, the 43rd grounds of law strengthens the criterion that Spanish courts should be an "island", unconnected from all that is happening in international order, as "the criterion that Spanish courts do not obtain their jurisdiction from customary or international treaty law, but from the principle of democracy, the Spanish Constitution and the laws passed by Parliament, [a criterion] already established by this Supreme Court, should be restated in this case, and as a result the allegations of unconstitutionality should be rejected, and the range of our jurisdiction in this matter should adhere to what is established by the legislator in Organic Law 1/2014." So we should forget that we are part of the international community, and that, as a state, we are part of the International Criminal Court's Statute of Rome, which was approved by Spain on 18 July 1998 and ratified on 24 October 2000, and establishes in its preamble that "It is the obligation of every state to exercise its criminal jurisdiction against those responsible of international crimes". And as a result let us end by uprooting any regulation or principle that is based on or inspired by the Nuremberg Principles, and let us welcome the new era of the 'Spain' brand and of kowtowing to China's de facto power and the large corporate interests that irremediably sow democratic ruin and violate the freedoms of European citizens and all of humanity.


[1] Auto 16 de enero de 2006, sección Cuarta de la Sala de lo Penal de la Audiencia Nacional, Rollo de Apelación 196/05, Diligencias Previas 237/05, Décimo Fundamento de Derecho.



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