A prior post reviewed the approval on February 11, 2014, by Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), of an amendment of its statute on universal jurisdiction. Last week Spain’s Senate also approved that amendment, which then became law.
That post also predicted that the amendment would cause 12 pending cases under that statute to be dismissed. One of those 12 cases was an investigation of the conduct of three U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
On March 17th, however, the Spanish High Court refused to dismiss that case according to reports in El Pais and the Wall Street Journal. Judge Santiago Pedraz Gómez decided to disregard the new amended law because, he said, it contradicts Spain’s obligations under the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. The judge stated that the Geneva Convention obliges Spain to “prosecute the crime (search for people and make them appear) regardless of the perpetrators’ nationalities and wherever they may be.” Therefore, the court’s decision said,“The judge must refrain from applying this new rule. The rule of law requires the existence of independent bodies to protect the rights and freedoms of citizens, by impartially applying standards that express the people’s will and control the activities of public authorities.”
The court also issued international arrest warrants for three U.S. military personnel who were not present in Spain.
An appeal of this decision is expected.
In the meantime, Spain’s main opposition political party (the Socialist Party) plans to appeal the constitutionality of this amendment to the country’s Constitutional Court. That Party apparently will argue that the amendment breached the right to “effective legal protection” and that the retroactivity of the amendment breached basic constitutional principles.
Comment: Spain Debates Decision Not To Enforce New Amendment
The debate in Spain has started over a High Court Judge’s decision not to enforce the new amendment to Spain’s statute on universal jurisdiction.
On March 18, an official of the Popular Party, which currently is in charge of the Spanish government, said that the judge appeared to be “ideologically biased” and that it was “out of place” for him to circumvent the Spanish code. Judges, this party official said, “are obligated to apply and follow the law.”
Former High Court Judge Baltasar Garzón disagrees. Garzón said the judge “did the right thing” in deciding not to follow “laws that are unconstitutional.” Furthermore, Garzón opined that those who drafted the reforms could face criminal charges in the future because they passed a law that goes against Spain’s international obligations.
PP warns Couso case judge not to circumvent Spanish law, El Pais (Mar. 18, 2014),
http://elpais.com/elpais/2014/03/18/inenglish/1395168355_286573.html
Comment: More Spanish Resistance to New Amendment on Universal Jurisdiction
El Pais reports that on March 19th “High Court judge, Fernando Andreu, became the first member of the bench to publicly question whether the . . . [new Amendment] is constitutional.” In an investigation into the Hutu genocide in Rwanda and Congo between 1994 and 2000, the judge asked all parties “to give their views on whether the inquiry should proceed under the new [Amendment].”
The prosecutors in that case on that same date asserted that the new Amendment should not apply to the case. They said, “The new organic regulatory rules [for universal justice] could lead to an infringement to the right of effective judicial guardianship and access to jurisdiction that is inscribed under Article 24 of the Constitution, and the doctrine of judicial independence.”
Judge Andreu also has posed the same question about the new Amendment to the parties in another investigation he is overseeing – the 2009 attack on a refugee camp in Ashraf, Iraq by Iraqi soldiers in which 11 people were killed.
On March 20th, says El Pais, “prosecutors who are investigating past and present Chinese government officials for alleged genocide and abuses in Tibet . . . [claimed the new Amendment goes] . . . against the Spanish Constitution.”
The other two High Court judges – Pablo Ruz and Eloy Velasco – have so far not publicly commented on the new Amendment.
Perez, High Court begins battle over changes to universal justice doctrine,
http://elpais.com/elpais/2014/03/20/inenglish/1395313800_744701.html
Comment: El Pais Editorial on Universal Jurisdiction
On March 22nd, El Pais, Spain’s leading newspaper, published an editorial about the current debate over enforcement of the new amendment to the country’s statute on universal jurisdiction.
It said, the debate “shows that the closure of open cases was not so simple, although the debate changes in nature. Now it becomes an internal conflict over the interpretation of the rules, rather than diplomatic conflicts that so preoccupied the government for judicial intervention in matters such as the genocide in Tibet, the CIA flights, the death of Jose Couso [a Spanish journalist] in . . . Iraq or the genocide in Guatemala or in the Sahara. The main argument . . . [for the amendment was] these causes must lie in . . . the International Criminal Court (ICC) but . . . major countries like China or the United States do not recognize that jurisdiction. It is clear that China will not prosecute crimes committed in Tibet, nor the United States will judge those suspected of the killing of José Couso [a Spanish journalist in Iraq].”
The editorial continued, “The processes of [universal jurisdiction] involve a number of procedures (warrants, practice tests) that can act as a deterrent against the temptation to commit further atrocities. Although there is much that can be done from a particular country, this bit is reduced to zero if justice is sacrificed to realpolitik.”
El Pais also criticized the summary legislative procedure used by the Spanish government to adopt the amendment. This legislative process “ignored reports and assessments that would have been . . . [useful from] such as the Judicial Council and the Audit Committee. A debate [in the legislature] would have allowed more serene [refinement and distinction] . . . between the maintenance of the principle of universal justice and how to apply it so it does not block international relations. Far from closing [debate with the summary legislative process], the issue remains open.”
Editorial, Conflicting Reform, El Pais (Mar. 22, 2014), http://elpais.com/elpais/2014/03/22/opinion/1395523864_975205.html