On March 8th a Spanish High Court judge dismissed drug trafficking charges against five Egyptian sailors. They had been captured in international waters on a non-Spanish boat with 10 tons of hashish.
The reason for the dismissal was the requirement of the new amendment to Spain’s universal jurisdiction statute for defendants to be Spanish citizens or residents, as discussed in a prior post.
Important for the dismissal, said the judge, was the international treaty against drug trafficking did not have provisions to “establish the jurisdiction of the national courts, but instead [the treaty] only requires cooperation” from governments.
This is a reference to the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which provides as follows:
- “Each Party [to the treaty] Shall take such measures as may be necessary to establish its jurisdiction over [certain offenses] . . . when: (a) i) The offence is committed in its territory; [or] ii) The offence is committed on board a vessel flying its flag or an aircraft which is registered under its laws at the time the offence is committed; [or] (b) i) The offence is committed by one of its nationals or by a person who has his habitual residence in its territory; [or] . . . (2) a) when the alleged offender is present in its territory and it does not extradite him to another Party on the ground: i) That the offence has been committed in its territory or on board a vessel flying its flag or an aircraft which was registered under its law at the time the offence was committed; or ii) That the offence has been committed by one of its nationals . . . .“ (Art. 4)
- “The Parties [to the treaty] shall afford one another, pursuant to this article, the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to criminal offences established in accordance with article 3, paragraph 1[of the treaty].” (Art. 7(1) (emphasis added).)
Other similar cases will probably be dismissed on the same ground according to Spanish legal sources. Indeed, on April 11th a case against another eight drug-trafficking suspects who were from Syria was dismissed.
However, as discussed in a prior post and comments thereto, the Spanish High Court has refused to enforce the new amendment to the universal jurisdiction statute in cases charging violations of the treaty against genocide and the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War.
These developments prompted an El Pais editorial criticizing Spain’s governing political party for having used a “fast-track” legislative procedure for adoption of the new amendment to the universal jurisdiction statute. If regular legislative procedures had been used, the editorial argued, it would have required “preliminary reports by the State Council and the Council of the Judiciary” that could have guaranteed “the technical quality of the new” amendment. Moreover, the editorial stated, “the principle of universal justice [should] still reach . . . far enough that its power as a deterrent is not undermined.”
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Comment: Dismissal of Drug-Trafficking Charges Against More Foreign Sailors
El Pais reports that Spain’s High Court recently dismissed drug-trafficking charges against seven Syrian sailors on a Tanzanian-flagged ship with 16,000 kilos of hashish. The reason was this year’s amendment to the universal jurisdiction statute.
Fabra, Seven more suspected drug traffickers freed as a result of universal justice reform, El Pais (in English) (May 20, 2014), http://elpais.com/elpais/2014/05/20/inenglish/1400576465_363430.html.