A short history of universal jurisdiction in Spain
Last 20 December, the Spanish Constitutional Court (hereinafter, TC) issued a ruling rejecting an application made by more than fifty Socialist Members of Parliament to strike out a bill introduced by the Conservative Party in 2014. In practice, the aforementioned bill put an end to a law of 1985 which provided for one of the broadest universal jurisdiction regimes for criminal matters in the world. Spain had been at the centre of human rights litigation, with well-publicized cases against former presidents Pinochet and Jiang Zemin or top officials of the Israeli Government. Needless to say, such cases had caused a few diplomatic headaches to the Spanish Government, in the course of time. However, a former minister of justice had admitted that in twenty years there had actually been only one conviction in application of universal jurisdiction rules.
A first reform to restrict the extraterritorial jurisdiction of Spanish criminal courts came about in 2009 by an agreement between Socialists and Conservatives. Contrary to the original law of 1985, after 2009 the accused had to be found in Spain, the victim had to be Spanish or there had to be some other relevant connection with the forum. Subsequently, the abovementioned reform of 2014 granted jurisdiction for a larger number of crimes committed abroad but made it practically impossible to prosecute if the crime was completely unrelated to Spain.
In 2016, Esquerra Republicana and the Socialist Party made two separate attempts to reintroduce the principle of universal jurisdiction. The Socialist Party, now in power since June 2018, had again vowed to reform the law, promising to go even further than the law of 1985. However, maybe due to a report from the Ministry of Foreign Affairs, which warned against the future impact on diplomatic relations, it seems that the last text submitted by the Socialists to Parliament last October barely goes back to the 2009 situation.
On two previous occasions (2005 and 2007), the TC had heard cases involving universal jurisdiction but only to manifest that the wording of the 1985 act indeed allowed to prosecute certain crimes regardless of their links to Spain and that the interpretation made of such law by the Spanish Supreme Court or the Audiencia Nacionalhad been so unreasonably mistaken that the due process rights of the parties had been violated. This is however the first time that the TC has had to deal with the constitutionality of the regulation of universal jurisdiction itself.
Now, the depth of the analysis provided in this new 2018 ruling may give more arguments to the critics of the principle of universal jurisdiction, especially because the TC concludes that the international law of human rights and Spain’s international obligations do not mean an absolute right to universal jurisdiction and that the Parliament is indeed entitled to determine which connecting factors enable Spanish courts to prosecute crimes committed abroad.
Universal jurisdiction is constitutional but subject to the legislator’s will
However, the TC begins its analysis insisting on the validity of the “principle” of universal jurisdiction. Domestic courts may thus be granted extraterritorial jurisdiction so as to eradicate impunity with respect to crimes which are particularly heinous, for being very serious aggressions to human rights (p. 29). All States do have an interest in such prosecution but each State determines the specific formula with which to apply such principle, in order to avoid concurrent jurisdiction and conflicts. Such formula involves applying the principle of subsidiarity with respect to other competent courts, as well as the principle of complentariness, basically with respect to the International Criminal Court. The TC also observes that in two other minor reforms of 2005 and 2007, Spanish courts were granted jurisdiction to prosecute additional crimes committed abroad but a specific link to Spain –the nationality of the victim or the presence of the accused in Spain- had already been made necessary.
The TC reminds that the “principle” of universal jurisdiction has commonly been part and parcel of the fundamental right of art. 24.1 CE (“derecho a la tutela judicial efectiva”). This right guarantees due process in court but only in accordance with statutory requirements, so it cannot be directly invoked. The legislator can and must determine the scope of the extraterritorial jurisdiction of Spanish courts and parties do not have an absolute right to bring claims before Spanish courts. Nevertheless, misapplying the legally established scope of Spanish courts’ jurisdiction is indeed an infringement of the constitutionally protected right to due process. The legislative power therefore has a wide margin of appreciation to regulate access to court and it can even impose limits to this fundamental right, provided that such limits are proportionate to other legitimate State interests (p. 40).
International law does not impose any specific model of universal jurisdiction
Given the fact that human rights treaties ratified by Spain are one of the parameters necessary to interpret the fundamental rights granted by the Constitution (art. 10.2 CE), the TC goes on to say that the 2014 reform would be unconstitutional if proved incompatible with such treaties. However, it concludes that it is not (p. 41).
The TC commences its analysis of international law stating that all UN Assembly General resolutions on this issue implicitly acknowledge that there is not a single and universally valid model of the principle of universal jurisdiction, nor has the International Court of Justice directly dealt with this matter so far, despite having had the chance to do it. Both the UNAG and the ICJ, as well as the Princeton Principles, admit that international customary law permits states to grant universal jurisdiction to their municipal courts, without imposing any obligation to do so. Such permission is concretised whenever international treaties in this area are ratified.
Turning to the jurisprudence of the European Court of Human Rights, the TC concludes that art. 6 of the European Convention includes and protects the right of access to justice, as well as any limitations to this right which have a legitimate goal, provided there is a reasonable relation between such goals and the means employed. Additionally, and in the ECHR’s view, the concept of jurisdiction must reflect the international understanding of such concept, which is basically territorial.
The TC further reminds that, in accordance with art. 96 CE, treaties are not hierarchically superior to internal statues. It is for ordinary judges to decide when not to apply a municipal law, in case the dispute falls within the scope of application of a duly ratified treaty or an EU legal instrument. The choice of the applicable law –international or municipal- is therefore a task for ordinary courts and the TC admits that only where the choice made by a judge in the course of specific proceedings is unreasonable or arbitrary is the TC competent to step in (p. 47).
More restrictive universal jurisdiction rules are not unconstitutional
In this regard, the TC admits that the complicated and casuistic reform of 2014 is not arbitrary nor irrational, in which case it would indeed have been unconstitutional. The different treatment now given to different crimes is restrictive, though not unreasonable. Spanish nationals who are victims of terrorism or of certain sex crimes committed abroad will have access to Spanish courts whereas Spanish victims of other crimes will need additional connecting factors, such as the nationality of the accused or his presence on Spanish soil, but this is because the nationality of the victim is indeed the criterion used by several conventions of the Council of Europe with respect to the aforementioned crimes and not to others (p. 54).
The TC also deals with the fact that the 2014 reform excluded criminal proceedings on the basis of the principle of universal jurisdiction if such proceedings were commenced by way of a criminal lawsuit filed by an amicus curiae, such as an NGO (“acción popular”). After the 2014 reform, only the victim or the State prosecutor can do so. The TC understands that although the Constitution authorizes the “acción popular” (art. 125 CE), it does not force the legislator to incorporate such instrument for all sorts of crimes and criminal proceedings (p. 58). Similarly, it is not illegitimate to impose on the victim, in certain cases, the burden of having to file a criminal lawsuit (“querella”), or having to appear in court and be duly represented by legal counsel throughout the entire proceedings, because the legislator has discretion to choose among different remedies and procedural mechanisms.
Finally, the fact that after the enactment of the 2014 law all criminal proceedings already commenced under the previous regime had to be stayed does not go against the prohibition of non-retroactivity, because the abovementioned statute is procedural and not criminal in nature (p. 61). The TC ruling has a concurrent opinion which does not dispute the validity of the abovementioned arguments.
Conclusion: universal jurisdiction is positive but neither compulsory nor uniform
This TC ruling makes an interesting account of the present state of the principle of universal jurisdiction in municipal and international law and describes the different alternatives that States have to incorporate it into their domestic legal system. The ruling is also in line with the broad discretion and margin of appreciation that the Spanish TC commonly affords the legislative power. It will come as a surprise to readers from the United States that the TC makes no reference to the diplomatic embarrassments mentioned at the beginning of this note, nor does it say, as the US Supreme Court often does -in cases involving the act of state doctrine, the political question or extraterritorial jurisdiction-, that the judiciary should give the Executive enough leeway to conduct the foreign policy of the nation.