Ruling of the Spanish Constitutional Court Legitimising Restrictions on Universal Criminal Jurisdiction

Ruling of the Spanish Constitutional Court Legitimising Restrictions on Universal Criminal Jurisdiction

Written by Nicolá s Zambrana-Té var

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).