International law does not impose any specific model of universal jurisdiction

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 (“acció n popular”). After the 2014 reform, only the victim or the State prosecutor can do so. The TC understands that although the Constitution authorizes the “acció n 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.