Spanish Congress Enacts Bill Restricting Spain’s Universal Jurisdiction Law

Spanish Congress Enacts Bill Restricting Spain’s Universal Jurisdiction Law

On November 4, 2009, the Spanish government enacted a bill that would limit the reach of its universal jurisdiction law and may restrict Spain’s ability to prosecute serious human rights crimes.  The bill was passed by the Congress of Deputies, or lower house, on June 25 and then went to the Senate, which made minor amendments and approved the bill on October 15.  The bill passed with support from Spain’s ruling party, the Partido Socialista Obrero Español (PSOE) and its main opposition party, the Partido Popular (PP).  It was opposed by parties representing the Basque region, Catalonia and Galicia, as well as the United Left, who called the bill a setback for the defense of human rights.

What is Universal Jurisdiction?

Universal jurisdiction (UJ) is a doctrine of international law that holds that certain crimes are so terrible that the duty to prosecute them transcends all borders.  In countries with universal jurisdiction laws, courts may exercise jurisdiction over cases of torture, genocide and crimes against humanity regardless of the location where the crime was committed or the nationality of the perpetrator or the victim.  CJA has used Spain’s UJ law to file its Guatemala Genocide Case and the 1989 Jesuits Massacre Case in El Salvador.  The new amendment does not apply retroactively so will not affect these cases.

How the Amendment Changes Human Rights Litigation in Spain

Spain’s former UJ law, passed in 1985, extended the courts’ criminal jurisdiction to certain named crimes, for example genocide, terrorism and piracy, as well as “any other [criminal act] which, according to international covenants and treaties, should be prosecuted in Spain.”  Thus, any serious crime that violated international law could be heard in Spanish courts as long as it met certain procedural safeguards.

The new amendment changes this law in three important ways.  First, it correctly adds crimes against humanity to the crimes listed as admissible under the statute.  While crimes against humanity was admissible before as a criminal act in violation of international treaties, this new statute clarifies this cause of action.

Second, the amendment limits the law’s application to cases where (i) the alleged perpetrators are present in Spain, (ii) the victims are of Spanish nationality, or (iii) there is some relevant link to Spanish interests.  This new jurisdictional requirement could profoundly limit the Spainish courts’ ability to prosecute human rights crimes.  On the other hand, courts could interpret the third “Spanish link” condition broadly so that the law would continue to function largely unchanged.  For example, courts could interpret a Spanish link to include any historical tie to the place of the crime.  Likewise, courts could find that it is in Spain’s interest to prosecute those crimes that are so heinous that they are an attack on all humankind.  CJA supports this broad reading of the Spanish law as amended, and hopes that future litigation will establish the law’s continued broad application in human rights cases.

Finally, the law as amended will not be a basis for jurisdiction if another “competent court or international Tribunal has begun proceedings that constitute an effective investigation and prosecution of the punishable acts.”  This amendment also has the potential to severely restrict human rights abuse victims’ access to Spanish courts; but again, the true meaning will depend on Spanish courts’ interpretation of this provision.  CJA is optimistic that the courts will limit this provision to those instances where the investigation and prosecution are in fact effective, that is, Spanish courts will be barred from hearing only those cases where the defendant faces meaningful criminal punishment for his crimes.

All in all, this new amendment confuses the scope of Spain’s UJ law rather than clarifying its application.  But CJA is hopeful that the Spanish courts will interpret the amended law in such a way that it remains an effective tool for bringing human rights abusers to justice.