The Spanish National Court (SNC) or Audiencia Nacional is located in Madrid and has jurisdiction throughout the whole country. It is composed of a president who oversees the entire court, presidents of each division of the SNC, and the judges assigned to the divisions. The SNC’s overall president is always chosen from among the presidents of the chambers at the Spanish Supreme Court.
Located in a high-security building in central Madrid, the SNC has jurisdiction over (1) cases relating to more than one of the provinces throughout the country, (2) serious monetary and drug trafficking cases, (3) serious crimes committed outside the country when, according to Spanish law and international treaties, Spanish courts have jurisdiction to prosecute them. A recent Organic Law – the most important type of law designed to protect the fundamental rights and civil liberties of Spanish citizens – recognizes the SNC’s jurisdiction over the execution of European arrest warrants and requests for extradition.
CJA currently has two criminal human rights cases in the SNC: the Guatemala Genocide Case and the Jesuits Massacre Case based on a 1989 massacre in El Salvador.
SPANISH CRIMINAL CASES
Unlike U.S. law, where criminal charges are brought only by a government prosecutor, Spanish law allows ordinary citizens to pursue criminal actions by filing criminal complaints. If a victim files a complaint directly with an instructing (or investigative) judge, the victim becomes a party in the case during the investigation and trial phases. This is known as a private prosecution or acusación particular. Spanish law also allows people not directly connected to the crime to take part in the case. Important public interest groups often join these complaints as popular prosecutors or acusadores populares.
SNC CRIMINAL DIVISION
The criminal division is made up of six chambers. An instructing judge presides over each chamber. For example, well-known Judge Baltasar Garzón has for many years been the presiding judge in charge of Chamber Number 5. Once an instructing judge accepts a criminal case, he or she initiates an investigation that can take anywhere from 30 days to several years. After this investigation phase is concluded, the instructing judge closes the case and transfers it to a tribunal – normally a panel with three judges – that will preside over the trial, known as the “oral phase” of the case. Under Spanish criminal law, no defendant can be tried in absentia.
INTERNATIONAL CRIMES TRIED IN SPAIN
In 1985 Spain passed an Organic Law that defined the jurisdiction of Spanish courts in criminal cases. The law gave Spanish courts jurisdiction in several kinds of cases, such as when the criminal act took place on Spanish soil or when the perpetrator of the crime is of Spanish nationality.
Additionally, the new law gave Spanish courts jurisdiction over cases related to a particular type of international crimes – ones that are of international concern – regardless of the nationality of the perpetrator or where the crime took place. This section of the law incorporates the principle of “universal jurisdiction” – the principle that certain crimes are so egregious that they are offenses against the entire world and can therefore be tried in the national courts of any country. Some of these crimes were listed in the law, including genocide, terrorism and piracy. A residual clause also grants jurisdiction for “any other [criminal act] which, according to international covenants and treaties, should be prosecuted in Spain.” It has been argued that this residual clause incorporates the offenses of torture and crimes against humanity.
The principle of universal jurisdiction is not particular to Spain. International treaties, including the Geneva Conventions and the Convention Against Torture, permit and, in some cases, require nations to prosecute perpetrators of egregious human rights abuses even if those nations have no connection to the crimes. Until recently however, the principle of universal jurisdiction was largely aspirational, an ideal discernible in bodies of international law, but lacking in concrete precedent.
This changed dramatically in 1996, when instructing judges from the SNC invoked the new Spanish law to begin investigating human rights cases arising from the ‘Dirty War’ era in Argentina and Pinochet dictatorship in Chile. The Argentine cases involved the investigation of some 100 suspects. The Chilean cases focused on former dictator Augusto Pinochet and his subordinates. The case against Pinochet in Spain, and his arrest in England based on an extradition request from Spain, launched the modern concept of universal jurisdiction and opened the door to the exercise of universal jurisdiction over human rights crimes by national courts.