CJA and APDHE jointly filed the case as popular prosecutors. Unlike the U.S., where criminal charges are initiated by the government, Spanish law allows ordinary citizens and non-government organizations to initiate criminal actions by filing criminal complaints as popular prosecutors.
A. Charges
The complaint alleges crimes against humanity, state terrorism and the separate crime of the cover up of crimes against humanity. Spanish law provides for universal jurisdiction on all of these crimes.
1. Crimes against Humanity
The Spanish Penal Code provides courts with jurisdiction over crimes against humanity in Book II, Title XXIV, Chapter I, article 607. This new article was created by Organic Law 15/2003. The language of the statute is taken directly from Article 7 of the Rome Statute. When, as in this case, the crime against humanity results in the death of the victim(s), it is punishable by 15-20 years in jail.
a) Murder
The Spanish Penal Code provides jurisdiction over murder in Book II, Title I, article 138. Article 139 states that when the murder is premeditated the punishment will be increased to 15-20 years in prison. Under the Code, a murder is premeditated when 1) it derives from the existence of a plan to commit the crime; 2) all of the people involved have knowledge of the plan; and, 3) the victims could not reasonably expect the attack (the “surprise” element).
2. State Terrorism
The Spanish Penal Code provides jurisdiction over terrorism in article 571 of the current Penal Code and article 174 bis b) of the 1973 Penal Code that establish that will be responsible for State terrorism those who cooperate with an armed groups with the intention to subvert the power of the State or seriously alter the general peace.
3. Cover-up of Crimes Against Humanity
The Spanish Penal Code provides jurisdiction over the cover up of a crime in art. 451.3 of the current Penal Code even when the defendant did not directly participated in the crime, when he/she helped those responsible to avoid the investigation from the authorities or to be found or arrested for the crime if the actual crime is a crime against humanity or a crime against persons protected in case of an armed conflict (war crimes) and terrorism. This last provision was incorporated by Organic Law 15/2005 November 25 that adapted the Spanish Penal Code to the Rome Statute.
B. Theories of Liability
The complaint charges direct liability, command responsibility, accomplice liability and joint criminal enterprise.
C. Jurisdiction
In 1985 Spain approved an Organic Law establishing the operational rules of its Courts and Tribunals. Article 23 of the 1985 Law generally establishes the rules of jurisdiction of Spanish courts in criminal cases. The law incorporates several types of jurisdiction. The first principle of “territoriality” allows Spanish courts to exercise jurisdiction when the criminal act took place on Spanish soil. A second principle of “personality” gives jurisdiction when the perpetrator of the crime is Spanish. The law also recognizes jurisdiction under the principle of “protection of national integrity” regardless of who committed the crime.
Spanish courts also have jurisdiction over cases regarding particular crimes. This principle takes into consideration the nature of the crime and the international obligation of the states to prosecute it, regardless of who committed the crime and where the crime occurred. Some of those crimes are specified in the law (genocide, terrorism, piracy). In subsection (g), article 23 also recognizes universal jurisdiction for “any other [criminal act] which, according to international covenants and treaties, should be prosecuted in Spain.”
Under the authority of article 23.4(g), investigating judges in Spain initiated in 1996 universal jurisdiction cases arising out of Chile and Argentina. The Argentine cases involved an investigation into approximately 100 suspects. The Chilean cases focused on General Pinochet and his subordinates. Since that time, many other cases have been initiated, including the Guatemala Genocide Case where CJA is lead counsel.
D. Venue
1. Spanish National Court
The Spanish National Court (SNC) is located in Madrid and has jurisdiction throughout the whole country. The SNC criminal section has jurisdiction over (1) cases relating to more than one province; (2) serious monetary and drug trafficking cases; and, (3) serious crimes committed outside the country when, according to the laws and international treaties, Spanish courts have jurisdiction to prosecute them. A recent Organic Law also gives the SNC jurisdiction over the execution of European arrest warrants and requests for extradition.
2. Procedure
The criminal division is made up of six chambers. An instructing or investigative judge preside each chamber. After accepting the case, the investigative judge undertakes the investigation that can take anywhere between 30 days to several years.
After the instruction phase is concluded, the instructing judge closes and transfers the case to a tribunal, a panel of three judges, who presides the trial or oral phase. Under Spanish criminal law, no defendant can be tried in absentia.
