Equipo Nizkor - Decision of the Spanish Supreme Court concerning the Guatemala Genocide Case.

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Decision of the Spanish Supreme Court concerning the Guatemala Genocide Case

SPANISH SUPREME COURT: GUATEMALA GENOCIDE CASE (*)
[February 25,2003]
Spanish Supreme Court
Decision of the Supreme Court concerning the Guatemala Genocide Case
Supreme Court
Criminal Division
Decision No. 327/2003
Appeal for an annulment of judgment No. 803/2001
Case assigned: 15/07/2002
Date of decision: 25/02/2003

Judge Luis-Román Puerta Luis; Judge Enrique Bacigalupo Zapater; Judge Joaquín Delgado García; Judge José Antonio Martín Pallín; Judge Carlos Granados Pérez; Judge Cándido Conde-Pumpido Tourón; Judge José Antonio Marañon Chávarri; Judge Joaquín Giménez García; Judge Andrés Martínez Arrieta; Judge Juan Saavedra Ruiz; Judge Julián Sánchez Melgar; Judge Perfecto Andrés Ibáñez; Judge José Ramón Soriano Soriano; Judge Miguel Colmenero Menéndez de Luarca; Judge José Manuel Maza Martín
In the name of the King
The Second Criminal Chamber of the Supreme Court, constituted by the distinguished judges mentioned above, in the exercise of jurisdiction granted by the Constitution and the people of Spain, has entered the following
Decision.

In the City of Madrid, February twenty-fifth of 2003.
On the appeal for an annulment of judgment for violation of the law and principIes of the Constitution, which is pending before us, brought by the Association Argentina Pro-Derechos Humanos - Madrid, Rigoberta Menchú Tum and others, the Union of Labor Committees, the Free Association of Attorneys, Association Against Torture, D'Amistiada Amb el Poble of Guatemala, Association of the Center for Documentation and Solidarity of Latin America and Africa, International Solidarity Commission of Zaragoza and the Association for Human Rights of Spain, against said decision issued by the Audiencia Nacional, Criminal Chamber, dated December 13, 2000, which decided on the request for appeal brought by the Public Prosecutor concerning the decision to dismiss his petition for amendment of the decision by the Central Court number one finding jurisdiction over the alleged crime of genocide by certain persons of the Guatemalan government, the distinguished judges of the Second Division of the Supreme Court mentioned above have been convened for the hearing under the President of the first of those cited and the judgment of Judge Colmenero Menéndez de Luarca, the parties mentioned above are represented by Prosecutors Ms. Cañedo Vega, Rincón Mayoral, Calvo Villoria and Gutiérrez Carrillo.

I. Prior history

First. The Central Court of Investigation number 5 issued a decision on the twenty -seventh of March of 2000 in which it found jurisdiction over the acts subject of the complaints number 331/99 dismissing the petition on the record of proceedings which had been formulated with respect to the complaints presented. The Public Prosecutor brought a petition to amend said judgment. Afterwards the Central Court of lnvestigation number 5 issued a decision on April 27, 2000 in which it dismissed the petition for appeal brought by the Public Prosecutor, and on December 13, 2000, the Criminal Chamber of the Audiencia Nacional granted the Public Prosecutor's petition, thereby holding that Spain could not exercise criminal jurisdiction over the prosecution of such acts. This decision of the Criminal Chamber of the Audiencia Nacional contains the following conclusion:
"The Criminal Chamber: 1º. Upholds the petition for appeal brought by the Public Prosecutor against the decision of the Central Court of Investigation nº 1 dated 27.04.2000 dismissing the petition for amendment of the judgment of 27.03.2000 which held that the Central Court of Investigation number one had jurisdiction over the matters presented in the complaint, and as a consequence we hold that, at the present time, Spain will not exercise criminal jurisdiction over the prosecution of the above-mentioned acts, and that the criminal judge of first instance should record the actions as lacking jurisdiction. Cost are determined as requested." (sic)

Third. |1| The parties having been notified of the decision, an appeal for annulment of the judgment for violation of the law and principIes of the Constitution, prepared by the representatives of the Association Argentina for Human Rights-Madrid, Rigoberta Menchú Tum and others, the Union of Labor Commissions, the Free Association of Attorneys, The Association Against Torture, D'Amistidia Amb Poble Poble de Guatemala, the Association for the Center of Documentation and Solidarity between Latin America and Africa, and the Committee of lnternational Solidarity of Zaragoza and the Association for Human Rights of Spain, was announced and the necessary certifications for its standing and resolution were sent to this Division of the Supreme Court, forming the corresponding record and the present appeal.
Fourth. The appeal, initiated by the representative of Rigoberta Menchu Tum, Silvia Solórzano Foppa, Silvia Julieta Solórzano Foppa, Santiago Solórzano Ureta, Julio Alfonso Solórzano Foppa, Lorenzo Villanueva Villanueva, Juliana Villanueva Villanueva, Lorenzo Jesús Villanueva lmizocz, Ana María Gran Cirera, Jose Narciso Picas Vila, Aura Elena Farfan, Adriana Portillo, Rosario Pu Gómez, Julio Arango Escobar, Prosecutor of Human Rights in Guatemala, Arcadio Alonso Fernández, Conavigua, Famdegua and Ana Lucrecia Molina Theissen, was brought on the following grounds:

Pursuant to Article 849.1 of the Law of criminal Procedure, for violation flaw, for failure to apply of Article 23.2 in relation to Articles 23.4 and 23.5 of the Judicial Power Organization Act.

Pursuant to Article 849.1 of the Law of Criminal Procedure, for violation of law, for failure to apply Article 23.2 in relation to Articles 23.4 and 23.5 of the Judicial Power Organization Act.

Pursuant to Article 849.1, violation flaw, for failure to apply Article 23.2(c) in relation to Articles 23.4 and 23.5 of the Judicial Power Organization Act.

Pursuant to Article 849.2 for error in its consideration of evidence based on documents presented in the records.

Pursuant to Article 5.4 of the of the Judicial Power Organization Act, for having impaired the right to obtain effective judicial protection by judges and Courts, pursuant to the exercise of legitimate rights and interests, resulting in the lack of defense, in conformity with Article 24.1 of Spain's Constitution.

Fifth. The appeal lodged by the representative of the appellant, Association Argentina for Human Rights- Madrid was based on the following ground for appeal:

It is argued pursuant to Article 849.1 of the Law of Criminal Procedure and based on its violation for the failure to apply Article 23.4(a) and (b) of the Judicial Power Organization Act in relation to the provisions of Articles 23.5 and 23.2(c) of the same legal text, and pursuant to Article 5.4 of the Judicial Power Organization Act to the extent that said violation interferes with the right to effective judicial protection set forth in Article 24.1 of the Constitution.

Sixth. The appeal lodged by the representative of the appellant Union of Labor Commissions was based on the following grounds for appeal:

Pursuant to the provisions of Article 5.4 of the Judicial Power Organization Act, for having impaired the right to obtain effective judicial protection from judges and Courts in the exercise of their legitimate rights and interests, without which, no case may be successfully brought (Article 24.1 of the Constitution of Spain).

Pursuant to the provisions of Article 849.2 of the Law of Criminal Procedure. Error in its consideration of evidence.

Pursuant to Article 849.1 of the L.J.C.R. for violation of the Law, in view of the failure to apply Article 23 in respect of Articles 23.4 and 23.5 of the Judicial Power Organization Act of 1985.

Pursuant to Article 849.1 of the Law of Criminal Procedure, for violation of Law, it is considered the failure to apply Article 23.2 in respect of Articles 23.4 and 23.5 of the Judicial Power Organization Act. The reason is based on the misapplication of Article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide in relation to Article 23.4 of the Judicial Power Organization Act and customary international law.

Pursuant to Article 849.1 of the Law of Criminal Procedure, for violation of Law, considering the failure to apply Article 23.2 in relation to Articles 23.4 and 23.5 of the Judicial Power Organization Act. This reasoning is based on the misapplication of Article 17 and following Articles of the Rome Statute of the lnternational Criminal Court, in addition to its relation to Article 23.4 of the Judicial Power Organization Act and customary international law.

Pursuant to Article 849.1, for violation of law, for failure to apply Article 23.2(c) in respect of Articles 23.4 and 23.5 of the Judicial Power Organization Act.

Seventh. The appeal lodged by the representative of the appellant Free Association of Attorneys was based on the following grounds for appeal for an annulment of judgment:

Pursuant to the provisions of Article 5.4 of the Judicial Power Organization Act in relation to Article 24.2 of the Spanish Constitution.

Pursuant to the provisions of Article 849.2 of the Law of Criminal Procedure.

Pursuant to the provisions of Article 849.1 of the Law of Criminal Procedure, for failure to apply Article 23.2(c) of the Judicial Power Organization Act in relation to Articles 23.4 and 23.5 of the same text.

Eighth. The appeal lodged by the representative of the appellants: The Association against Torture, the Association D'Amistada amb el Poble de Guatemala, the Association Center for Documentation and Solidarity between Latin America and Africa and the Commission of International Solidarity of Zaragoza, in addition to supporting the grounds of appeal of the other appellants, was based on the following grounds of appeal for the annulment of judgment:

Pursuant to Article 849.2 of the Law of Criminal Procedure, error in the admission of evidence.

Pursuant to Article 5.4 of the Judicial Power Organization Act, for violation of Article 24.2 of the Spanish Constitution.

Ninth. The appeal lodged by the representative of the appellant, Association for Human Rights in Spain was based on the following grounds for appeal for an annulment of judgment:

Pursuant to section 10 of Article 849 of the Law of Criminal Procedure, for violation of the substantive norm which should be observed in the application of criminal law, as is the concept of Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Article 23.4 of the Judicial Power Organization Act, which refers to obligations regarding sentencing.

Pursuant to Article 5.4 of the Judicial Power Organization Act in relation to Article 24.1 of the Constitution, for violating the right to obtain effective judicial protection, resulting in the lack of a defense.

Tenth. Having been instructed as to the appeals for annulment of judgment, the Public Prosecutor challenged them; leaving the cases as assigned for a hearing at their corresponding time.
Eleventh. The assignment for hearing having been completed, said act took place on July 15,2002.
Twelfth. By a ruling of July 17, 2002, it was agreed to allow an indefinite extension of the time in which the sentence would be released, which was communicated to the parties.

II. Basis in Law

FIRST. In accordance with the foregoing we should respond to the initial allegation of the Public Prosecutor, who argues that no appeal should be allowed in respect of the judgment of the en banc session of the Criminal Chamber of the Audiencia Nacional. The examination of the prior record shows that, the initial complaint having been presented and the preliminary proceedings having been filed, the Criminal Court of Investigation transferred the case to the Public Prosecutor in order that he issue an opinion on jurisdiction. The Public Prosecutor issued the corresponding report and held that Spanish courts did not have jurisdiction over the acts charged in the complaint, having occurred outside national territory, for the reasons that were adduced in the cited report. The Criminal Court decided in favor of jurisdiction. The Public Prosecutor brought a petition for amendment, which was dismissed, then interposed an appeal, which was decided by the en banc session of the Criminal Chamber of the Audiencia Nacional, holding that Spanish Courts were without jurisdiction, having not fulfilled, at the present time, the necessary requirements. An appeal for annulment of this judgment was then brought.
In the first place, it is necessary to correctly identify the question presented. The acts that were initially subject of the complaint took place in Guatemala on certain dates between 1978 and 1990, and have been qualified by the claimants as constituting crimes of genocide, terrorism and torture. The Judgment on appeal holds that "the exercise of Spanish criminal jurisdiction over the prosecution of said crimes will not proceed at this moment, and that the criminal judge of first instance should file the preliminary proceedings as lacking jurisdiction." At issue is not the inadmissibility of a complaint properly stated for lack of jurisdiction of the Judge before whom the complaint was presented. Nor are we presented with a judgment of absolute dismissal or provisional dismissal. The setting aside of the proceedings which is the subject of the present challenge is not based on any of the reasons provided for in Articles 637 and 641 of the Law of Criminal Procedure, rather it is more of a consequence of the finding that Spanish courts lack jurisdiction. What has been presented is the question of the reach and interpretation of the applicable provisions for determining whether acts that have occurred in the territory of another country, subject to the sovereignty of another State, and for that reason, do not fall under the effects of the general principle of territoriality of Spanish criminal law, may be judged in Spain.
Jurisdiction is one of the means of expressing the sovereignty of a State. It is understood as the ability or power to judge, namely, to exercise one of the powers of the State over certain persons and in relation to certain acts, submitting them, in the case of criminal law, to the ius puniendi attributed to it by law. In this regard it precedes competence and should not be confused with it. The determination of competence assumes the attribution of a certain class of matters over other matters to certain judicial bodies, where jurisdiction has already been recognized.
The law expressly regulates certain supposed conflicts of jurisdiction. Conflicts of jurisdiction may arise between diverse judicial bodies; between courts of ordinary jurisdiction and military courts, and between jurisdictional courts and administrative courts. The first ones, called conflicts of competence under Article 42 of the Judicial Power Organization Act, are resolved by a special division of the Supreme Court. The second, are resolved by the Division of Conflicts of Jurisdiction presided by the President of the Supreme Court and formed by justices of this Supreme Court (Article 39 of the Judicial Power Organization Act). And those cited in the third place are resolved by the Court of Conflicts of Jurisdiction, presided by the President of the Supreme Court and formed by justices of this Court and by permanent counsel of the State (Article 38 of the Judicial Power Organization Act and Law 2/1987, of May 18, Conflicts of Jurisdiction).
The regulation that determines the competent body for the resolution of these questions, brings to light the fact that when one tries to determine the scope of jurisdiction, as much between different jurisdictional rulings as well as between ordinary and miliary jurisdiction as well as between courts and administrative Courts, the decision is of the highest order.
The issue ruled upon in the challenged decision does not place into question the jurisdiction of the different judicial bodies mentioned above, but rather, the issue has been presented pursuant to Article 9.6 of the Judicial Power Organization Act. Under this principle, in addition to affirming the concept that criminal jurisdiction is never susceptible to prorogation, as already established in terms of criminal jurisdiction in Article 8 of the Law of Criminal Procedure, requires that the judicial bodies examine the case for lack of jurisdiction, ruling on the question following a hearing with the Prosecutor and the parties and issuing a jurisdictional ruling.
It should also be emphasized that, having taken into account the nature of the issue presented, it will not result in an authentic controversy between judicial organs regarding the ability to exercise jurisdiction over the acts denounced in the complaint, since to some extent we have already come to recognize in the ruling of this Court nº260/1998 of January 21, that today it is not juridically viable to place a question of competence before a foreign court given that no mechanism exists or supranational court for either the positive or negative resolution of the eventual conflict. In this manner, in regard to the ruling denying jurisdiction of Spanish courts, which is the subject of the present appeal, one cannot expect to raise a negative conflict with another court, for what will be adopted in the ruling will resolve the issue completely.
At issue, therefore, in an exceptional case, not expressly regulated by the Legislature, which transcends the question of competence between domestic judicial bodies and which is distinct from the conflicts mentioned above regarding the scope of power of the Spanish State. Here the Judicial Power over certain crimes committed under the sovereignty of another State has a definite character and does not allow for finding a negative jurisdictional conflict.
Article 848 of the Law of Criminal Procedure provides that an appeal for annulment of judgment may only proceed in regard to decisions finally decided by Audiencias Provinciales and only for violation flaw in this case as expressly authorized. In the second paragraph of this same Article it is provided that decisions of dismissal will only be considered definite if the dismissal was absolute, in the understanding that procedural criminal findings are not definitive of the crime and that someone may be found guilty of the same.
Nor the Judicial Power Organization Act nor the Law of Criminal Procedure specifically establish appeals that may be made against a decision adopted under Article 9.6 of the former, nor concretely provide for an appeal for the annulment of a judgment. The exceptional nature and special importance of the issue to the extent that it affects the extension of the jurisdiction of Spanish Courts renders it reasonable for the Supreme Court, as the supreme jurisdictional body of all others, to render the final decision, except for that which is set forth with respect to constitutional guarantees (Article 123.1 of the Constitution).
Nonetheless, we can note that rather than dealing with the position of a Court of first instance which definitively finds a lack of jurisdiction, without having the possibility of a conflict of jurisdiction raised later that would allow the decision to be resolved by a superior judicial body, the adopted decision is comparable to the decision to find jurisdiction over a dismissal provided in Article 676 of the Law of Criminal Procedure, that this court has interpreted since the agreement adopted in the non-jurisdictional en banc session on May 8, 1998, applied among others between STS on July 6, 1998, with the idea of allowing an appeal for an annulment of judgment to go forth except in the cases filed under the arrangement of the Law Regulating Juries.
For the decisions set forth we must dismiss the initial complaint of the Public Prosecutor and proceed to the merits of the case.
SECOND. We examine the appeals with attention to the content of the various reasons which were set aside in the order now on appeal. The appeals address three fundamental issues which present distinct questions: the violation of the law on effective judicial protection; error of fact in the consideration of evidence; and, finally, violation of the law of Article 849.1 of the Law of Criminal Procedure.
Several appellants denounce the violation of the right of effective judicial protection, which, as they understand, has resulted in a lack of defense specifically prohibited by Article 24.2 of the Constitution. The representative of the Union of Labor Committees argues that such violation has resulted in the Audiencia Nacional's consideration of the appeal for amendment of the Public Prosecutor based on arguments not presented by the appellant. The representative also claims that the decision to dismiss the claim for lack of jurisdiction resulted in a violation of the right to judicial protection. The representative further argues that the court has required the claimants to present proof of abstract and otherwise intangible evidence, such as the present and future inactivity of the Guatemalan judicial system, without providing a point at which such requirement would meet the criteria for the subsidiary application of universal jurisdiction by Spanish criminal courts.
The appellants also refer to the violation of judicial protection, in terms of the fifth charge in the appeal of Rigoberta Menchú and others, basing the argument on the fact that the en banc hearing of the Criminal Chamber of the Audiencia Nacional did not take into account the arguments of the Public Prosecutor in its appeal, but rather based its decision on a new argument, given that at no point was the inactivity of the Guatemalan justice system alleged, and the use of this argument as a basis of its decision resulted in the denial of a defense. On the other hand, the appellant considers that such inactivity has been adequately proven by the briefs in which such inactivity is cited.
The Free Association of Attorneys limits its first claim to that argument of the rest of the plaintiffs. The Association against Torture, in its second argument, alleges that the Chamber's reliance on a new argument in its reasoning resulted in a violation of the fundamental right to judicial protection. And the Association for Human Rights in Spain, in its second argument, claims that the interpretation of Article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide, by the en banc session of the Chamber, results in the denial of judicial protection as a denial of a right of access courts, and finds that the Chamber's reasoning in this regard was erroneous.
In regard to what is referred to as effective judicial protection, what such fundamental right consists of in its entirety is the right of access to judicial bodies and the right to obtain a decision founded on reasoning which answers the question presented and on law which, once pronounced as a judgment, obtains the full effect of its pronouncement. (Cfr. Judgments of TC 32/1982; 26/1983, of April 13; 90/1983 of November 7; 89/1985, of July 19; 93/1990 of May 23; 96/1991 of May 9; 7/1992 of March 30, among others).
Therefore, it is said in the STS 14/05/98 that the right to judicial protection includes the right to obtain a reasoned decision (Judgment of the Supreme Court of April 26, 1995) as has been observed by the Constitutional Court as well (Judgments 36/1989, of February 14; 14/1991, of January 28th; 122/1991, of June 3rd; 13/1987, of February 5th) reasoning which avoids an arbitrary resolution, which makes clear to the parties what the logical, factual and legal basis of the judgment is, allowing for the possibility of challenging the decision by means of appeal. Judicial resolutions are not merely expressions at will but rather the result of the reasonable application of legal norms, which require reasoning which, although perhaps succinct, provides an adequate answer based on law to the question presented and decided. This does not assume, nonetheless, the right to obtain a favorable decision to the claim presented before a judicial body, for it is common that Courts have to decide between claims that are in themselves contradictory.
The challenged decision contains reasoning that although may not be shared, on this reason alone, may not be marked as a decision based on nonexistent or arbitrary reasoning. Its internal correction may be discussed by means of the reasons for violation of law, but the acceptance of the criteria on the merits which results in the filing of the criminal proceeding does not assume a prohibited denial of judicial protection, for according to the position of the claimants regarding the judicial proceedings in sentencing and judgment of certain facts, it was decided based on reasons that the judicial proceedings should not continue.
The appellants similarly claim that the use of an argument not employed by the parties results in the denial of a defense. Such argument cannot be sustained. The positions of the parties, in agreement on some aspects of the activity of a judicial body, delimits the purpose of the procedure, in a way that the judicial decision should be constituted within the established limits in this manner. In this way the effective principle of prosecution provides that no one may be sentenced for something for which he has not been accused and for which he has not had the possibility of defending himself, which implies the existence of a link between the Court and the facts and the legal grounds, in such a way that produces a correlation between the accusation and the sentence. It is a link of a relative character, since the Court may dispose with facts that it does not consider as sufficiently established, it may add other facts beneficial for the accused even in the event that such facts have not been presented, and may sentence the accused for a distinct crime as long as it is a similar crime that is not more serious than that which was in the indictment.
This link, in terms of the parties' claims, does not affect, nonetheless, the legal arguments employed in order to defend them. The precision of the applicable law and the determination of the pertinent criteria for its interpretation and application to the real case is a task that belongs to the judicial body in the nature of exclusive jurisdiction, Article 117.3 of the Constitution, a nature that cannot be compelled according to the opinion of the parties such that the parties' exclusion of certain arguments results in preventing the Court from choosing legal criteria which in its view it deems correct.
In the interpretation and application of the Law, the Court does not proceed as conditioned in any way according to the list of arguments employed by the parties, for this could lead to the absurd by obliging the judicial body constitutionally in charge of the judgment according to the law, to hold as relevant the arguments or interpretations that it considers incorrect, which would produce an unconstitutional displacement of power in favor of the parties in respect of the essential function of judgment.
Moreover, in certain occasions, as occurs in the instant case, the disposition of the issue presented allows the Court to override even the issues presented by the parties. In its determination of the limits of jurisdiction, the Court is not strictly bound by the distinct options argued, but rather it should apply the law in order to provide a solution which it understands as correct.
In regard to the alleged denial of justice which, as argued by the appellants, has been the result of the decision of the Chamber of the Criminal Court of the Audiencia Nacional, it is an argument that cannot be sustained. Doing so would mean establishing the need to affirmatively respond to the arguments presented by a party, in this case with respect to the existence of the right of Spanish courts to intervene. As explained above, the idea that one must be wholly satisfied with a judgment, when it turns out differently from the relief sought by a party, does not form part of the law of effective judicial protection.
The arguments are dismissed.
FOURTH. |2| Under the second argument of the appeal of the Union of Labor Commissions; in the fourth argument of the appeal of Rigoberta Menchú and others; in the second argument of the Free Association of Attorneys, and in the first argument of the Association against Torture and others, it is claimed that there was in error in the consideration of evidence based on documents produced in briefs and which clearly demonstrate inactivity on the part of the Guatemalan justice system. They claim that said inactivity, evidenced by the documents provided and by proof that the judicial authorities in Guatemala have not acted in order to clarify the facts, ought to be sufficient in order to maintain effective the principle of universal jurisdiction. The documents in question are the very reports mentioned above to the extent that they refer to certain disappearances or deaths which were not investigated by the legal authorities; the documentation produced in respect of this cause regarding the facts which occurred in the Embassy of Spain, which gave rise to reports that were filed 36 days later, without any action taken in order to clarify the facts and to judge those responsible; the reports of the Historical Clarification Commission (CEH) and the report on the Recovery of Historical Memory (REMHI) regarding the role played by the Guatemalan justice system taking into account the date of the commission of the acts and not the date of the publication of the CEH reporto In this report, as interpreted by the Union of Labor Commissions, it is concluded that "during the years of the armed conflict, the inability of the Guatemalan State to provide answers to the legitimate demands and social vindication resulted in the formation of an intricate network of similar tools of repression planted by the judicial acts of the courts, usurping their functions and prerogatives. A system of illegal and underground punishment was established, orchestrated and directed by the organizational bodies of the Military Intelligence." "The judicial system of the country, as a result of its ineffectiveness, either provoked or deliberate, did not guarantee compliance with the law, tolerating and even carrying out violence. For omission or deliberate action, the judicial powers contributed to aggravating social conflict at different moments in Guatemala's history. Impunity permeated to the point of taking power within the very structure of the Guatemalan state, and converted into a means as much as an end. As a means, it sheltered and protected the repressive acts of the State as well as the details of its purposes, meanwhile, as an end, it was a consequence of the methods applied in order to repress and eliminate political and social adversaries." Other documentation referred to includes the report of MINGUA nº11 of September 2000, in regard to the period between January 1999 and June 30, 2000 and other reports of the Inter American Human Rights Commission.
In addition, they cite the legislation of Guatemala which obliges the Public Prosecutor to investigate this class of criminal acts.
We have noted, among several others, in the STS n° 675/2001, of April 20 that, in order for this argument to succeed, the documents referred to "must consist of actual documentary proof and not some other class of proof, even if they are taken into consideration; normally of an extrinsic origin, that said documents directly verify, without the need to reference other probative means or complex deductions, the error that is alleged, what is called "literosufficiency" of such documents; that the error claimed have an extremely relevant legal effect; and that in the case other contradictory probatory elements do not exist (STS, among several, 5-10-2000)." To that one must add relevance in order for the judgment to hold as error that which is claimed.
The application of this doctrine, in the first place, leads directly to denying the documentary nature of the above cited reports such as they have been designated, for in addition to consisting of documentation regarding criminal procedure in itself and not of an external origin to it, it cannot be sufficiently considered, in any case, for the purposes of verifying an error of the Court, a general designation of the documentation, when Article 855 of the Law of Criminal Procedure requires the designation of concrete facts which evidence an error, for it is precisely these facts and not others that must be alleged in the statement of facts for judicial resolution.
The rest of the designated documents verify that those who signed them made a certain oath, but do not in reality have this character in terms of the truth of what they are affirming, for in this regard what is present is the making of opinion, without a doubt highly documented by its authors with respect to concrete events, as a result of an investigation of those events. As argued by the Public Prosecutor, its content refers to a former moment in history, meanwhile the oaths contained in the brief refer to the current justice system in Guatemala, with no apparent error in addressing different situations.
In any event, although when Article 848 of the Law of Criminal Procedure refers to the possibility of appeal for annulment of judgment on the sole grounds of violation of the Judicial Power Organization Act and of Article 849.2 º, it includes in this class of appeal the grounds for error in the admission of evidence, in reality the reference should only be understood as a current violation of law.
Without prejudice to the above mentioned considerations, as noted by the Public Prosecutor, the decision challenged here consists of a ruling which lacks any determination as to evidentiary facts, for this reason it is not possible to allege error in the consideration of evidence when such evidence has not really been prepared in accordance with the rules governing its production, and therefore there has been no occasion for submitting it for consideration which would result in a decision on evidentiary facts.
This reason for dismissing such grounds nevertheless does not prevent, as may be anticipated, the parties from having their arguments evaluated on appeal to the extent that they cite the activity or inactivity of the Guatemalan justice system in relation to the acts alleged, which must be established in accordance with the evidentiary requirement that there be sufficient proof in order to result in a finding of inactivity, an evidentiary principle which led the Criminal Chamber of the Audiencia Nacional to hold that "there has been no showing that the State of the territory in question rejected the ( . . . ) complaint and additional claims presented before the Central Court of Instruction nº 1."
The grounds are dismissed.
FIFTH. As to the different grounds cited on appeal by the parties for violation of Article 849.1º of the Law of Criminal Procedure, they may be summarized as three different issues, although each is related to the misapplication of the principle of subsidiarity, which in their opinion, derives from a violation of the provision of Article 23.4 of the Judicial Power Organization Act. In the first place, they believe that an incorrect interpretation of Article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide has been made, resulting in the application of a principle of subsidiary jurisdiction which is distinct from the subsidiarity principle applied to the jurisdiction of the International Criminal Court vis-à-vis the tribunals in the place of occurrence. Second place, they argue that the Audiencia Nacional misapplied Article 17 of the Statute of the International Criminal Court, which has produced a similar result. And third, they argue that, in the event that the subsidiarity principle were viable, the legislation of Guatemala prevents justice from being carried out in this country with respect to the acts alleged, and that this impediment justifies the case proceeding in Spanish courts.
Finally they argue that the Convention on the Prevention and Punishment of the Crime of Genocide establishes no such principle of subsidiarity, but rather a principle of universal jurisdiction, which, in accordance with Article 23.4 of the Judicial Power Organization Act, determines the jurisdiction of Spanish courts over acts alleged to constitute the crime of genocide.
It is without a doubt that the acts, such as they are described in the complaints and in the present proceedings, constitute true atrocities committed by one group of human beings against others, which, as explained eloquently in the Preamble to the Statute of the International Criminal Court, defy the imagination and profoundly disturb the human conscience. This drives us to affirm, once again, that the international community of States should not remain impassive before events of this nature which constitute crimes of international law and that the adoption of decisions aimed at avoiding impunity should be taken by international legal bodies according to the form, means and time period possible, without prejudice to the proceedings which, according to laws and Treaties, correspond to each particular State.
It should be clarified that the purpose of our ruling is to determine the existence of extraterritorial jurisdiction of Spanish courts over the acts denounced, and not only to evaluate the criteria used by the Criminal Chamber of the Audiencia Nacional in the decision now on appeal.
In this matter, the decision of the Court is not conditioned by the submissions of the appealing parties, whose claim that a more restrictive application of the law than that of the challenged ruling cannot be made fails. Nor by the limits derived from the criteria employed by the judicial body whose decision is on appeal. The extension of jurisdiction depends only on the law, and once the issue is presented, the Court must apply its provisions, without conceding jurisdiction to the parties when it is lacking and without denying jurisdiction when the law provides for it. Moreover the doctrine prohibiting reformatio in peius does not apply to this matter.
SIXTH. The decision on appeal treats the principle of subsidiarity as a limit on the principle of universal jurisdiction, with the result that Spanish jurisdiction over the prosecution of genocide committed in a foreign country may only be justified as a default to tribunals initially competent according to the Convention, namely, those tribunals in the State in whose territory the act was committed or an international criminal tribunal which has jurisdiction vis-a-vis the contracting parties who have recognized its jurisdiction. Such criminal court has not been established in respect of the acts alleged to have occurred in Guatemala, nor would the International Criminal Court have jurisdiction, in accordance with Article 11 of the Rome Statute.
The appellants allege that there has been an erroneous interpretation of Article 6 of the Convention and Article 17 of the Statute of the International Criminal Court, given that from these instruments a principle of subsidiary jurisdiction cannot be deduced.
The Convention does not establish universal jurisdiction, nor does it exclude it. Nor does it exclude other criteria. If the possibility that more than one national jurisdiction may intervene is recognized, given the various criteria of jurisdiction, some sort of priority criteria will be necessary, directed at resolving the supposed effective and real concurrence of active jurisdiction, in a manner that considers it natural that those courts in the place of commission of the act exclude jurisdiction of courts of another State.
In terms of the current laws in force in Guatemala, we do not find a legislative impediment or obstacle which prevents the prosecution of the acts alleged. The appellants base this alleged obstacle on their interpretation of Guatemalan legislation that they consider applicable to the case. Their argument, apart from other reasons from which this judgment is made, cannot be accepted, for it does not demonstrate that such particular interpretation is exactly the interpretation applied by the courts of Guatemala competent to judge the given facts. Rather, what appears substantially documented is that the National Law on Reconciliation of 1996, ratified in Guatemala following the Peace Accords, expressly excludes amnesty for crimes of genocide. The result is that the position argued by the appellants, which is not found convincing at this point, is based on nothing but their own particular interpretation of the law in force in this country, an interpretation that cannot be substituted for the one made by courts in interpreting their own country's legislation.
In any case, the criteria of subsidiarity, in addition to the fact that it is not recognized either expressly or implicitly in the Convention on the Prevention and Punishment of the Crime of Genocide, does not result satisfactory due to the manner in which it was applied by the court in the first instance. To determine when to intervene subsidiarily for the prosecution of certain acts, basing such decision on either real or apparent inactivity on the part of the courts of another sovereign State implies judgment by one sovereign State on the judicial capacity of similar judicial bodies in another sovereign State.
First, the present case is one of a sovereign State with which Spain maintains normal diplomatic relations. A declaration of this nature, which has the potential of extraordinary importance in terms of international relations, does not belong to the judicial bodies of a State. Article 97 of the Spanish Constitution provides that the Government directs foreign affairs, and one should not ignore the potential repercussions of such a declaration by the judiciary in this area.
On the other hand, Article VIII of the Convention on the Prevention and Punishment of the Crime of Genocide determines the procedure to be followed by the Contracting Parties in these cases. This Article provides that "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the acts enumerated in Article III," a provision that renders effective the jurisdiction of Spanish judicial bodies. Nonetheless, it allows a reaction in the international community aimed at avoiding impunity for this class of conduct.
This is without prejudice to resolutions that may be adopted by the international community on its own initiative. In this regard, the briefs cite various reports of the Commission of the United Nations (MINUGUA), which studies the Guatemalan process in terms of respect and protection of human rights, and which reports on the current difficulties in the country of bringing to light the knowledge of the United Nations regarding such situation. One cannot ignore the impact of these reports, resulting in a response from the United Nations similar to that concerning the cases of Rwanda and ex-Yugoslavia.
SEVENTH. The appellants claim that the acts they denounce constitute the crime of genocide. As only for the purpose of a provisional ruling, and without prejudice to the merits of the case, the acts denounced may be considered as constituting the crime of genocide to the extent that they affected the Mayan people as an ethnic group.
The Convention on the Prevention and Punishment of the Crime of Genocide, of December 9, 1948, which Spain ratified on September 13, 1968 and which was published in the BOE on February 8, 1969. In this Convention, the parties declare that genocide is a crime of international law and promise to prevent and punish genocide. This provision, although it assumes the creation of a norm of international law concerning the crime of genocide, cannot be interpreted according to the understanding of the appellants. Such understanding would be contrary to what was later established in Article 6, which provides that the competent judicial organ over prosecution of such crime will be either a competent tribunal of the State in whose territory the act occurred or an international criminal court. (Those persons accused of genocide or any other of the acts enumerated in Article III, will be judged by a competent tribunal of the State in whose territory the act was committed, or before an international criminal court which has the ability to hear the case over those Contracting Parties who recognize their jurisdiction).
The determination of jurisdiction would not make sense if Article I were to be understood as having consecrated the agreement of the contracting parties to proceed to prosecute and punish regardless of the place of commission. In addition, Article VIII of the Convention, as quoted above, does not authorize each State to initiate jurisdiction pursuant to such principle of universal jurisdiction, but rather provides for another distinct manner in which to respond to this crime outside of its territory, by expressly providing for recourse to the competent organs of the U.N. with the aim that they adopt the appropriate means in each case.
In the execution of this Convention, Spain incorporated the crime of genocide into its criminal legislation, through Law 44/1971 of November 15th, which was then included in the Criminal Code on crimes against humanity. But it did not modify the norms regulating the provisions on extraterritoriality so as to expressly include in them the principle of universal jurisdiction concerning the crime of genocide.
EIGHTH. Nonetheless, as we have already indicated, although the Convention does not expressly provide for universal jurisdiction, it does not prohibit universal jurisdiction either. It would not be correct to interpret its provisions in a manner that would impede the international prosecution of such crime in accordance with other criteria or principles distinct from the territorial principle.
The Judicial Power Organization Act of 6/1985, of July 1st which revoked the previous law of 1870 established in Article 23.4 that Spanish courts will have jurisdiction over acts committed by Spanish nationals or foreign nationals outside the national territory which are capable of being considered under Spanish law as a crime of genocide, among others. Terrorism; piracy and the hijacking of aircraft; foreign counterfeit; crimes related to prostitution and corruption of minors and disabled persons (the last since the Law 11/1999); illegal traffic of mind-altering, toxic drugs; and any other crime which according to international conventions, should be prosecuted in Spain]. Without prejudice to the appreciable differences between certain crimes and others, no particularity is established in regard to extraterritorial jurisdiction.
A provision as general as the one contained in this rule raises certain queries.
In regard to the function of national Spanish tribunals, this article cannot be interpreted in a way that leads to the opening of criminal procedures following notice of the commission of certain acts qualifying as one of the crimes to which it refers, without regard to the place of its commission or the nationality of the criminal or the victim. And nowhere in our criminal law or criminal procedure has the principle of opportunity been established, nor is it incorporated by treaties entered into in this area.
From the other point of view, on a broader scale, one should analyze, in particular, whether the principle of universal jurisdiction can be applied without taking into consideration other principles of public international law. As a general rule, the foresight of Spanish law must make itself compatible with the requirements derived from international law, such as is understood by States.
Jurisdiction is a manifestation of a State's sovereignty, whose initial limitations correspond to such sovereignty, which in many ways is delimited by other States. In this regard, the references to places not subject to any State's sovereignty are not absolutely comparable to those in which jurisdictional intervention affects the acts committed in the territory of another sovereign State.
The extension of extraterritorial criminal jurisdiction, as a result, is justified by the existence of the particular interests of each State, which explains that at present it is without discussion the international recognition of the ability to prosecute those who have committed crimes outside the national territory, on the basis ofthe principle of defense or protection of interests and that of active or passive personality. In these cases it is the establishment of unilateral jurisdiction that has its fundamental understanding and support, although not exclusive, for the necessity of providing protection to these interests by the national State.
When the extraterritorial extension of criminal law has its basis in the nature of the crime, in as much as it affects the legal integrity of the international community, the question of the compatibility between the principle of universal jurisdiction and other principles of public international law is presented.
In this respect, it is necessary to bear in mind, in terms of the doctrine of public international criminal law, that no objection to the principle of universal jurisdiction exists when such jurisdiction derives from a source recognized by international law, especially when such source has been agreed upon by State Parties to a treaty. In such cases it is admitted that the principle is undoubtedly justified. On the other hand, when the principle is only recognized in terms of internal criminal law, in practice, the limits of said principle are set by the application of other principles equally recognized under public international law. In this regard, it has been understood that the exercise of jurisdiction cannot, as has already been said, contravene other principles of public international law nor operate when no point of connection exists between national interests. Both limitations have been expressly accepted by German courts. (See the German Supreme Court, BGHST 27, 30;34, 340; ruling of February 2, 1994 [1 Bgs 100/93]).
For its part, Belgium's Court of Cassation, in its decision on the indictment of Sharon, Ariel; Yaron, Amos and others, although without doubt concerning the particularities of Belgium's internal legislation (Articles 12 and 12bis of the procedural Law of April 17 of 1878), after recognizing that international customary law is opposed to the idea that current heads of State and Government should be judged by foreign tribunals, in the absence of international provisions that oblige the States concerned, has ruled that the exclusion of immunity established in Article IV of the Convention on the Prevention and Punishment of the Crime of Genocide, [Those persons who have committed genocide or any other of the enumerated acts in Article III will be punished, understood that such persons may be government officials], is only applicable in respect to the procedures following before competent courts according to the Convention itself, not reaching the assumptions that the procedure is followed before a court whose jurisdiction is not established by customary international law.
Previously, the International Court of Justice in its decision of February 14, 2002 nullified, on the basis of the violation of the law of diplomatic immunity, the order of for arrest issued by a Belgian judge against the ex-Minister of the Congo pursuant to the exercise of universal jurisdiction under Belgian law.
NINTH. As we indicated previously, today there is significant support in doctrine for the idea that no State may unilaterally establish order through criminal law, against everyone and the entire world, without there being some point of connection which legitimizes the extraterritorial extension of its jurisdiction. Without doubt there exists an international consensus on the need to prosecute these types of acts, but in no agreement between States has there been established unlimited jurisdiction over acts occurring in the territory of another State, having provided, on the contrary, for other solutions.
The question is presented in terms of very particular events, and it cannot be excluded that, in certain circumstances, crimes of international law have been committed in circumstances where the authorities of a State impede their prosecution, or even directly participate in the crimes. In such circumstances, the crimes are committed within the framework of what modern doctrine has identified as structures or machinery of organized powers, which, situated beyond the walls of the law of the State, present in themselves very specific circumstances, which have special repercussions on the law of responsibility and participation.
In these circumstances, the particular grave nature of the acts, united with the absence of express international norms, or the lack of an international organization of States, could justify an individual State's action towards protecting the interests of those affected.
Nonetheless, it is not possible to declare that the present matter is not ruled by any criteria. We have already referenced Article VIII of the Genocide Convention, which we reiterate now, to the extent that it provides, in this matter, that any Contracting Party may "call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide," which for that matter, already has occurred, at least in relation to the creation of international tribunals for the ex-Yugoslavia and for Rwanda. This provision undoubtedly obliges Spain as a Contracting Party to the Convention.
On the other hand, there is no doubt that the principle of non-intervention of certain other States (Article 2.7 of the U.N. Charter) allows for exceptions in terms of acts which affect human rights, but these exceptions withstand only when the possibility of intervention is agreed upon by conventions among States or is decided by the international community, and especially by the United Nations as its representative body, in a way that such decision should not be adopted unilaterally by a State or by the judges of a State by affirmatively deciding that the necessity or convenience of intervention exists.
In the same regard, the written law of he international community, which represents the level of agreement reached by a significant number of countries, only allows the International Criminal Court to declare its jurisdiction in those instances where either the State in which the act was committed or the nationality of the person committing the act is a Contracting Party of the Rome Statute of July 17, 1998 and have recognized the jurisdiction of the Court. In another case the actual and definite recognition by the U.N. Security Council would be necessary for the prosecution of the acts, a requirement that places the potential for international reaction very far away from the unilateral act of any one State, even though such unilateral action might be justified from a moral point of view.
Different criteria of jurisdiction are presented in international treaties on the prosecution of crimes that affect those whose protection is in the interest of the international community. These criteria are generally based on the territory or on the active or passive personality principle, and to them the agreement of each State for the prosecution of crimes is added, no matter what the place of commission may be, when the alleged offender is found in his territory and does not concede to extradition, thereby advising of an action against impunity, and preventing the possibility that there are States that may be used as a refuge for the offender. But is has not been expressly established, in any of the treaties, that each State Party may prosecute, without any limitation and relying solely on its domestic legislation, crimes committed in the territory of another State, nor even in the instances in which this State fails to prosecute the act.
TENTH. Spain has signed various international treaties relating to the prosecution of crimes subject to the protection of the international community.
The appeal's recourse to various treaties is justified on several bases. In the first place, Article 23.4, section (g) of the Law of 1985, contains a provision for the surrender of those accused of crimes which, according to international treaties, should be prosecuted in Spain. It is consistent with these ends that are supposed to be satisfied that the prosecution of crimes of international law presents homogeneity that is set forth in the regulation established in the international treaties referred to above. In the second place, by virtue of the provision in Article 96 of the Constitution, the agreement in the treaties is incorporated into domestic legislation, and in addition, in compliance with Article 27 of the Vienna Convention on the Interpretation of Treaties, compliance with international treaties cannot be changed or contravened by means of the domestic legislation of each State.
Among these treaties and agreements a non-exhaustive reference is made to those mentioned below.
The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons Including Diplomatic Agents, of December 14, 1973, published in BOE on February 7, 1986. This Convention provides that each State will set forth what is necessary in order to establish jurisdiction over crimes provided under the Convention, in the following cases: (1) when a crime has been committed in the territory of a State or on board a boat or aircraft registered in the State; (2) when the accused is a national of such State; (3) when the crime has been committed against an internationally protected person who can enjoy this condition in the name of the State. In addition to these principles, each State will set forth what is necessary in order to establish its jurisdiction over those crimes in the event that the accused is not located within the territory of said State and that said State does not release him for extradition to any other of the aforementioned States. No criminal jurisdiction exercised in conformity with national legislation is excluded.
The Convention for the Suppression of Unlawful Seizure of Aircraft of December 16, 1970, published in the BOE of January 15, 1973. Article 4 provides that each Contracting State shall take such measures as may be necessary to establish its jurisdiction ever the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases: (1) when the offence is committed on board an aircraft registered in that State; (2) when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board; (c) when the offence is committed on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State. In addition, each State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in above. The Convention does not exclude any criminal jurisdiction exercised in accordance with national law.
The same provisions are found in the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, of September 23, 1971, published in BOE on January 10, 1974.
The Convention against Torture and other Inhuman and Degrading Treatment or Punishment, of December 10, 1984, published in the BOE on November 9, 1987. It provides in a similar manner to that of the aforementioned conventions that all State parties will provide what is necessary in order to establish jurisdiction over crimes to which the Convention refers in the following cases: (1) when the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (2) when the alleged offender is a national of that State; (c) when the victim is a national of that State if that State considers it appropriate. In addition, each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him to any of the States mentioned above. Nor does the Convention exclude any criminal jurisdiction exercised in accordance with internal law.
The International Convention Against the Taking of Hostages of December 17, 1979, which entered into force for Spain on April 25, 1984, published in the BOE of July 7th of this year, pro vides in its Article 5 that: (1) Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in Article 1 which are committed (a) in its territory or on board a ship or aircraft registered in that State; (b) by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory (c) in order to compel that State to do or abstain from doing any act; or (d) with respect to a hostage who is a national of that State, if that State considers it appropriate. And (2) Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in Article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this Article. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.
In the area of terrorism the European Convention on the Suppression of Terrorism of January 21, 1977, published in the BOE of October 28, 1980, established in Article 6.1 that each Contracting State shall take such measures as may be necessary to establish its jurisdiction over an offence mentioned in Article 1 in the case where the suspected offender is present in its territory and it does not extradite him after receiving a request for extradition from a Contracting State whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested State.
The International Convention for the Suppression of the Financing of Terrorism, adopted in New York on December 9, 1999, ratified by the instrument published in the BOE of May 23, 2002, provides in Article 7 that each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth (in Article 2) when: (1) The offence is committed in the territory of that State; (2) The offence is committed on board a vessel flying the flag of that State or an aircraft registered under the laws of that State at the time the offence is committed; (3) the offence is committed by a national of that State. A State Party may also establish its jurisdiction over any such offence when the offence was directed towards or resulted in the carrying out of an offence referred to in Article 2, paragraph 1, subparagraph (a) or (b), in the territory of or against a national of that State; (2) The offence was directed towards or resulted in the carrying out of an offence referred to in Article 2, paragraph 1, subparagraph (a) or (b): (1) against a State or government facility of that State abroad, including diplomatic or consular premises of that State; (3) The offence was directed in an attempt to compel that State to do or abstain from doing any act; (4) The offence is committed by a stateless person who has his or her habitual residence in the territory of that State; and (5) The offence is committed on board an aircraft which is operated by the Government of that State. In addition, it provides that each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in Article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties that have established their jurisdiction in accordance with paragraphs 1 or 2. Without prejudice to the norms of general international law, the Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law.
Provisions of very similar content are contained in Article 4 of the Vienna Convention of December 20, 1988 against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, published in the BOE of November 10, 1990.
Although the criteria for attribution of jurisdiction present certain variation in terms of the nature and characteristics of the crime, universal jurisdiction is not expressly provided for in any of these treaties.
When one examines further the effects of the principles of territoriality, real or defense and of active and passive personality, the obligation is established to judge the alleged accused when they are found in its territory and not to surrender them to the extradition requested by one of the other State Parties to the Convention. It responds, according to what is understood in an important aspect of the doctrine, to the principle called supplementary jurisdiction or of representative criminal law, at least in its broadest sense. Understood from this regard, as provided by another doctrinal area, as an element of the connection in the area of universal jurisdiction, the State in which the alleged accused may be legitimately found in order to proceed against him, when one of these crimes is at issue.
On the other hand, an important part of the doctrine which certain national tribunal s have tended to recognize is the relevance of a legitimizing link to national interest, within the framework of universal jurisdiction, forming the extension in accordance with the criteria of reasonableness and with respect to the principal of no intervention. In these cases the minimum relevance of national interest exists when the act with which the national interest connects reaches a meaning equivalent to that which is recognized by other acts which, according to the internal law and to treaties, gives rise to the application of the remaining criteria of extraterritorial criminal jurisdiction. The common interest is united to in order to avoid impunity for crimes against humanity with a concrete interest of the State in the protection of certain rights.
This link should be considered in direct relation to the crime used as a basis for finding jurisdiction and not for other crimes, even though they appear related to it, for only in this way may such jurisdiction be found. In this manner, the existence of a connection to the crime or certain crimes does not authorize the extension of jurisdiction to other different crimes, for which no link appears.
ELEVENTH. In the application of the foregoing regarding the crime of genocide, jurisdiction of Spanish courts cannot be extracted, either from the Convention on the Prevention and Punishment of Genocide or from any other treaty signed by Spain, on the basis of universal jurisdiction.
Moreover, it does not appear that any of the alleged accused are located within the territory of Spain, nor has Spain refused their extradition. The exercise of jurisdiction in respect of the acts denounced cannot be based on these facts.
There does not appear to be a direct link to a national Spanish interest in regard to this crime, and although it is possible to find such connection in terms of the nationality of the victims, it is not alleged, nor is it considered to be a commission of the crime of genocide against Spanish persons. Nor is there a direct link with relevant Spanish interests, although they may be seen to qualify as acts potentially qualifying as distinct crimes, committed in their own historical context.
Similar conclusions have been reached in terms of the possibility of terrorist acts. The European Convention of January 27, 1977 for the Suppression of Terrorism already provides for the presence of the alleged offender in the national territory as an element or criteria for finding jurisdiction for these cases in which the requested extradition is denied. This is without prejudice to the questions that may arise regarding the category of acts in accordance with Spanish laws in force at the time of their commission.
TWELFTH. In terms of the qualification of acts constituting crimes of torture, there is a broad international consensus aimed towards its prohibition and punishment as a crime of international law, appearing, among others in the Universal Declaration of Human Rights, Article 5; in the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3; in the International Covenant on Civil and Political Rights, Article 7; and including for its scope in the Geneva Conventions, in which the obligation of every State to search [in their territory] for the offenders and to bring them before courts in their jurisdiction is established. The prohibition also appears in the Spanish Constitution, Article 15. This international consensus crystalizes in the Convention against Torture and other Inhuman or Degrading Treatment or Punishment, signed in New York on December 10, 1984, to which both Spain and Guatemala are parties, in which, as we have observed above, in addition to the obligation to prosecute the presumed offender once found in the State and when the State does not surrender him according to an extradition request, other criteria of jurisdiction, among them, that of passive personality, may be found, which allows the prosecution of the crimes when the victim is of the nationality of that State and that State considers it appropriate.
In regard to the claims alleging acts which affect persons of Spanish nationality. With respect to the acts which occurred in the Spanish embassy on January 31, 1980, among them the murder of several Spanish citizens, the Spanish government and the Guatemalan government, on September 22, 1984, issued a joint communication in which they agreed to re-establish diplomatic relations, in which the Government of Guatemala expressly recognized that the events constituted a violation of Articles 22 and 29 of the Vienna Convention on Diplomatic Relations and thereby accepting, in respect of Spain, the legal effects and consequences that would result therefrom. The complaints also describe the murders of Spanish priests Faustino Villanueva, José María Gran Cirera, Juan Alonzo Fernández and Carlos Pérez Alonzo. The appellants attribute the commission of these acts affecting Spanish nationals to government officials or other persons in the exercise of government functions, or instigated by them with their consent, thereby authorizing the exercise of jurisdiction by Spain on the basis of Article 23.4(g) of the Judicial Power Organization Act and the provisions of the Convention against Torture, without prejudice to the classification or other issues that may present themselves and that should be resolved at the opportune moment at a proper hearing for the Public Prosecutor and the parties.
The Court finds that in regard to the cases concerning the assassination of Spanish priests mentioned above, as well as in the case of the attack on the Spanish Embassy in Guatemala, with respect to the victims of Spanish nationality, once the requirements under Article 5 of the Convention against Torture have been proven, Spanish courts have jurisdiction for the investigation and judgment of the alleged offenders.

III. Conclusion

That we should uphold in part, the appeal for annulment of judgment for violation oflaw and constitutional principles, brought by the representatives of the Argentine Association of Human Rights-Madrid, Rigoberta Menchú Tum and others, the Union of Labor Committees, the Free Association of Attorneys, the Association against Torture, D'Amistiadia Amb el Poble de Guatemala, the Association Center of Documentation and Solidarity between Latin America and Africa, the International Solidarity Committee of Zaragoza and the Association for Human Rights in Spain. This appeal was for an annulment of the ruling issued by the Criminal Chamber of the Audiencia Nacional on December 13, 2000, which decided in favor of the appeal brought by the Public Prosecutor, who sought to overturn the decision of the Central Court of Investigation number one which ruled that there was jurisdiction to entertain claims concerning genocide against certain members of the Guatemalan government. We uphold the appeal in part by the following:

1º To revoke in part the decision of the Audiencia Nacional dated December 13, 2000.

2º To find, on the basis of Article 23.4(g) of the Judicial Power Organization Act and on the provisions of the Convention against Torture, that Spanish courts have jurisdiction for the investigation and prosecution of those crimes committed against Spanish nationals in the Spanish embassy of Guatemala on January 30, 1980, and the acts which harmed Spanish citizens Faustino Villanueva, José María Gran Cirera, Juan Alonzo Fernández and Carlos Pérez Alonzo.

With an official declaration as to court costs.
May this ruling be made known to the above mentioned Audiencia Nacional in terms of its legal effects, sending back the case and acknowledging its receipt.
This judgment that we pronounce, sign and send back will be published in the Legislative Collection.

Luis- Román Puerta Luis Enrique Bacigalupo Zapater Joaquín Delgado García

José Antonio Martín Pallín Carlos Granados Pérez Cándido Conde-Pumpido Tourón

José Antonio Marañón Chávarri Joaquín Giménez García Andrés Martínez Arrieta

Juan Saavedra Ruiz Julián Sánchez Melgar Perfecto Andrés Ibáñez

José Ramón Soriano Soriano Miguel Colmenero Menéndez de Luarca Martín José Manuel Maza

Supreme Court
Criminal Chamber
DISSENTING OPINION
Date: 25/02/2003

The Dissenting Opinion, written by distinguished judges, Judge Joaquín Delgado García, Judge José Antonio Martín Pallín, Judge Cándido Conde-Pumpido Tourón, Judge José Antonio Marañon Chavarri, Judge Joaquín Giménez Garcia, Judge Andrés Martinez Arrieta and Judge Perfecto Andrés Ibañez concerning the appeal for annulment of genocide number 803/2001 (Mayan genocide).
BASIS IN LAW

FIRST. The present dissent - which we write with the greatest respect for the opinion of the majority - agrees in general terms with the legal reasons of the majority's opinion outlined in numbers one through six, where the majority finds a basis for appeal of the decision, dismisses the grounds of effective judicial protection as a basis of appeal as well as error in the admission of evidence as a basis for appeal, and where the majority implicitly finds grounds for appeal over the Audiencia Nacional's application of the subsidiarity principle.
We disagree, however, with the decision on the grounds that its application of the principle of universal jurisdiction is overly restrictive. Such application does not abide by what the Legislature has established in terms of the extraterritorial prosecution of crimes of Genocide, pursuant to Article 23.4 of the Judicial Power Organization Act.
Genocide constitutes a crime which is universally and unanimously condemned by the international community. Those who commit genocide are common enemies to all of humanity, for they assault our most profound values and, by denying the right to exist to one group of human beings, commit the most grave violation of fundamental rights. It is for this reason that the exercise of universal jurisdiction implicates action on behalf of the international community in order to prevent impunity in the case of ethnic genocide.
The severe limits on the application of universal jurisdiction for genocide matters, as established by the majority's ruling, are, as we understand, incompatible with treatment of this grave crime against humanity in accordance with or domestic law and in accordance with international law.
SECOND. Incorrect application of the principle of subsidiarity in the decision on appeal.
From the legal findings one through six of the majority opinion, it should be concluded that this Chamber, as a group, finds the application of the principle of subsidiarity by the Criminal Chamber of the Audiencia Nacional irrelevant, and that it constitutes the only basis for revoking the ruling issued by the criminal court of first instance.
In the first place this principle does not appear in our domestic positive law as a limitation on jurisdiction of Spanish courts in the area of crimes of genocide, which is established in general terms in Article 23.4(a) of the Judicial Power Organization Act. This principal is based on the concept of universal jurisdiction in its proper sense, and as a consequence of the only limitation, that of res judicata provided in letter (c) of the second paragraph of the Article ("that the offender has not been acquitted, pardoned or sentenced in another country ...") but not the principle of subsidiarity.
In the second place, nor does the N ew York Convention, of December 9, 1948 for the Prevention and Punishment of the Crime of Genocide refer at all to the principle of subsidiarity for in this instrument itself there obligatory jurisdiction is established for the punishment of these crimes, which is territorial jurisdiction (Art. º6). By not expressly providing for other types of jurisdiction, except for that of the International Criminal Court, it does not likewise establish rules of priority among them.
THIRD. The Convention of 1948 imposes the obligation of the exercise of jurisdiction for a certain country over acts of genocide occurring in that country, but do es not exclude other States from establishing concurrent extraterritorial jurisdiction over this crime, such as crimes of international law, through its domestic legislation. In sum, the Convention does not impose universal jurisdiction for matters of genocide, nor does it prohibit it.
Assuming that acts of genocide have occurred under the protection of the power of a State in which they have been committed, and in which territorial jurisdiction find itself incapable of functioning, extraterritorial jurisdiction constitutes the only means of preventing impunity.
It is for this reason that a number of countries have entered into the agreement provided in Article 1 of the Convention of 1948 for the Prevention and Punishment of the Crime of Genocide, and have made use of its facility, establishing in its domestic legislation the principle of universal jurisdiction by means of which courts may judge such crimes.
In this manner the legislation of Spain (Article 23.4 of the Judicial Power Organization Act) as well as that of Germany (paragraph 6 of the Penal Code and the particular legislation that entered into force on July 1, 2002), Belgium (Art. 7 of the Law of July 16, 1993, amended by the Law of February 10, 1999, Italy (Article 7.5 of the Penal Code), Portugal (Art. 5 of the Penal Code) or France (Art. 689 of the Code of Criminal Procedure), among some of the closest countries.
This universal jurisdiction over crimes of genocide as crimes of international law is not governed by a principle of subsidiarity, but rather by a principle of concurrent jurisdiction, given that its precise purpose is to prevent impunity, or in other words, to guarantee that the crime of genocide will be punished in any case.
FOURTH. It must be admitted that the necessity of jurisdictional intervention, in conformity with the principle of universal justice, is excluded in the event where territorial jurisdiction is prosecuting the crime effectively in the very country where the crime took place. In this way one may describe a principle of necessity of jurisdictional intervention, which derives from the vary nature and purpose of universal jurisdiction.
The application of this principle determines the jurisdictional priority of territorial jurisdiction, when there is concurrent jurisdiction between this one and the one which exercises jurisdiction on the basis of the principle of universal justice.
However, this criteria does not act to exclude the application of the provision of Article 23.4 of the Judicial Power Organization Act which establishes, as a requirement for admitting a complaint based on extraterritorial genocide, that there has been inactivity or ineffective prosecution on the part of the courts of the territory in which the acts occurred. This requirement would effectively remove the meaning of universal jurisdiction for genocide, since it would involve proving something that is practically impossible, and determining the necessity of an extremely sensitive evaluation at an early procedural stage.
For the necessary admission of a complaint, in this matter, the same that is required in relation to the acts alleged to constitute the crime of genocide. The showing of reasonable and serious indication that the serious crimes alleged have not to date been prosecuted in an effective manner by territorial jurisdiction, for whatever reasons that may be, without implying any pejorative judgment on the political, social or economic conditions of the country which have made a de facto determination of impunity.
Indeed, in the present case, from the documentation presented by the complaint and validated by the investigating judge, it is manifestly clear that many years have passed since the occurrence of these acts, and for some reason or another, the courts in Guatemala have not been able to effectively exercise jurisdiction with regard to genocide of the Mayan population.
As a consequence, the grounds for appealing the decision based on violation of law in terms of the misapplication of the principle of subsidiarity should be upheld. Given the nature and the effects of the appeal the decision should declare, without any more procedure, the annulment of the judgment issued on appeal by the Criminal Chamber of the Audiencia Nacional, confirming the decision of the Central Criminal Court number one, which allowed the complaint to proceed, under its own terms, without prejudice to what could result from the instruction of the case.
FIFTH. Reformatio in peius.
The application of the principle of subsidiarity constitutes the only basis upon which the Audiencia Nacional, at the direction of the Public Prosecutor, rejected the decision of the criminal judge in the first instance.
The majority decision itself finds that such basis is incorrect, to the extent that result would be, as previously observed, to uphold the reasons for appeal based on violation of law and to annul the decision of the Audiencia.
By not doing this, the decision finally adopted by the majority results in reformatio in peius, since only the appellants have been the complainants, and the ruling prejudices their position prior to the appeal on the essential basis of its contention, namely the crime of genocide allegedly committed in Guatemala against the ethnic Mayan population.
The decision on appeal found Spanish jurisdiction over the alleged crimes of genocide, by means of criteria shared by the criminal judge of first instance as well as by the Audiencia, and only allowed for the exercise of jurisdiction "at this moment" for the time having elapsed since the works of the Historical Clarification Commission (February 25 of 1999) until the first complaint was brought before the Audiencia Nacional (December 2, 1999). The Chamber of the Audiencia found that said lapse of time did not provide sufficient indication as to whether the judicial bodies of Guatemala competent to prosecute genocide would take action or not. The challenged decision did, however, leave open the possibility of allowing the complaint alleging genocide to proceed if, after more time, such impunity were proven. And it must be acknowledged that three years have already elapsed.
On the other hand, in regard to the issue of universal jurisdiction, the majority opinion follows an even more rigid interpretation than that of the Public Prosecutor' s Office of the Audiencia Nacional, more restrictive than the Chamber, finding that Spanish courts may only exercise jurisdiction over crimes of genocide committed in foreign countries when the victims of genocide are Spanish nationals (something which would rarely occur), or those who are guilty are found in Spanish territory (Legal Reason Eleven).
The consequence of the decision, although upholding the appeal in part, limits the admission of the complaint exclusively to those crimes of torture and only crimes of torture against Spanish citizens. As for the international crime of genocide, the claiming victims of the Mayan population, which is the very basis of the complaint, the decision rejects the possibility of Spain exercising jurisdiction, not just "for the present time," as was the decision of the ruling on appeal, but rather, as a definite manner.
The reformatio in peius arises when the decision of the appeal court results in a prejudicial modification of the decision being challenged on appeal, which is not a consequence of any of the arguments presented before the Tribunal nor by any of the motions for revision admitted during the procedure.
In the present case, the appellants carne before this Chamber on appeal due to the fact that the Audiencia Nacional would not admit the complaint alleging acts of genocide, "at the present time." The judges of the Audiencia Nacional found that it was difficult to verify the lack of effectiveness of the national courts, and were interested in a resolution of the issue, which, in terms of the application of universal jurisdiction to genocide as a crime against the international community, was more favorable than that of the present decision. The present resolution of the appeal contains a ruling which is more restrictive and which denies Spanish courts jurisdiction as a definite matter, no matter whether territorial jurisdiction proceeds or not. The prejudice resulting from this modification is manifest.
It cannot be argued, before it, that the ruling depends solely on the law and that in such circumstances the limits of reformatio in peius are not activated, for in all cases in which the resolution of an appeal incurs such harm to effective judicial protection, it does it precisely by finding that the adopted decision conforms to the law. What is important is that, once the basis for revoking the Audiencia decision was deemed incorrect, the majority decision neither upholds the claims of the appellants, nor substitutes the basis of the Audiencia Nacional's decision with other reasons, but rather, takes advantage of the opportunity resulting from the presence of an appeal to put forward a new doctrine, one that is more restrictive than the application of universal jurisdiction sustained by the challenged decision. As a consequence, the appeal is used in prejudice to the appellants themselves.
SIXTH. Interpretation contra legem of Article 23.4 of the Judicial Power Organization Act. Article 23.4 of the Judicial Power Organization Act, which describes the criteria of the sovereign by the Legislature in this regard, provides that: Spanish courts will be equally capable of exercising jurisdiction over crimes committed by Spanish people or by foreigners outside the national territory which are subject to be classified, according to Spanish criminal law, as one of the following crimes: a) Genocide; b) Terrorism; c) Piracy and Hijacking aircraft; d) Counterfeit of foreign currency; e) Crimes relating to prostitution and to the corruption of minors and disabled persons; f) /llegal drug trafficing; g) And any other crime which, according to treaties or international conventions, should be prosecuted in Spain.
The only limitation that the law establishes for the exercise of said extraterritorial jurisdiction is that the offender must not have been acquitted, pardoned or convicted in a foreign territory.
There is doctrinal consensus that this norm includes the principle of universal jurisdiction, in the sense that Spanish jurisdiction is attributed exclusively in consideration of the nature of the crime, without taking into account either the place where the crime was committed, nor the nationality of the victim or the offender.
The majority opinion considers that the general nature of the norm raises questions, and implies that it is necessary to establish appropriate criteria through other principles of international law, in order to avoid opening up the procedures for these crimes no matter where the place of commission may be. Among these criteria is the requirement that there be some nexus or link to the national interest, criteria which we will refer to later.
But the latter argument of the proposed principle is not limited to establishing the appropriate criteria but rather that of following a doctrinal position which is manifestly antagonistic to what is provided by the Legislature in Article 23.4 of the Judicial Power Organization Act, and with which the majority arrives at a conclusion which drastically modifies said legal norm.
In effect, point eleven of the legal reasons, in which the majority spells out the criteria for finding jurisdiction over the crime of genocide, dispenses with what is established in the above-mentioned Article 23.4, resulting in an interpretation, in our view, contra legem.
The above-mentioned principle clearly provides that Spanish courts will have jurisdiction over crimes capable of being classified, according to Spanish criminal law, as a crime of genocide, among others, that are committed by Spanish nationals abroad or by non-nationals outside the national territory.
However, point eleven of the majority's reasoning rejects jurisdiction by Spanish courts over the denounced acts of genocide due to the fact that none of the victims were of Spanish nationality and that none of the offenders were located in Spanish territory. The majority opinion finds that such are the criteria for finding jurisdiction in these cases. But the truth is that no such criteria appear in any legal principle whatsoever.
SEVENTH. The requirement that the victims of the genocide be Spanish nationals for the extraterritorial exercise of jurisdiction over the crime of genocide proves manifestly antagonistic to what is provided in Article 23.4, for it is unanimously recognized that this principle is not in any way based on the principle of passive personality. What is relevant is the nature of genocide, as a crime committed against the international community (as it is characterized by the Penal Code of 1995 in Title XXIV of the special section), and not the nationality of the victims. Moreover it sets forth a requirement that renders the principle of extraterritorial prosecution of genocide practically meaningless.
The classification of genocide as a crime, set forth in Article 607 of the Penal Code of 1995 is only met when certain conduct has occurred in respect of an ethnic group with the intent to destroy, in whole or in part. It is not possible to characterize conduct that only affects Spanish nationals as a crime of genocide, if these victims do not correspond to that group.
The effect on victims of Spanish nationality or on Spanish interests, in terms of the scope of an alleged occurrence of genocide, may act nonetheless as a nexus with national interest, which reinforces the reasons justifying the exercise of Spanish jurisdiction over the matter. However, in any case, jurisdiction is exercised, in accordance with Article 23.4(a) of the Judicial Power Organization Act, pursuant to the principle of universal justice, which covers the very act of genocide in itself.
Moreover, by finding that jurisdiction by Spanish courts may only be exercised over crimes of genocide if the crime of genocide has been committed against Spanish nationals, the Court is applying a principle of national interest that has nothing to do with the consideration of the crime as a crime against the international community, an attribution given to genocide by our very own national legislation (Titile XXIV of Book II of the Penal Code of 1995).
EIGHTH. The requirement that the offenders be located in Spanish territory is another criteria of jurisdiction recognized by the majority for the case where the victims of genocide are not Spanish citizens.
This majority deduces this restriction from a series of International Conventions, none of which relate to genocide, but which the majority considers as establishing a limit on Article 23.4 of the Judicial Power Organization Act, given the references to Conventions contained in the last paragraph of said Article.
It is sufficient to read Article 23.4 in order to appreciate that it distinguishes between two groups of crimes giving rise to the application of universal jurisdiction for which it provides. In the first place, there are those falling under immediate and direct extraterritorial jurisdiction, by virtue of its national legal principle (sections a to f) and, in the second place, those which may become subject to such jurisdiction by application of a signed treaty. (section g).
With respect to the first, the Spanish legislature assumed and incorporated, within its domestic regulation, the principle of universal jurisdiction, in function of the grave nature of these violations against the essential interests of the international community, accepting the principle of ius cogens which it considers without discussion. On the contrary, section (g) opens the principle to what may eventually result in new international conventions to which Spain may decide to adopt.
For this reason section (g) cannot be interpreted as establishing generic limits regarding jurisdiction that has previously been recognized.
Moreover such treaties normally establish certain international obligations in the exercise of jurisdiction for certain events, which constitute an obligatory minimum and not a maximum. From this it cannot be concluded that there is a generic prohibition on the exercise of universal jurisdiction over those responsible who are not located in national territory.
In addition, in no case could a request for extradition be made, for which the Judicial Power Organization Act of 1870 itself expressly provided for with very effective results for limiting impunity.
As a result, the initiation of the procedure for the criminal prosecution of a crime against the international community in conformity with the provision of Article 23.4 of the Judicial Power Organization Act does not necessarily require the presence of the offenders of the crime in Spain. This presence is only required for trial, in accordance with the rule of Spanish law prohibiting criminal trials in absentia.
Clearly the presence of the offenders in Spain does not constitute a general condition for the exercise of universal criminal jurisdiction, but rather a pre-condition of practicability, which can be reached by means of extradition.
NINTH. The references to international decisions used by the majority decision as a means of supporting its restrictive criteria prove unconvincing.
The decisions cited of the Supreme Federal Court of Germany, of 1994, have been overturned by subsequent decisions of the Supreme Constitutional Court of the Federal Republic of Germany. For example, the decision of December 12, 2000 (BverfG, 2 BvR 1290/99) has confirmed the constitutionality of the sentencing issued by German courts for acts of genocide committed by Serbs in Bosnia-Herzegovina against Bosnian victims, namely, in circumstances which do not directly affect German interests.
The particular German law on this matter, which entered into force in July of 2002, does not establish meaningful limitations for the exercise of extraterritorial jurisdiction over the crime of genocide.
The decision of the lnternational Court of Justice at the Hague, on February 14, 2002, which ruled that Belgium must cancel its international arrest warrant issued against the current Minister of Foreign Affairs for the Democratic Republic of Congo, cannot constitute a precedent which limits the exercise of universal jurisdiction for matters of genocide, due to the fact that the complaint brought by the Congo was clearly aimed so that the lnternational Court of Justice would not decide on the issue of whether customary international law authorized the exercise of universal criminal jurisdiction over international crimes, limiting itself to the question of whether the possible contravention of international norms of immunity protected current Ministers of Foreign Affairs.
As a result the decision is not pronounced against the principle of universal jurisdiction broadly incorporated in the Belgian law of July 16, 1993, amended by the Law of February 1999, for it limits itself to respect for the international principles of diplomatic immunity, as the basis of the decision of the Court for ordering the cancellation of the arrest warrant.
It is appropriate to note that in their separate joint opinion, Judges Higgins, Kooijmans and Buergenthal arrive at the decision that under certain determined conditions, customary international law authorizes the exercise of criminal jurisdiction over international crimes in accordance with the principle of absolute universality.
TENTH. The principle of universal jurisdiction in respect of genocide is established in other more relevant judicial decisions.
For example, the decision of July 11, 1996 of the lnternational Court of Justice at the Hague (case of Bosnia v. Federal Republic of Yugoslavia) expressly recognized the right of States to exercise universal jurisdiction over matters of genocide.
The decision of the Constitutional Court of the Federal Republic of Germany of December 12, 2000, cited above, affirms that genocide is, as the most grave violation of human rights, the classic case for the application of the principle of universality, which has as its function that of making prosecution possible, without gap s of impunity, in respect of crimes against the most grave legal nature for the international community.
The recent decision of the Supreme Court of Belgium (Cour de Cassation de Belgique) of February 12,2003, cited in the majority opinion (the case of Sharon and others), confirms the exercise of universal jurisdiction over crimes of genocide, in conformity with the provisions of the Belgian law of July 16, 1993, amended by the law of February 1999, which establishes a similar regulation to that provided in Article 23.4 of our Judicial Power Organization Act. It classifies genocide as a crime of international law, and affirms that Belgian courts have jurisdiction for judging these crimes, "regardless of the place where they have been committed" emphasizing that criminal prosecution "does not require the presence of the accused in Belgium territory."
The decision of the Supreme Court of France (Cour de Cassation) in the case of Klaus Barbie established that crimes against humanity are not subject to a statute of limitations and may be the subject of a judicial proceeding in France regardless of the date or place of commission. This indictment belongs to a controlling international order, to which France has adhered, under which the notion of boundaries is simply alien.
The decision of the Chamber of Lords of the United Kingdom, issued on March 24, 1999, in the case of Pinochet, recalls that international law provides that crimes of ius cogens, among them crimes of genocide, may be punished by any State, because these criminals are the common enemy of all of humanity and all nations have the same interest in their arrest and prosecution.
It is clear that those surrounding us in the European legal community recognize the notion of universal jurisdiction as it is incorporated in Article 23.4 of the Judicial Power Organization Act as an established norm of customary international law for crimes of genocide and other crimes against humanity. Therefore, there is no basis for finding that universal jurisdiction, under the terms provided in Article 23.4, is contrary to other principles of international law; rather, it is in full conformity with such principles.
ELEVENTH. Derogation from the principle of universal jurisdiction.
The regulation of the principle of universal jurisdiction, established by the Spanish legislature in the Judicial Power Organization Act of 1985, does not limit the application of this jurisdiction by means of the additional requirement that there be some point of connection to a national interest. The majority opinion seems to find that this provision of the Legislature is unreasonable, and applying reasoning based on lege ferenda corrects that which is established in Article 23.4(a) by insisting on an additional requirement.
The requirement of some link or connection between the criminal acts and so me interest or values of the citizens of the State in order to exercise universal jurisdiction may constitute a reasonable criterion for self-restraint in order to avoid the proliferation of proceedings relating to crimes and places completely foreign and far away, to avoid excessive wear on the national judicial bodies before which actions are brought.
But it would only be the case if it were applied strictly, as a criterion of exclusion for excess or abuse of rights, not to be applied as a way of derogating from the practice of applying the principle of universal jurisdiction, converting it into an exception rather than the rule.
The decision results in a restriction that is not expressly established in the law, but that may be assumed as emanating from principles of international criminal law, and applied as a criterion of reasonableness in the interpretation of jurisdictional norms.
However, this requirement cannot be applied in such a way as to render meaningless the general character of Article 23.4 of the Judicial Power Organization Act, namely to substitute the legal norm of finding jurisdiction based exclusively on the nature of certain crimes, with the principle of passive personality, a principle which is not a part of our legislation, or with a principle of defense, which is provided for in a separate section of Article 23 of the Judicial Power Organization Act.
In particular, in terms of what is referred to as the so-called fundamental nucleus of international crimes, such as genocide and crimes against humanity, the replacement of the principle of universal jurisdiction with that of passive personality constitutes a manifest error, since it deals precisely with crimes whose international sanction derives from the view that such crimes constitute an attack on the common values recognized as fundamental by the international community as a whole.
The application of the criterion of reasonableness mentioned above may allow a national court that has general extraterritorial jurisdiction over the matter, as occurs in our country with the Audiencia Nacional, to deny the abusive exercise of jurisdiction in relation to alleged criminal facts having occurred in country that have no connecting link, in a broad sense, with Spain, with Spanish citizens, with its interests and relations. This restriction may be assumed when it is directed towards a reasonable end, such as that of avoiding an excessively expansive proceeding, and to guarantee the effectiveness of jurisdictional intervention, since in the event of the absolute absence of any connecting link with the country and the acts alleged, in the broad sense mentioned above, the effective practice of the proceeding may be null.
But if we interpret this connection or nexus as interpreted by the majority opinion, in such a strict fashion that jurisdiction over genocide may only arise in cases in which the victims are Spanish nationals, that in order to exercise jurisdiction they must be of the same ethnic group as that of the victim of said crime, then we suppress in practice the principle of universal jurisdiction, derogating from the provision of Article 23.4 of the Judicial Power Organization Act. In effect such requirement for finding jurisdiction in these cases would no longer be based on the nature of the crime, as expressly provided by the principle, but rather the nationality of the victim.
As we have observed, the effect on victims or on Spanish interests, in the matter of alleged genocide, may reinforce, as a nexus, the reasons for Spanish courts to accept jurisdiction over the matter, but this should be done in application of the principle of universal justice, which includes acts of genocide in its very sense.
As a result, the requirement of a nexus, as a formula for generally excluding the application of Article 23.4 of the Judicial Power Organization Act, cannot be employed.
TWELFTH. In any event, if such criteria of a connection were to be considered, it is precisely in the present case that there is such a nexus.
In the first place, one has to consider the cultural, historical, social, linguistic, legal and of all kinds of links which unite Guatemala and its indigenous population to Spain, and which do not permit the consideration of the foreign nature of the matter in absolute as a reasonable criterion for excluding the general rule contained in Article 23.4 of the Judicial Power Organization Act, which grants jurisdiction to Spanish courts for prosecuting crimes of genocide.
It must be taken into account that the relevant rule in these circumstances is that of facilitating prosecution, and in the present case the legal and linguistic community endorse the greatest effectiveness of such jurisdictional intervention, with respect to other countries which do not belong to this cultural community.
It should be insisted that it is not this legal and linguistic community which determines jurisdiction, but rather the principle of universal jurisdiction and the nature of the crime, but it is clear that the relevance of this community prevents the consideration of this country as being foreign and as lacking any connection with our country with respect to what happened to the Mayan people.
Although we dispose with this criterion of the cultural community, that for some results polemically, we must note that in the second place it is an undeniable fact that the complaint refers to a significant number of victims of Spanish nationality, which, if not direct victims of the crime of genocide, since they do not belong to the Mayan population which was attacked, were nevertheless assaulted and attacked as a reprisal for their defense of indigenous people and in the course of the alleged acts of genocide.
And, in the third place, the attack on the Spanish Embassy must be taken into consideration, something that could not be a more clear example of an event affecting the interests of our country, and constitutes a manifest case of this connection, for it occurred pursuant to acts of genocide, as a apparent reprisal for the protection that it was offering to this ethnic group under attack.
The decision do es not support Spanish jurisdiction pursuant to the principle of defense, but rather by applying the provision of Article 23.4 of the Judicial Power Organization Act with the reinforcement added by the requirement that there be an additional nexus which justifies the exercise of universal jurisdiction by Spain, independently of the diplomatic agreements reached, which have no affect on the crime of genocide as the subject of the complaint.
THIRTEENTH. If in this case it can be said that there is no connecting nexus, then this requirement is nothing more than a pretext for excluding or suppressing the application of universal jurisdiction in cases of genocide itself. For it will be difficult to repeat in the history of Spanish jurisdiction a case in which so many connecting links to a crime of genocide will exist, including an attack on our own embassy and including the assassination of Spanish priests who tried to protect the threatened ethnic group.
The exercise of universal jurisdiction, by eradicating impunity for the most grave crimes against humanity, contributes to peace and to the humanization of our civilization. It is true that it does not bring life back to the victims, nor can it achieve the goal of prosecuting all of those who are responsible. It helps to secure a more safe and just world, and helps strengthen international law, in place of violence, as a the usual means of resolving conflicts.
It is for all of the above that, pursuant to Article 23.4 of the Judicial Power Organization Act, we find that the following should have been concluded:
WE CONCLUDE
That we should hold and we hold that, the appeal for annulment of judgment having been brought, the judgment of the Criminal Chamber of the Audiencia Nacional should be annulled, and that the decision of the judge of first instance of the Central Court Number 1, issued on April 27, 200, should be upheld on its own terms.

Joaquín Delgado García José Antonio Martín Pallín Cándido Conde-Pumpido Tourón

José Antonio Marañón Chávarri Joaquín Giménez García Andrés Martínez Arrieta

Perfecto Andrés Ibáñez

(*) Unofficial translation by the Managing Editor of International Legal Materials (ILM), a bimonthly publication of the American Society of International Law. Cite as 42 ILM 686 (2003).
Permission to reproduce authorised in exchange for provision by Equipo Nizkor of original decision.

Notes:
1. Sic. - ILM Editor. [Back]
2. Sic. - ILM Editor. [Back]

Human Rights in Guatemala

This document has been published on 07Aug03 by Equipo Nizkor and Derechos Human Rights

Luis- Román Puerta Luis	Enrique Bacigalupo Zapater	Joaquín Delgado García
José Antonio Martín Pallín	Carlos Granados Pérez	Cándido Conde-Pumpido Tourón
José Antonio Marañón Chávarri	Joaquín Giménez García	Andrés Martínez Arrieta
Juan Saavedra Ruiz	Julián Sánchez Melgar	Perfecto Andrés Ibáñez
José Ramón Soriano Soriano	Miguel Colmenero Menéndez de Luarca Martín	José Manuel Maza