FIDH, LDH and other organisations are calling on the Government of Spain to undertake the necessary steps for the recovery of the Universal Jurisdiction of Spain.
One of the immediate effects that the recent political change produced in Spain must necessarily bring is the reversal of setbacks in terms of human rights, recovering, as much as possible, the lost ground.The Organic Law 1/2014 brought about the complete elimination of Universal Jurisdiction in Spain, as well as any other form of extraterritorial jurisdiction, for the most grave international crimes- genocide, crimes against humanity and war crimes- preventing the obtainment of minimal amounts of justice for the Spanish victims of these crimes. It led to the dramatic closure of practically all criminal cases in the National Court (Audiencia Nacional), leaving the victims of the most serious violations of human rights in a state of great legal helplessness.
It meant, in short, a before and after in the Spanish legal tradition, that despite the restrictions of the disastrous reform of 2009, had managed to keep our country in the international vanguard- as a model of reference- in the struggle against the impunity of the most serious international crimes.
With Law 1/2014, Spain took distance from the current international trend, precisely when in Europe, actions and initiatives to expand the extraterritoriality of their jurisdictions, with a view to greater cooperation between States and with the International Criminal Court (ICC). This trend was bet on a model of complementary actions, in accordance with the principles of the ICC, and other international mechanisms for the investigation and prevention of these crimes. All of this had the intention of ending the flagrant situations of impunity generated by the lack of effective prosecution by the jurisdictions of the places where the commission of these crimes occurred with more transcendence to the international community.
For this reason, the organisations and people promoting this document are demonstrating a priority on the part of the new Government of Spain, of the necessary steps for the recovery of Universal Jurisdiction in Spain, that is recognizable as such, and that returns us to- although technically improved and updated- to the original form of the regulation contained in article 23 of the Organic Law of the Judicial Power of 1985.
We are aware of the initiatives in this regard of the Ministry of Justice, which has commissioned an expert commission to draft a reform proposal with the intention to be presented to Parliament. We of course encourage the Ministry of Justice in this initiative, but at the same time from the viewpoint of a civil
society, we want to express our opinion about the key points that should inspire such reform, and which are the following:
Universal Jurisdiction should be distinguished in a clear manner for the most grave international crimes – genocide, crimes against humanity, war crimes, aggression, torture or forced displacement – from the other forms of extraterritorial jurisdiction or interstate jurisdiction for other international crimes.
The recognized Universal Jurisdiction must be unconditional and not subjected to, be linked to, or have a connection to the Spanish territory.
Equally, the principle of protection of Spanish victims and European citizens resident in our country who are victims of international crimes must be strengthened, in parallel with that of Universal Jurisdiction for all the victims.
There must be a broad recognition of the legitimacy and the right to protection of victims against international crimes, in accordance with the European concept of the victim (Directive 2012/29/EU and Guide Document for the transposition of the Directive.)
International protection of new generation rights, like all forms of modern slavery and those related to the environment, ecocide, as well as international natural spaces contained in the regulation of article 325 of the Criminal Code, in relation to the earth’s atmosphere, high seas etc.
Likewise, the application of Universal Jurisdiction should include economic and financial crimes that, due to their size and scale, seriously affect human rights.
Clearly, effective extraterritorial prosecution must be established in the criminal and civil law of legal persons domiciled or operating usually in Spain, whether they are parent companies of subsidiaries.
The broadest legitimacy for the exercise of actions must be sought in criminal proceedings, not only by the Public Prosecutor’s Office, but also by the victims and in the exercise of popular action.
A specialised criminal investigation unit should be created in the prosecutor’s office, as it exists in other countries, that coordinates its activities and that of the police and that also facilitates cooperation with other States in the investigation and prosecution of international crimes.
Finally, we want, in addition to reiterating our call of attention to the Spanish Government, to extend this interpellation to the political party that supports it and the rest of the parliamentary groups in relation to the urgent need to take effective actions to recover lost ground in terms of human rights, raising this priority to the category of State Policy, over and above party interests.
Likewise, human rights policies are not to remain mere announcements, or programmatic proposals, but materialize in direct reforms and in the approval of well-structured legal projects, which are adequately debated and voted on in Parliament and that represent an advance and deepening of the Spanish democracy. All with a vision and scope that overcomes the conditioning factors of short-sighted and narrow views of international relations or those imposed by corporate interests, regardless of the general interests of our society.
Madrid, 26 october 2018