Walker (II)
Scope of the principle of universal jurisdiction in the English system: evolution and current status.
expository purposes, I have distinguished in the evolution in Spain four phases: first phase, absence of the principle of universal jurisdiction by English law, second phase , implementing absolute (or true) the principle of universal jurisdiction, third stage, which I call "conflict" for the "discussion" legal between the Supreme Court and the Constitutional Court and the fourth phase, referred to the current state of affairs after the 2009 reform of art. 23.4 LOPJ. Also note that for reasons of space is not possible to delve with all sorts of details about the facts and legal arguments submitted by several English legal institutions, but will try to provide the most significant keys. First phase: no
Before the entry into force of the Organic Law 6 / 1985 of 1 July, the Judiciary, Spain had no provision to incorporate the principle of universal jurisdiction. In relation to crimes of genocide, the acceptance by Spain of the Convention on the Prevention and Punishment of the Crime of Genocide led to the definition of genocide in 1971, while still quite paradoxical Francisco Franco in power. But one thing is the definition of a behavior and one is taking ownership of the universal jurisdiction, which did not happen until 1985.
Second phase: absolute or real application of principles
, 1985 The English legislature decides to incorporate, through art. 23.4 LOPJ 1, the principle of universal jurisdiction absolute that is, in terms of the definition given by International Law Institute (" regardless of where the crime was committed and regardless of any link active or passive nationality or other criteria of jurisdiction recognized by international law. "). The only limit was that of art. 23.2 c) that I said above . It should be noted that this configuration is, in my opinion, the real or true universal jurisdiction, unlike the International Criminal Court, which is limited, as I said, by the consent of States.
all happened more or less quiet in judicial practice (or lack thereof) of that provision until the second half of the 90 of the past century XX, in the beginning, in chess terms, to moving parts . On March 28, 1996, having won the elections March 3, the Popular Party (detail that is relevant because, as we shall see, politics and the principle of universal jurisdiction are closely related), the Progressive Union of Prosecutors presented a letter of complaint to the Police Court for the AN English courts to declare their own jurisdiction to prosecute persons responsible for crimes against humanity, particularly those perpetrated by military juntas in Argentina and Chile in the 70 and 80. The Central Criminal Court No. 5 and 6 taken steps designed to prosecute those responsible. The PP government based on political and economic criteria and not justice, it considered unwise take action against former Argentine and Chilean authorities in particular and the unlimited exercise of universal jurisdiction in general. Therefore, in a move unprecedented in the history of English democráctica, the then Attorney General Jesus Cardenal, Eduardo Fungairiño proposed as Chief Prosecutor of the High Court against the opinion of the Audit Committee. Fungairiño is appointed and is charged with the preparation of a report to examine the jurisdiction of English courts, and perhaps would be naive if I did not think the commission's report would not imply the conclusion. So, in October 1997, is presented Fungairiño Report with the title "A Note on the jurisdiction of English courts, which contains some of the atrocities legal highlights of the history of the Office of the AN, as when he says, referring to acts of genocide and terrorism committed by Military juntas in Argentina and Chile it is difficult to fit them into the crime of terrorism because "it is questionable (...) that the extermination of political dissent was the overthrow of constitutional order can not be forgotten that the military junta (...) [intended] to remedy the shortcomings of that constitutional order suffered to keep the peace ", in addition to categorically deny the jurisdiction of English courts citing the lack of connections.
Installed in this tension-Central Criminal Court Prosecutor, everything seems blow when the October 16, 1998 is admitted to the charges against Augusto Pinochet Ugarte, former Chilean head of state "Senator for Life" for the crimes of genocide, terrorism and torture. The same day detention order is issued international arrest warrant and, with, coincidentally or not, Pinochet in London, which was a unique opportunity to apply for his extradition to Britain, as it was done on 3 November of that year proposal by the English Government. Given this, the Prosecution opposes all legal reasons imaginable to try to avoid prosecution of Pinochet, including those relating to the general lack of jurisdiction, immunity, the doctrine of res judicata, etc., All as seen in the previous questions . The Judgement of the House of Lords of March 24, 1999 to be resolved by the extradition of Pinochet after several AN cars and resolutions of British jurisdiction is favorable to it and believes that immunity can not operate as acts that can not be qualified "state", among other legal issues. Finally, yes, the United Kingdom refused extradition on health grounds 2. What is truly remarkable about this case is the statement by the English courts, the competition with no limits or requirements of connection or presence of the offender on English territory, or what is the same, the true exercise of universal jurisdiction.
Already in 2000, the ICJ's Judgement Affaire relative au mandat d'arrêt du 11 avril 2000 (Arrêt du 14 fevrier 2002) Reports 2002 cut universal jurisdiction exercised by foreign national courts, as I have already above . Notwithstanding the ICJ on immunity, it does not rule on the legality of this exercise, which does not affect the core of principle. In Spain, in fact, the Supreme Court continued to produce sentences in which it reaffirmed the jurisdiction of English courts.
Third phase: the conflict between the Supreme Court and the Constitutional Court
In Spain, things seemed to be more or less clear: the English courts had jurisdiction to prosecute crimes universally contained in art. 23.4 LOPJ and it had ratified the law.
However, the Supreme Court, Judgement of February 25, 2003, argues that Spain lacks jurisdiction to try the events in Guatemala between 1978 and 1986 qualify as possible crimes of genocide, terrorism and torture. Without wishing to be exhaustive, the following lines set TS :
"The international treaties signed by Spain to prosecute crimes" that protect
legal rights whose protection in general interest to the international community "down
criteria of jurisdiction because the territory or active or passive, and
to add it to each State's commitment to pursue these facts, whatever the place of
commission, when the offender is present in its territory and it does not extradite (aut dedere
punire) , "but has not expressly stated in any of those treaties
State party may pursue, without limitation and provided only to its domestic law the
events in the territory of another State, even where it did not come to
persecution. "
The Court justifies an interpretation based on these treaties for two reasons: first
place by the general reference of art. 23.4 g) LOPJ to crimes covered by treaties or international conventions
should be pursued by Spain, to be "consistent with the purposes
which aims to address" the application in the prosecution of crimes
Law International
consistent approach that can be seen in them, and, secondly, because
of that art. 96.2 EC and national law incorporates content these treaties, together with art.
27 of the Vienna Convention on the Law of Treaties of May 23, 1969 (hereinafter
Convention on the Law of Treaties), which prevents their contents altered or missing on the base
domestic legislation of each State. From there the Judgement examines these
Treaties signed by Spain, came to the conclusion already anticipated, that (says) answered
that "an important sector of the doctrine" does "principle of justice
extra or
criminal law representation, at least in a broad sense, "and other doctrinal sector as
" a connecting element in the scope of the principle of universal jurisdiction. "
Recognized by the doctrine and some national courts "connection with an interest
national" as "legitimate element in the framework of the principle of universal justice," it
understand that the national interest is relevant for these purposes when the act with which
connect "to reach a significance equivalent to that accorded to other facts, as law
internal and treaties, leading to the implementation of the other award criteria
extraterritorial criminal jurisdiction, this connection should also be assessed in relation
to the crime which serves basis for attributing the jurisdiction, and not to others related to him,
so that the existence of such a connection in relation to a crime not authorized to extend the
to a different jurisdiction where such connection is not appreciate.
application of this doctrine in the jurisdiction Universal English courts can not
drawn from the provisions of the Convention on Genocide or any other treaty signed
by Spain, also does not appear that any of the guilty is in English territory or
that Spain has refused his extradition, nor appreciated the existence of a connection to a
English national interest, therefore, be possible to specify the connection on the nationality of the victims
not seen the commission of on English genocide, even if they have seen
affected by events that qualify as separate offenses. The same goes for terrorism "without prejudice
of issues which could lead to the criminality of the acts under the laws
English force at the time of its commission." Regarding torture, Spain and Guatemala
party to the 1984 Convention, which incorporates the principle of passive personality,
pursuing the facts the State of nationality of the victim when it deems
appropriate.
The allegations include Events of the Embassy of Spain, which killed
English citizens, having recognized the Government of Guatemala in the joint communiqué
1984 which constituted a violation of the Vienna Convention on Diplomatic Relations
and accepted
the consequences that may arise, and also report the death of
four English priests, it is allocated to staff or other persons in the exercise of
public functions, which allows for both maintaining made the jurisdiction of the
English courts under art. 23.4 g) LOPJ, under the Torture Convention.
Consequently, the Supreme Court partially upheld the appeal and declared
jurisdiction of English courts regarding those two facts. "
addition to requiring as a condition of being given the assumption of passive personality principle and subsidiarity (showing he understands little of international law) TS fits in the latter the idea that proving lack of activity in the country with territorial jurisdiction is not enough time, but requires the rejection of the complaint. Furthermore, in its FD9 º summarizes the philosophy behind these requirements, stating that "does not belong to any particular state to unilaterally set the order using the criminal law against everyone and everyone, but rather makes lack a connection to legitimize the extraterritorial jurisdiction. " As shown, such words are but an ode to ignorance, confusing the jurisdiction masterfully Extraterritorial with universal. As happen to the Public Prosecutor when he tried to prevent the prosecution of Pinochet, citing international instruments that had nothing to do with it (such as the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, of December 14, 1973, which is obviously referring to them as passive subjects of crime and not as active) Supreme Court will note some intellectual laziness to not even bother to study the correct interpretation of the treaties mentioned and jurisprudence of the ICJ and the views of the Commission. Although not all their members, as the opinion signed by seven judges is much more sensible and technically correct.
In view of this Judgement, is an appeal for amparo to the Constitutional Court that in its Judgement of 26 September 2005 gives a severe setback to the TS, which he criticizes its lack of rigor in citing international instruments, to make an interpretation against legem and against the principle pro actione Art. 23.4 LOPJ (and thus in breach of art. 24 CE) to establish requirements that are not covered by English law or treaties, which completely forgotten customary international law and calls diabolical test the requirement to reject the complaint to understand that no activity by the country's court with territorial jurisdiction. Therefore overrides the Judgement of the TS and grant the protection requested.
After that, Spain has continued to be used as a basis for universal jurisdiction opening certain procedures until 2009, which amended the OLJ.
Third phase: the reform of the Law 1 / 2009 of November 3
Organic Law 1 / 2009 of November 3 amending art. 23.4 LOPJ incluyedo in the list of crimes against humanity and introducing passive personality principles (alternatively to the presence of the offender in Spain) and subsidiarity, thus taking the principles of the TS in its Judgement of 2003 before.
" How things change" arguably the attitude of the Government of Spain against the principle of universal justice. The incoming Socialist government showed 2004 was then a supporter of that principle, indeed, in his conception absolute or true . It is assumed that differentiate obsession Aznar governments and, above all, the economic strength of Spain at the time (misleading, about the call housing bubble, but ultimately strength After externally) led to the government led by Zapatero to go that route. The example of such subsidiaries is that while the governments of the PP in the prosecution did nothing to torpedo any attempt to exercise effectively the principle of universal jurisdiction in 2005, the Prosecution was in favor of granting by the TC under the STC cited above. However, today (2009), during the economic crisis has entered a reform that ends the English universal jurisdiction at a stroke and becomes mere jurisdiction extraterritorial projection based on beyond their boundaries of sovereignty. Even Diego LÓPEZ GARRIDO, current member of PSOE, who wrote with five other professors in college that he was a member of the New Left in 1998, the opinion "against impunity" , now shut against the extermination of the principle that then, while ruling PP, defended so imperiously.
What are the reasons for this shift?. Well, if you stick to the official reasons can sign a few:
"In the Introduction to the Report of the Public Prosecutor of the Year 2008, its pages XXV and XXVI, states: "(...) concern for the damage, not for Spain's position in international relations because it represents a clear interest legitimate state-but also, as most directly affect us, for the prestige of universal jurisdiction exercised in and from our country, could lead to the proliferation of procedures relating to crimes produced in totally strange and / or remote which are filed without a performance perspective, at the request of people are sometimes not directly related to the offense under investigation, and for conduct geographically and culturally remote. A jurisdiction faced with these significant operational difficulties, far from ensuring political to criminal pursued by the principle of universal jurisdiction would contribute decisively to its decline, reaching the feeling of impunity and inefficiency of law to resolve these conflicts. "deserves no further comment the claim that universal jurisdiction processes initiated in Spain have not been ineffective. Conde-Pumpido ought to talk with the rigor that is supposed to the Attorney General, holding that the opening of criminal proceedings is put focus on the offender, who believes that his impunity may shelter ad infinitum , which has undoubtedly promoted the initiation of processes in the countries of offenders, which can not be disregarded without more. More honest is the reason for the effect on diplomatic relations of Spain, but certainly lack the Prosecutor remove the mask and openly acknowledge and to the public (not in a Report designed to His Majesty the King with little spread among the population willing Law) which Spain relinquishes to do justice, to recognize the victims and punish those responsible for political and economic reasons, to recognize the Government despite support from left to judge Baltasar Garzon, Spain's Socialist government prefers to ignore his speech about victims of Franco's victims in the case other .
"The Preamble, paragraph III, the LO of 2009 marks which is modified to" incorporate types of crimes that were not included and the pursuit of which is covered in the agreements and customary international law such as crimes against humanity and war crimes. On the other hand, the reform to adapt and clarify the provision in accordance with the principle of subsidiarity and the doctrine issued by the Constitutional Court and the Supreme Court's jurisprudence. " which is clearly false if we consider that the doctrine of the Constitutional Court does not appear anywhere in the reform, apart from this statement of intent is a serious technical inaccuracies align the level of the jurisprudence of the Judgement of TC and TS void and therefore has no effect. Irriosia truly is the reference to the need to "clarify" the concept of universal jurisdiction, which by 2009 was already quite clear, as I stated in Question 3. In addition, the new version incorporates legal concepts that will detract to such alleged clarification, as the reference to "significant nexus with Spain, as I indicated above .
addition to what I have said throughout this Activity 1 on the nature of universal jurisdiction (denying that what we have today is that the Judicial Power) , I can only endorse what they say and MAILLE SEGURA HERNANDEZ :
"N or we can ignore that at this point is sustained,
the principle non-interference in internal affairs of other countries when we
talking about the most serious violations of human rights, and the performance of
judicial prosecution of those responsible. Roberto Merino said Garretón, Rapporteur of
UN Human Rights in the Democratic Republic of the Congo,
year 2000 (2),'(...) has overcome the discussion on the nature of Case
domestic respect for human rights. Debated for years - and some countries
particularly oppressive of their people insist on discussing ...'.
is therefore inadmissible, which now seeks to elude pursuit and prosecution of
genocide and war criminals on the grounds of national sovereignty of states
from those of nationality (3 .) We can not forget also that Spain
has signed some agreements and treaties, which can not now
ignore, and create a de facto reservation, for the effective implementation of
them
, and the prosecution of responsible for the actions pursued by such agreements
. We must remember that the Geneva Conventions and their Protocols Additional
establish the obligation of the contracting parties seeking to
to have committed or ordered the commission of grave breaches of these
conventions, and make before its own courts or hand them over to another part
contracting the prosecution.
war crimes, crimes against humanity and genocide are part of the law International Criminal have mandatory, ius cogens, are irrevocable and binding
ergam omnes (4) (over all). Are untenable judicial references to collapse
when faced about a dozen procedures and
have been numerous strikes
both justice officials as the last and unusual
strike by judges lack of means, not having universal jurisdiction
any connection with the collapse and lack of means that are the courts and tribunals
(the only outstanding issues are related to the jurisdiction 0.0005
universal).
Likewise, the diplomatic problems that can generate, there seems to be a because it may entail a breach of international we
link, or you can as shadowing , allowing the escape from justice of genocide or
war criminals. The plight of victims, and deny access to
universal jurisdiction can not be the price to do business outside our
borders and of withdrawal, the alleged problems concerning the interests
economic English. Except
the Association of Judges Francisco de Vitoria, who are supportive in principle
, the restrictions approved, both the Professional Association of Magistrates,
as Judges for Democracy have disagreed, understanding that it distorts
the institution and that it is virtually defunct.
We can not, finally, but reject the argument of the effectiveness of such
procedures because we have a legal system which
can stop criminal investigations, if they believe that they will not end in convictions
.
is obvious also from those positions, that the effective exercise of jurisdiction
universal firm has obtained convictions and purposes of general and special prevention
performed if international treaties are not only international texts without
any practical application. "
To conclude, I would not close this "phase" without saying that in my humble way of looking at things, I believe in the concept of universal jurisdiction of the way it was defined by the IDI and provided it complies with the fourteen principles Amnesty International said 7. Anything else makes a mockery of the victims and encourage criminal impunity.
LITERATURE CITED AND CONSULTED
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28
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