Door Closing on Universal Justice in Spain

By Inés Benítez Reprint | | Print | |En español

Poster demanding justice 10 years after the death of journalist José Couso. Courtesy: Family, Friends and Colleagues of José Couso

MALAGA, Spain, Feb 24 2014 (IPS) - The pursuit of universal jurisdiction in Spain is drawing to a close because of a bill that will entail the dismissal of over a dozen criminal investigations in the country’s courts and will make it very difficult to open new cases of crimes against humanity.

The rightwing government of Prime Minister Mariano Rajoy and the governing People’s Party (PP) were able to fast-track the reform of the Organic Law of the Judiciary Power in parliament thanks to their absolute majority, and are swiftly heading to block universal justice proceedings in one of the countries that has enforced them most.

A reform bill, rejected by all the opposition parties, was presented on Feb. 11, with the effect that requests for reports and other legal procedures were blocked. And on Feb. 17 the Ministry of Justice asked Congress for measures to accelerate the process even further.

The bill will be rushed through parliament after debate in a single plenary session, it was decided on Thursday Feb. 20, again with the votes of the PP alone, ensuring its speedy entry into force.

If it is approved, “Spain will become a paradise for impunity,” Ignacio Jovtis, an expert on universal jurisdiction who works for the Spanish chapter of Amnesty International, told IPS.

In his view, the proposal “does not only limit the principle of universal jurisdiction, it makes it disappear.”

On Thursday Feb. 27 the senate will vote on the bill.

The principle of universal jurisdiction empowers national courts to prosecute and try a number of serious crimes that affect the international community, independently of where they were committed and the nationality of the perpetrators and victims.

Spain’s proposed reform is criticised by over one hundred NGOs and national and international institutions that stated on Wednesday Feb. 19 that its approval “would be a devastating blow to universal jurisdiction and a violation of Spain’s international obligations.”

The government has treated the reform as a matter of urgency since Feb. 10, when a judge of the Spanish National Court issued international arrest warrants for five former leaders of the Chinese Communist Party on charges of genocide, torture and crimes against humanity during crackdowns on the people of Tibet in the 1980s and 1990s.

“It’s an ad hoc reform to shut down cases that are awkward for Spain,” lawyer Lydia Vicente Márquez, the executive director of Rights International Spain, told IPS.

The reform bill imposes “impossible” conditions on Spanish courts wishing to investigate and prosecute genocide, crimes against humanity or war crimes of a universal nature, she said.

When it is approved, Spanish judges will only be competent to investigate these crimes in cases against Spanish citizens or foreigners resident in Spain, or who are in Spain and whose extradition has been denied by the Spanish authorities, the text says.

“The economic agenda takes precedence over human rights,” Jovtis said.

This reform is a step towards impunity in criminal policy, he said, and “it may also be an invasion of the Judicial Power by the legislative branch,” because parliament would establish the dismissal of cases already open until the new conditions are met, according to its final transitional provision.

Amnesty researcher Jovtis predicted that the majority of the approximately 15 cases before the Spanish National Court based on universal jurisdiction will be shelved because of the reform.

One of these may be the case of José Couso, a Spanish journalist who died in Baghdad on Apr. 8, 2003 during an attack by the U.S. army on the hotel where independent foreign reporters were staying. A Spanish judge has indicted three U.S. military personnel as responsible for his death.

“We are angry and worried. This reform is a complete botch-up and it’s made to measure to dismiss our case,” Javier Couso, the victim’s brother and a member of the Family, Friends and Colleagues of José Couso, told IPS.

The journalist’s brother pointed out that Rajoy met with U.S. President Barack Obama in Washington before the reform was proposed.

He also said that lawmakers should not be the ones to decide the provisional dismissal of cases, because that is the province of judges.

Couso did not rule out taking a complaint to Spain’s Constitutional Court, the European Court of Human Rights in Strasbourg or courts in other countries, if the case against the U.S. military personnel is closed because of the reform.

Couso’s family met with spokespersons from all the Spanish parliamentary parties on Feb. 11 to express their deep concern about the bill. The main opposition party, the Spanish Socialist Workers’ Party (PSOE), promised to study the possibility of appealing the bill on the grounds of unconstitutionality.

Jovtis said it was “shameful” that Spain, “a reference point and a beacon of hope for some countries in Latin America,” should undo what it has done and go against the European and global trend towards incorporating the principle of universal jurisdiction in national legislation.

On Friday Feb. 21, Argentine judge María Servini, acting in a case against crimes committed during the dictatorship of Francisco Franco (1939-1975), asked the Spanish justice authorities to exhume the body of a victim of the Franco era.

The deceased in question is Timoteo Mendieta Alcalá, a trade unionist who was executed in the cemetery of the central city of Guadalajara in 1939, and is buried in a common grave along with 17 others.

“Some 84.4 percent of countries in the world have universal jurisdiction legislation and allow judicial investigations on the basis of this principle for at least one type of crime,” said Amnesty’s Jovtis.

Spain “was formerly in the vanguard” of universal justice and “now we should not let it  fall behind,” according to the over one hundred associations signing the joint declaration against the reform bill that was handed in to the European Parliament by the International Campaign for Tibet.

In addition to the universal justice cases on geniocide in Tibet and the death of José Couso in the Iraq War, the Spanish National Court is currently investigating cases of genocide in Guatemala, Western Sahara and Rwanda.

It is also investigating the murder of Spanish priest Ignacio Ellacuría in El Salvador in 1989, and of Spanish diplomat Carmelo Soria in Chile in 1976, during the dictatorship of Augusto Pinochet (1973-1990).

“There is an international consensus that what are regarded as the gravest crimes should not go unpunished. We do not want impunity, as this would mean they could happen again,” concluded Márquez.