THE REFORM OF THE PRINCIPLE OF UNIVERSAL JURISDICTION IN SPAIN: AN UPDATE
Updated: Nov 14, 2018
In Spanish Law, the principle of Universal Jurisdiction (UJ) is contained within article 23.4 of the Judiciary Act. Although this article was first reformed in 2009, in 2014, the principle of universal justice was the subject of a subsequent, and more significant amendment that resulted in its de facto elimination. As a consequence of these above mentioned reforms —which were a direct response to political and diplomatic pressures— several cases initiated on this jurisdictional basis were either closed or suspended, and as a result, Spain ceased to be an international reference in the fight against impunity.
At present, the limitations to the principle of universal jurisdiction in Spanish Law are so profound that it is virtually impossible to open a case and prosecute perpetrators of international crimes based on this jurisdictional basis. Concerned about the serious consequences of the legal restraints, as well as the subsequent closure of almost every UJ procedure before Spanish Courts, a number of civil society organizations with years of experience in international criminal justice —the Spanish Association for Human Rights (APDHE), FIBGAR, the Spanish Bar Foundation, RIS and The Guernica Centre for International Justice, among others— jointly launched the “Platform for the Recovery of Universal Jurisdiction” named Universal Justice Now! (Justicia Universal Ya!). The objective of this Platform is to support a legislative reform to recover what we consider an “essential tool in the fight against the impunity of the most heinous crimes”.
In the context of this social mobilization, on 23 October 2018 all parliamentary groups in the Spanish Congress agreed to review the above mentioned reforms. This commitment was announced during a meeting between parliamentary representatives of justice issues at the Spanish Congress, and “Brothers, Friends and Colleagues of José Couso” (HAC Association), an organization created to support the investigation and prosecution of the murder of the Spanish journalist José Couso, killed in Baghdad in 2003.
This event at the Spanish Congress was organized to review the procedural situation of a Draft Law —proposed by the parliamentary group Esquerra Republicana de Catalunya (ERC)— seeking to expand the current regulation of the principle of Universal Jurisdiction. This draft law has been permanently "paralyzed" from the admission board of the Spanish Parliament since its filing, an unjustified delay which political groups blamed on a “heavy workload”.
In a thread published on its twitter account, HAC Association explained that political representatives accepted its failings, acknowledged the mistakes of the 2014 reform, and agreed to expedite the process to discuss the proposed Draft Law. According to the organization, political groups would have expressed consensus and willingness to work together in order to achieve a minimum agreement that would give shape to the principle of universal jurisdiction.
Nevertheless, in early November 2018, the socialist group filed amendments to the Draft Law that limited the reach of this cosmopolitan principle by establishing further connections to trigger the jurisdiction of Spanish Courts. The Platform Universal Justice Now! issued a declaration “Against the Reform proposed by the Socialist Group in Congress and supporting an Authentic Recovery of Universal Jurisdiction”.
Through this statement, the Spanish civil society called upon the socialist Government and the rest of parliamentary groups on the need “not to miss the current historical opportunity for an authentic and effective recovery of the Universal Jurisdiction that would not only allow victims of the most serious violations of human rights access justice, truth and reparation, but also adapt to the global challenges that we face today in the field of human rights, recovering the lost ground”. Such a necessary reform must not submit Universal Jurisdiction to “conditions or points of connection that represent artificial limitations” to this principle.
“We must remember the successes of Universal Jurisdiction in our country, considered a global model and vanguard in this regard, and clearly express that the real disappointment for the victims of the most serious violations of human rights is impunity and the lack of access to justice, truth and reparation. The victims are the ones who should inspire this reform and, in no case, be used as hostages of it.”