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Spanish National Court, Criminal Division (Plenary Session) Case 19/97, November 4, 1998; Case 1/98, November 5, 1998

Published online by Cambridge University Press:  27 February 2017

María del Carmen Márquez Carrasco  and
Joaquín Alcaide Fernández
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Type
International Decisions
Information
American Journal of International Law , Volume 93 , Issue 3 , July 1999 , pp. 690 - 696
Copyright
Copyright © American Society of International Law 1999

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References

1 Respectively Orders of March 25, 1998, and May 11, 1998, and of September 15, 1998, and October 1, 1998. Relevant documents regarding the cases discussed herein without reference to a publication are in the possession of the authors to whom they were transmitted by the Administrative Department of Judge Garzon. Translations from Spanish are by the authors.

2 Case 19/97 (Judge Garzón) (on file with the authors).

3 Case 1/98 (Judge García-Castellón) (on file with the authors).

4 Prior to the 1978 Spanish constitution, the Public Prosecutor was closely tied to the government. At present, the Public Prosecutor’s Office is not formally designed to reflect the policies of the government. Its functions are to promote impartially justice by defending legality, citizens’ rights and the public interest as provided by law. Thus, as to criminal processes, the office must bring criminal and civil actions but also, when it considers proper, oppose actions brought by others. Nevertheless, the Chief of the Public Prosecutor’s Office (Fiscal General del Estado) is nominated by the Government and, in turn, proposes to the Government the appointment of the Chief of the office at the National Court. The Public Prosecutor’s Office is organized on principles of unity and hierarchy: each official may give orders and instructions to subordinates.

5 In its Judgment 21/1997, February 10, 1997, the Spanish Constitutional Court confirmed the constitutional validity of the establishment of jurisdiction in accordance with the universality principle. Constitutional Jurisprudence Bulletin (Boletin de Jurisprudence Constitucional), March 1997, 37, esp. at 42.

6 Although it is difficult to be precise, it is estimated that at a minimum between 20,000 and 30,000 people disappeared.

7 While those laws were repealed in 1998, they were not annulled. Thus it seems unlikely that prosecutions will ever take place in Argentina against the people responsible for human rights violations committed during the “dirty war.”

8 Spanish law allows private citizens and organizations to initiate criminal proceedings without the approval of the public prosecutor’s office. They need not be victims of the crime in question. In the Argentine case, the actions were brought by the Free Union of Lawyers, Izquierda Unida (United Left, a Spanish political party) and the Argentine Association for Human Rights in Madrid; in the Chilean case, the actions were brought by the Salvador Allende Foundation and the Chilean Group of Relatives of Detained and Disappeared People (Agrupación de Familares de Detenidos y Desaparecidos de Chile).

9 Numerous witnesses, including survivors, relatives of victims, politicians, prosecutors from trials in Argentina, and even the former President of Argentina, Isabel Peron, provided information about the repression in Argentina. Hundreds of records, including those previously filed with the Argentine Courts, have been filed in Investigating Court No. 5.

10 In case 19/97, Judge Garzón was already investigating the scxalled “Condor Operation,” which had been organized by the head of the Chilean National Intelligence Directorate (DINA), acting under Pinochet’s orders, as a means of collecting and exchanging intelligence data relating to the activities of leftist, communist and Marxist groups, so as to facilitate the “elimination of communism” and to protect “Western-Christian” society. Mutual assistance agreements were concluded by the intelligence services of the military regimes in Argentina, Bolivia, Chile, Paraguay and Uruguay. The military regimes in Brazil and Peru also collaborated. Those agreements facilitated repressive intelligence operations throughout the region. Many Chileans, Uruguayans, Paraguayans, Brazilians and Bolivians who had sought refuge in Argentina were captured by their own forces in Argentina. Many activists arrested by the Argentinean police and handed to the DINA then disappeared.

11 Ley de Enjuiciamiento Criminal, L.E. (IV) (1882).

12 Editor’s note: The British proceedings are reported separately in this issue. This report was completed prior to the ultimate decision of the House of Lords.

13 Ley Orgánica del Poder Judicial, L.O.P.J. (1985) [hereinafter LOPJ].

14 Article 23(4) of the LOPJ, supra note 13, provides in pertinent part: “In addition Spanish Courts have jurisdiction over acts committed abroad by Spanish subjects or foreigners abroad if those acts are likely to be considered, according to the Spanish criminal legislation, as any of the following crimes:

a) genocide

b) terrorism

c) piracy and unlawful seizure of aircraft

…

g) and any other which according to international treaties or conventions must be prosecuted in Spain.”

15 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.

16 The crime of torture was only incorporated into the Spanish Criminal Code in 1978, and is subject to the constitutional principle of non-retroactivity of norms that restrict individual rights. The Prosecutor also argued that Spain lacks jurisdiction to try cases of torture committed abroad because the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, Dec. 10, 1984, 1465 UNTS 85 [hereinafter Torture Convention] only entered into force in Spain in 1987.

17 The cases cited by the Prosecutor involved the disappearance of a Spanish priest and a pregnant woman and the murder of a Spanish international civil servant, Carmelo Soria. All three cases were dismissed by the Chilean courts, which applied the law passed by Pinochet’s Government in 1978 granting amnesty to those responsible for crimes committed from September 11, 1973, to March 10, 1978.

18 The pending proceedings concern two complaints against Pinochet for crimes of multiple homicide and kidnapping.

19 The 1993 and 1994 Statutes, respectively, of the International Criminal Tribunals for the former Yugoslavia (Art. 4) and for Rwanda (Art. 2), as well as die 1998 Statute of the International Criminal Court (Art. 6) accept the definition contained in die Genocide Convention. International Tribunal for the Prosecution of Persons Resonsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Statute, Art. 4, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statue]; International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violation of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in die Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, Art. 2, SC Res. 955, annex UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994) [hereinafter ICTR Statute]; Rome Statute of the International Criminal Court, July 17, 1998, Art. 6, UN Doc. A/Conf.183/9*, (visited June 28, 1999) <>), reprinted in 37 ILM 998 (1988) [hereinafter ICC Statute]. For furdier reference, see A. Miaja de la Muela, El genocidio, delito international, IV REDI 363 (1951); 1 A Treatise on International Criminal Law, 64, 532 (M. C. Bassouni and P. Nanda, eds., 1973); M.N. Shaw, Genocide and International Law, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 797 (Y. Dinstein ed., 1989); J. Verhoeven, Le crime de génocide. Originalité et ambiguité, XXIV RBDI, 5 (1991). But cf. see S. Glaser, Droit International Pénal Conventionnel 110 (1970). But, a broader interpretation of die expression “national group” containing “self-genocide” has been used recendy in the framework of die United Nations See Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, Prepared by Mr. B. Whitaker. UN Doc. E/CN.4/Sub.2/1985/6 (1985), and in die practice of some states (Cambodian Genocide Justice Act, Pub. L. No. 103–236, 108 Stat. 486 (Apr. 30,1994). See H. Hannum, International Law and Cambodian Genocide: The Sounds of Silence, 11 HRQ 82 (1989).

20 See the definition of crimes against humanity contained in the ICTY Statute, supra, note 19, Art. 5, and the ICTR Statute, supra note 19, Art. 3, and the ICC Statute, supra note 19, Art. 7. For further reference, see E. Schwelb, Crimes against Humanity, 23 BYIL 178 (1946); E. Zoller, La définition des crimes contre l’humanité, [1993] JDI549; M.C. Bassiouni, “Crimes against Humanity”: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L., 457 (1994).

21 While LOPJ supra note 13, Art. 23(4) establishes jurisdiction over crimes “which according to international treaties or conventions must be prosecuted in Spain,” it is difficult to conclude that any such treaty requires Spain to prosecute these particular cases. The exercise of jurisdiction is compulsory under the Geneva Conventions of 1949, Convention for the Amelioration of die Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287, and 1977 Additional Protocols, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 609 [hereinafter Protocol II], regarding international humanitarian law as well as under certain anti-terrorism treaties if the state where the accused is found declines to extradite the accused to another country obliged or entided to exercise jurisdiction.

22 See A. Remiro Brotons, El proceso a Pinochet, 67 Politica Exterior 43 (1999).

23 The crime of torture was established in the 1971 Criminal Code (Art. 204 bis) by the Law 3/1978, July 17th; it is currendy contained in Articles 173–77 of the 1995 Criminal Code.

24 See Article 5 of die Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, at 71 (1948), Article 3 common to the four Geneva Conventions of 1949, supra note 21, Article 3 of the European Convention on Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221, and Article 7 of the International Covenant on Civil and Political Rights Dec. 16, 1966, 999 UNTS 171.

25 The Preamble of the Statute of the International Criminal Court affirms the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes. See ICC Statute, supra note 19.