Dear Mr. Griñán,
The International Campaign for Tibet (ICT) welcomed the public statement made by the spokesperson of the Spanish Socialist Workers’ Party (PSOE), Ms. Soraya Rodriguez, on March 4, announcing that it would appeal to the Constitutional Court against a bill limiting the power of the judiciary to investigate and prosecute serious crimes under international law. This legislative move by the Spanish government has damaged Spain’s international credibility in Europe as it contravenes both the Spanish Constitution and international law.[1]
We note however that so far your Party has not taken action, and we are concerned that the time window for such an appeal to the Constitutional Court is limited.
The International Campaign for Tibet, together with many Spanish citizens, lawyers, and expert NGOs, is deeply concerned about the negative consequences of this law reform and the precedent set by Spain. One hundred and twenty-two non-governmental organisations signed a statement calling on the Spanish Parliament to uphold its international legal commitments and ensure that any reforms to its universal jurisdiction laws are consistent with international law.[2]
Both the Spanish Congress and Senate voted in favour of the reform of Article 23.4 of the Ley Orgánica del Poder Judicial(Organic Law of the Judicial Branch), which forms the basis of universal jurisdiction in Spain.
The principle of universal jurisdiction allows national courts to try cases of the most serious crimes, including war crimes, torture, enforced disappearance, regardless of where they were committed and the nationality of the perpetrator and/or the victim. The current reform in Spain would restrict the cases capable of being tried in the Spanish courts to those involving defendants who are Spanish nationals and/or habitually resident in Spain. The consequence will be that international crimes will go unpunished and impunity will prevail. Already there are at least two cases in which the negative effects of the new law have been evident, with the release of suspected drug traffickers from Egypt[3] and another concerning an extradition request from Argentina on the grounds of torture[4], which were not possible to prosecute due to the reform of the law.
As the NGOs point out, the changes to the law violate several key international treaties ratified by Spain, such as the Geneva Conventions of 1949[5] or the Rome Statute of the International Criminal Court[6], which all enshrine the principle of “prosecute or extradite”.
We believe too there is widespread concern about comments by Spanish Foreign Affairs Minister, Mr. José Manuel Garcia Magallo, who on April 13 defined universal jurisdiction, in relation to the recent Tibet case in Spain, as a “pointless” exercise, which would not put an end to international impunity but rather create international conflicts for Spain.[7] This way the Minister is recanting the principled importance of an internationally recognized doctrine.
A further issue of concern regards the retroactive nature of the new law, as it would apply not only to future investigations but also to current ones, meaning that all current cases on the basis of universal jurisdiction will be terminated if they do not comply with the new requirements. This goes against the principle of separation of powers in a democracy, as it goes beyond the legislative authority of Parliament by summarily closing all the investigations. Any decision to close a case should be taken by the courts on a case-by-case basis.
As your spokesperson stated, the only possibility of reversing this damaging trend is for the Socialist Party to launch an appeal to the Spanish Constitutional Court to declare its illegality, which needs to be signed by at least 50 members of the Spanish Parliament.
As the law was published in the Spanish Official Journal (Boletín Oficial del Estado) on March 14, ICT urges you to ensure that the PSOE honours its promise and lives up to its commitment to international justice by taking this action immediately and submit the appeal to the Constitutional Court before June 14.
Yours sincerely,
Vincent Metten
EU Policy Director
