The parliamentary group in Congress recently, introducing a bill to amend the Law on Universal Jurisdiction (persecution by the Spanish justice for crimes against humanity, drug trafficking, terrorism, etc.), has raised one of the most intense debates in recent times in the Spanish society. Victims' organizations, national and international jurists and even the UN Rapporteur for Truth, Justice and Reparation, visiting Spain, have strongly criticized this initiative, which is no legal necessity and opportunity counterproductive.
The fact is that, wanting to tackle a political and economic problem, have generated a real problem of transnational scope, if they are not remedied, as are Spain 's international obligations in the prosecution of organized crime. Imagine the following scenario. A boat with 10 tonnes of cocaine merchandise, delivers a Colombian cartel to Al Qaeda, in the Atlantic, with a final destination unknown, FOC and crew about 50 people of various nationalities. Police from different countries, alerted, detects and deals in international waters.
Spain, until the onset of this project, respond with a swift and decisive police action, transporting boat, people and cargo to the first Spanish port and the judge ordered the detention, seizure and national and international prosecution of all network components. The Spanish and international society would be protected and repaired by the prosecution. And this, because the Spanish judges could hear certain crimes regardless of where they occur and the nationality of offenders or victims. The universal jurisdiction extended to international crimes and other transnational crimes.
The first because being genocide, war and against humanity, affecting the consciousness of every human being. Victims are universal and universal is the obligation to prosecute and try the suspect if he were available to the Spanish justice. The research could be concurrent and that meant an enriching exercise jurisdiction, evidentiary material that accumulated in a "common fund" that was delivered to the country in the best position to judge.
The latter because they represent the most serious and dangerous forms of organized crime and its universal pursuit addresses the need to enhance research concurrent with other countries. In a world where there are hardly any boundaries and act in a coordinated criminal organizations and harmful effects in multiple countries form, combining the efforts of judicial inquiry, overcoming the special interests, leading to safety and efficacy, as well as crimes first group, combat and eradicate impunity, making the world safer. In 2009, universal jurisdiction lost its " universality ". The new law established requirements concerning the nationality of the victims, links with Spain were required and that the facts were not investigated by an international country or other competent tribunal, because in that case the Spanish justice should refrain from doing so. Selectively, both legislators and legal practitioners implement reform became the first group of offenses and the traditional approach is followed with the second, so that the essence of the principle and purpose were blurred.
Finally, legislative reform proposes that the Popular Party now increases exponentially aggression to universal jurisdiction, to the point of canceling any trace of it, and making local subsidiary, based almost exclusively on the Spanish nationality of the suspect and linked to the Hispanic territory. Moreover, a Spanish court would have vetoed investigate these facts if other states were doing it, being impossible, contrary to what happened before, or match to complement research on them. But, in addition, the proposal prevents access to justice for the popular accusation (associations of victims, citizens, etc.), eliminating the more belligerent in the promotion and research of this type of crime actor and, of course, forcing close all ongoing investigations.
In the proposed case, consciously or unconsciously, advocates of reform have given way to uncertainty principle at the expense of the principle of legal certainty, to the point that the Spanish judge would have to refrain from investigating serious cases of the human trafficking, drugs and terrorism, simply because Spain has repudiated the principle that all States to cooperate in the prosecution of crimes against humanity committed transnationally and whose fulfillment makes us worthy of international recognition for contributing to the world was a little more fair and less impunity.
Dolores Delgado prosecutor of the Audiencia Nacional
Tags: principle, Uncertainty