Lawyers debate whether the reform of Article 23.4 of the Organic Law of the Judiciary follows the Constitution. Judge Fernando Andreu has been the first to raise an issue of constitutional reform of universal justice.
QUESTIONED Judges Fernando Andreu of the National Court and Pedraz have been the first to question the reform of universal justice. Andreu has arisen, the parties of the case on the genocide in Rwanda, the possibility of submitting a question of unconstitutionality. Meanwhile, Pedraz manager? Couso case?, Has decided to keep open its investigation and has said that the obligation to prosecute war crimes on the Fourth Geneva Convention prevails over any national law.
The latest reform of universal justice has come surrounded by controversy. Leaving aside the arguments about the appropriateness of this reform or the extent of universal justice in Spain, lawyers now debate whether the changes to the Organic Law 1/2014, of 13 March, amending Law 6/1985 of 1 July, the Judiciary (Judiciary Act) or does not meet the Spanish Constitution.
The main questions that have already put on the table judges Fernando Andreu of the National Court and Pedraz, focus on the possible breach of international treaties on the limitation of indictable offenses and the possible violation of the separation of powers.
To Amparo Martínez, Professor of Criminal Law at IE University, the latter case is essential. “The obligation that appears only in the transitional provision of the Basic Law, declaring the dismissal of lawsuits pending until compliance with the requirements of the reform is not accredited, is unacceptable and does not respect the principle of separation of powers” .
Transitional provision Meanwhile, Bernardo del Rosal, Professor of Criminal Law and Clifford Chance, believes that “the legislature has a wide margin of action and has every right to issue procedural rules, although it is certainly not common do it the way it has been done in the transitional provision of the new law. “
That said, the professor says “yes you could argue about whether the rule is reasonable or not on the issue of dismissals. Perhaps it would have been more appropriate for the legislature requested the judges with open issues that will verify if their causes were suitable or no reform and if not, who would dismiss the process. however, has done the opposite. calls is discontinued first and then to be investigated. “
Regarding the possible breach of international treaties, the opinions of experts also differ. Del Rosal ensures that nothing prevents the new articulated its obligations under these agreements are met.
“The Constitution makes a clear call to respect the provisions of the treaties signed by Spain and this is reflected in paragraph p) of the new item. If this had not been included, yes that could have raised doubts about the constitutionality of the reform. “
But Martinez is convinced that “the restrictions and limits imposed reform against possible prosecution of certain offenses committed outside our borders-genocide, crimes against humanity and violations against protected persons and property in the event of armed conflict- violate the obligations assumed by Spain. “
New offenses Another issue is the new offenses introduced by the legislature in the organic law. “It is true that the reform has restricted the scope of universal justice in certain respects. Yet it has also expanded the range of crimes committed abroad can pursue in Spain as in the cases of corruption among individuals or corruption of foreign officials, “says the counsel of Clifford Chance.
However, IE University professor, says the reform is wrong to expand the list of prosecutable crimes, and they ask the treaties signed by Spain that our state is applying the principle of territoriality to prosecute acts committed in its territory and active personality to investigate crimes committed by their nationals outside their borders.
Finally, Amparo Martinez also looks critically at that crimes can not be prosecuted ex officio by the judges, and also disappears popular action.
“The new rule specifies that the offenses to which paragraphs 3 and 4 shall only be prosecuted upon filing of a complaint by the victim or by the prosecution. This means leaving out the judges and prevent the action of the popular accusation which is enshrined in Article 125 of the Constitution. “
Open international causes in Spain GENOCIDE IN GUATEMALA Rigoberta Menchú Complaint against eight former senior Guatemalan charges of genocide, terrorism and torture. The investigation is limited to the facts that affected Spanish citizens.
MURDER CARMELO SORIA Processing responsible for seven former Chilean National Intelligence Directorate for his alleged involvement in the kidnapping and murder of Spanish diplomat Carmelo Soria.
EVENT COUSO The family of Spanish cameraman Jose Couso, who died in Iraq on April 8, 2003 , filed a lawsuit in the High Court against three U.S. soldiers.
IN THE SAHARA genocide Judge Pablo Ruz investigates 28 army officers in Algeria and security officials and members of the Polisario Front for the genocide and the disappearance of Sahrawi citizens and dissidents.
GENOCIDE IN RWANDA Judge Fernando Andreu admitted the complaint against 69 senior officials of Rwanda for the murder of nine Spanish and four million Rwandans between 1994 and 2000.
CIA FLIGHTS Research on possible secret stopovers in Spain of CIA planes suspected terrorist detainees.
HOLOCAUST Judge Ismael Moreno declared admissible in 2008, the Spanish complaint filed by Holocaust victims against four SS guards residing U.S..
REFUGEE CAMP ASHRAF Judge Andreu has sent letters rogatory to Iraq to find out if the justice of this country are investigating an attack by the Iraqi army in the field of Iranian refugees in Ashraf.
GENOCIDE IN TIBET Judge Ismael Moreno investigates a complaint against five former leaders Chinese Communists, of course genocide in Tibet in the 1980s and 1990s.
FALUN GONG The Supreme Court ordered the National Research death, between 199 and 2002, supporters of the practice of Falun Gong.
ATTACK ON FREEDOM FLEET Two Spanish aid workers have filed a complaint for war crimes and crimes against humanity against Israeli authorities for assault against a flotilla to Gaza that left nine dead.
MURDER OF IGNACIO ELLACURÍA Judge Eloy Velasco admitted a complaint against fourteen members of the Army of El Salvador allegedly involved in the murder of six Jesuits, among whom was Ignacio Ellacurfa, and two employees of the Central American University.