El País, 23rd January 2014 (Front Cover story)
SPAIN FORCES AN EXPRESS REFORM TO DROP THE LAWSUIT AGAINST CHINESE LEADERSHIP*
THE POPULAR PARTY (PP) PRESENTS A BILL LIMITING UNIVERSAL JURISDICTION
MADRID WISHES TO AVOID CONFLICT CAUSED BY AN INVESTIGATION INTO GENOCID
*Translation by the Comité de Apoyo al Tíbet (CAT). Original Spanish here – http://politica.elpais.com/
Fernando García / Miguel Gónzalez, Madrid
There’s no touching the Chinese giant! The Spanish government wants to avoid at all costs a diplomatic conflict with Beijing and is not prepared for judicial investigations to spoil economic relations with what is today the world’s number one commercial power. Which is why it has secretly set in motion an express legal reform aimed at closing as soon as possible the case on genocide in Tibet under investigation in Spain’s Special Court (Audiencia Nacional), which has ordered the arrest of five members of the Communist Party leadership, including former president Jiang Zemin and former prime minister Li Peng.
To speed up this reform, which drastically limits the scope of so-called universal jurisdiction, an unusual procedure has been resorted to: presentation of a bill by the Popular Group in the Spanish Congress. Initially, the Government intended to include this modification in the reform to the LOPJ (Organic Law of Judicial Power) that the Justice Ministry is preparing, but this would involve asking for reports from the General Council of the Judiciary, the State Council or the Fiscal Council, which would delay the process for months. By turning to the Popular Party, the Government has prevented the reform from having to pass through the Cabinet, thereby enabling it to skip the report stage, and if the measure of urgency is applied, it can be put into effect within two months. The various groups that make up the Government do not usually present bills, as legislative initiatives are presumed to correspond to the Government. Indeed, the PP had not presented any bills during this term of office. Which is why this is all the more surprising.
In 2009 socialists and populists reached an agreement on an initial limitation to universal jurisdiction, in order to avert diplomatic friction. On that occasion they likewise used the back door, submitting an amendment to the law drawn up by the Judicial Office and being processed by the Congress. Now, with an absolute majority, the PP has not even sought out the complicity of the Socialist Party.
The 2009 reform, which is still in effect, left a door open to the Audiencia Nacional to investigate crimes committed abroad when the accused was on Spanish soil or there were Spanish victims or “a connecting link with Spain”. It is this door that they now wish to close, eliminating any ambiguity.
The proposal that the PP presented last Monday in the Congress register specifies that Spanish judges may only investigate crimes of genocide and crimes against humanity, like that in Tibet, when “the proceedings are directed against a Spaniard or foreign citizen who habitually resides in Spain or is on Spanish soil and whose extradition would be denied by the Spanish authorities”. As the accused in the lawsuit being investigated by the judge Ismael Moreno are Chinese citizens and none of them are on Spanish soil, to the best of anyone’s knowledge, it would not be possible to investigate this case. The reform also states clearly that crimes of so-called universal jurisdiction will only be “pursuable in Spain after a lawsuit is lodged by the person aggrieved or by the public prosecution”. Popular action, established in article 125 of the Spanish Constitution, is excluded.
The lawsuit for Tibetan genocide was never lodged by the public prosecution, but by popular action (exercised by two Tibet support foundations) and private accusation (the nationalised Spanish citizen Thubten Wangchen). Under the new reform, the former would not be able to denounce.
There would still be one remaining chance for keeping the investigation open: if the crime was reclassified from genocide to torture, as in this case the nationality of the victim is taken into account. But the reform demands that “the victim have Spanish nationality when the crime is committed”; a requirement that the abovementioned Thubten Wangchen does not meet.
Although criminal laws favourable to the defendant are by nature retroactive, with the result that the reform would imply shelving the lawsuits against the Chinese Communist Party leadership, the PP wished to resolve any doubts that might be put forward by the judges and has included in the text an unheard-of transitory provision that states emphatically: “The lawsuits under investigation when this law goes into effect […] will be stayed until fulfilment of the requirements established therein is accredited”. In other words: first, the investigations are stayed, and then, against all logic, their possible reopening is examined. Similar to current legislation, the reform imposes the obligation to stay a case when the crime is being investigated in the country where it was committed; however, unlike the previous law, it grants the Criminal Court of the Supreme Court the power to decide whether a state has the will or the capacity to pursue that crime. One of the most surprising aspects of the reform is the unequal treatment it applies to different crimes. For example, it is sufficient for there to be a Spanish victim for a crime of terrorism or piracy committed abroad to be investigated, yet the nationality of the victim is irrelevant in a crime of genocide. On the other hand, in order for cases of torture and forced disappearances to be investigated, the victim must have had Spanish nationality when the acts were committed, and furthermore, the accused must be on Spanish soil. A discrimination that makes a mockery of the right to judicial protection.
REQUIREMENTS FOR OPENING INVESTIGATIONS:
- GENOCIDE. That the alleged perpetrator is Spanish, or a foreigner either resident or currently in Spain and whose extradition has been refused.
- TERRORISM. That the alleged perpetrator is Spanish or a foreigner resident in Spain, or the crime has been committed by a person with a house in Spain, or there are Spanish victims, or the crime has been committed to condition a Spanish authority, or the objective is a EU institution with a base in Spain, a ship or plane flying a Spanish flag, or an official Spanish installation (embassy or consulate).
- TORTURE. That the alleged perpetrator is Spanish, or the victim was Spanish when the crime was committed and the person accused of the crime is in Spain.
- PIRACY. That the alleged perpetrator is Spanish, or the victim is either a Spanish citizen or a ship flying a Spanish flag.
- CRIMES AGAINST THE SEXUAL FREEDOM OF MINORS AND VIOLENCE AGAINST WOMEN. That the alleged perpetrator is Spanish or a foreign resident in Spain, or the victim is Spanish or a foreign resident in Spain, and on condition that the accused is also in Spain.
- HUMAN TRAFFICKING. That the alleged perpetrator is Spanish or a foreigner or legal person resident in Spain, or the victim is Spanish.
- CORRUPTION. That the alleged perpetrator is Spanish, or a foreign resident in Spain, or member of a society or person domiciled in Spain.
- FORCED DISAPPEARANCES. That the alleged perpetrator is Spanish, or the victim was Spanish when the crime was committed, and on condition that the accused is in Spain.