The Flaws of the Scilingo Judgment

Abstract

According to the author, the Audiencia Nacional violated the principle of nullum crimen, nulla poena sine praevia lege, in that it applied to the offences attributed to the accused Spanish rules on crimes against humanity which were not in force at the time of the events in question. She holds the view that while the court was correct to classify the acts in question as crimes against humanity, it was wrong to affirm the broad notion of genocide which had been relied upon by the investigating judge in order to initiate proceedings, because, at that stage, the Spanish provision on crimes against humanity was not yet in force. The author also argues that while it may be permissible for international criminal courts to apply a loose notion of the nullum crimen principle, this is not permissible for the domestic courts of a state, such as Spain, where the Constitution lays down a strict notion of the principle of legality and requires that criminal provisions exist before the facts occur, and that they must be written, specific and detailed.