The Spanish Constitutional Tribunal's Decision in Guatemalan Generals: Unconditional Universality is Back

Abstract

On 26 September 2005, the Spanish Constitutional Tribunal reversed the decisions of the Audiencia Nacional and the High Court (Tribunal Supremo) in the case of the Guatemalan Generals. According to the two judicial bodies, the exercise of universal jurisdiction over international crimes required a link between the crime or the victims or the offender and Spain, such as the presence of the offender on Spanish territory or the Spanish nationality of the victims. The Constitutional Tribunal held, instead, that these requirements are contrary to the principle pro actione, i.e. they result in an unjustified restriction of the constitutional right to effective judicial protection. The Tribunal also clarified that universal jurisdiction, whose aim is fighting impunity, does not require any link other than the universal character of the values protected by the provisions criminalizing the most serious violations of international law. The presence of the accused in Spain is merely a condition for trial, not a distinct ground of jurisdiction; in other words, the accused must be in Spain for the trial to begin, but jurisdiction may be exercised even in his absence, for example for the issuance of a request for extradition. The only condition to which the exercise of universal jurisdiction is subject is that the state of the locus commissi delicti is not already investigating and prosecuting the case effectively.