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XII. Spain

Article 23.4 of the Organic Law 6/1985,380 confers on Spanish courts universal jurisdiction over genocide and any offense that Spain is obliged to prosecute under international treaties, including the Convention against Torture381 and the Geneva Conventions and their first additional protocol.382  Crimes against humanity have been criminalized under the Spanish Criminal Code383 since 2004.384 Cases initiated in Spain based on universal jurisdiction include the case of former Chilean dictator Augusto Pinochet, which started when a Spanish investigative judge opened an investigation into Pinochet under Spain’s universal jurisdiction laws and subsequently asked for Pinochet’s arrest and extradition from the United Kingdom in 1998.385 Although Pinochet was not extradited, the case was a starting point for subsequent universal jurisdiction cases in Spain.386 Since Pinochet, completed cases include that against former Peruvian President Alberto Fujimori, and the case of Argentine military officer Adolfo Scilingo, who was convicted and sentenced by the Spanish National Court to 640 years of imprisonment for attempted genocide and other crimes committed during Argentina’s “dirty war” in the 1970s.387 Ongoing cases concern events in Tibet, Rwanda, Guatemala, and the case against Ricardo Miguel Cavallo, an Argentine military officer whose trial is scheduled to start later in 2006.388

A.  Jurisdictional Challenges

1.   Presence

Article 23.4 of the Organic Law 6/1985 does not require the suspect’s presence for the purpose of opening an investigation or for charging the perpetrator. Presence is required for the trial phase as trials in absentia are generally not permitted, but presence for trial can be achieved through extradition.389 The ruling of the Constitutional Court in the “Guatemala” case (see below) on the scope of article 23.4 held that the physical presence of the suspect is not required to initiate an investigation based on universal jurisdiction.390

2.   Immunities

Spanish law recognizes immunity in accordance with the provisions of public international law.391  Spanish courts have also held that amnesties passed in the territorial state will not be binding on Spanish courts exercising universal jurisdiction.392

3.   Limitation

Article 131.4 of the Spanish Criminal Code expressly excludes crimes against humanity, genocide, and war crimes from statutes of limitations. For other serious crimes, the statute of limitations varies from three to twenty years according to the sentence the crime carries.393

4.   Subsidiarity

The Constitutional Court in Guatemalaconcluded that territorial courts and an international court have priority over Spanish courts exercising universal jurisdiction. However, it also held that universal jurisdiction could be exercised by Spanish courts where a party to the case submits evidence demonstrating that courts in the territorial state are unwilling or unable to effectively investigate and prosecute the crimes referred to in the complaint.394  The National Court in the “Tibetan Genocide” case emphasized that Spain could exercise universal jurisdiction over genocide committed in Tibet in the absence of a “national connection” with Spain and ordered the investigative judge to open an investigation.395  Hence, it is not necessary for a complainant or prosecutor to show a link between the prosecution of a universal jurisdiction crime and Spain’s national interest.

B. Practical Arrangements for the Exercise of Universal Jurisdiction in Spain

1.   Special departments in charge of the investigation and prosecution of international crimes

There is no special unit that deals exclusively with international crimes in Spain. Crimes are investigated by the judicial police under the supervision of an investigative judge. The role of police units in universal jurisdiction cases has been marginal, since most of the evidence and witnesses have been provided by NGOs or in public documents.396 There have been no investigations abroad, and it has not been considered necessary for the police or investigative judge to collect evidence abroad. 

2.   Notification 

All cases have thus far been raised through filings by victims or NGOs. Article 125 of the Spanish Constitution, the Organic Law of the Judiciary and the Criminal Procedural Code all provide expressly for the acción popular,397 enabling Spanish citizens with an interest in a particular case or acting on behalf of a victim to bring private prosecutions.  The permissibility of the acción popular has been crucial in notifying authorities about international crimes, and has enabled the filing of cases which ultimately resulted in conviction.398

Immigration authorities screen asylum seekers for their potential involvement in criminal activities, but have not referred cases to judicial authorities.

3.   Decision to investigate and prosecute

An investigative judge is seized of a case either through a referral by the prosecution, or by an acción popular.399  In the past, where the investigative judge was seized of a case by third parties exercising the acción popular, the national prosecution office often opposed the investigation and appealed to the High Court (Audencia Nacional).400 However, provided that the third partiescan convince the investigative judge that a valid case exists, the investigation may proceed.401

Subject to proceedings brought through an acción popular, the national prosecution office decides, on the basis of the evidence collected by the investigative judge in the preliminary investigation,402 whether to prosecute and reports to the attorney general, who is appointed by the national government.  The position of the national prosecution office concerning universal jurisdiction cases generally reflects the position of the national government.  According to a Spanish official, the former government was particularly opposed to prosecution of crimes committed in Latin America as it had traditionally strong (economic) links to the countries affected by the investigations.403 Following the 2005 decision of the Constitutional Court in the Guatemala case, the attorney general is currently working on establishing guidelines on the exercise of universal jurisdiction by the prosecution.404

4.   Investigation

The investigative judge is in charge of the investigation and is assisted, where necessary, by the “judicial police.”  Once the complaint is filed, the investigating judge takes the necessary steps to process the complaint, including giving specific orders to the police, hearing witnesses, requesting documents or sending rogatory letters, the latter being particularly important in cases concerning crimes committed in Chile and Argentina.405

C. Cooperation

1.   International cooperation mechanisms

Use is made of the EU network and Interpol and both are considered to be necessary for the exchange of information.  However, cases have not yet required Spanish investigators or judges to conduct investigations in the territorial state, as all necessary evidence was considered to be available elsewhere.  In the case against Cavallo, Spanish and Mexican authorities successfully cooperated to obtain the extradition of Cavallo from Mexico to Spain406 and, in the case of Scilingo, authorities relied on the “Treaty on Extradition and Judicial Assistance in Criminal Matters”407 signed by Spain and Argentina in 1987 as well as article 9 of the Convention against Torture.408  This allowed the Spanish court to examine witnesses in Buenos Aires via video link from Madrid.409

D. Role and Rights of Victims and Witnesses

1.   Victims—Compensation and legal representation

There is no limit on compensation, but punitive damages are not permitted. The convicted perpetrator is also responsible for compensation and where he or she is unable to pay, the state will intervene (although it has only done so in cases involving terrorism). NGOs generally act as the contact points and sources of support for victims. All victims so far have been represented by NGOs, as legal aid is not available for acciónes populares.410

In February 2005, parties involved in the prosecution of Pinochet secured an $8 million pension fund for his victims. Previously, in rulings of October 19 and December 10, 1998, the Central Investigative Court No. 5 had ordered the freezing of Pinochet’s funds around the world, so as to enable victims to receive compensation in the event of his conviction. On February 25, 2005, the plaintiffs and the Riggs Bank, and two of the latter’s board members, settled. While criminal and civil actions against Riggs Bank were terminated, proceedings against Pinochet for concealment of assets continue.411

As detailed above, victims can participate in proceedings either as civil claimants or by bringing a private prosecution.

2.   Witnesses

Different methods of testifying, including testimonies via video-link, written statements and personal oral statements are permitted under Spanish law. In the trial of Scilingo, witnesses testified in person during trial as well as via video-link.412 In any case, the defendant lawyer must be permitted to cross examine witnesses and other evidence.413

Legal provisions such as those maintaining the anonymity of witnesses have been widely used, mainly in cases concerning terrorism, organized crime and gender violence.414 So far, protection has not posed a problem during investigations as no threats have been reported and no investigations have been carried out abroad by Spanish investigators. NGOs provide care and support for witnesses during all stages of the investigation and the trial as this is unavailable elsewhere.

E. Fair Investigation and Trial

Equality of arms is guaranteed as both parties can submit evidence, both parties must be represented, and the court must always give reasons for its decisions concerning the acceptance or the refusal of proposed evidence. Further, the investigative judge is required to investigate inculpatory and exculpatory evidence.  The defense lawyer must be able to challenge all evidence presented by the prosecution.415 Representation of the defendant is guaranteed by providing legal aid when the accused is not able to pay for it.416 

[380] Organic Law 6/1985, of 1 July, of the Judicial Power (Ley Organica 6/1985, de 1 de julio, del Poder Judicial), as amended by Organic Law 11/1999, art. 23.4 (a) and (g). For a Spanish version of the relevant article see [online] (retrieved April 2006).

[381]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987, ratified by Spain on October 21, 1987.

[382] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force October 21, 1950. Spain ratified the four Geneva Conventions on August 4, 1952.Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force December 7, 1978, ratified by Spain on June 8, 1977, April 21, 1989.

[383] Spanish Penal Code 1995 (Código Penal), art. 607 bis. The Code is available, in Spanish, online at (retrieved May 2006).

[384]The High Court (Audencia Nacional) held in the case of Adolfo Scilingo that crimes against humanity may be prosecuted even if they were committed before the amendment of the Criminal Code: see Giulia Pinazauti, “An Instance of Reasonable Universality: The Scilingo Case,” Journal of International Criminal Justice, 3 (2003), p. 1092.

[385] For an English version of the writ of acceptance see [online] (retrieved April 2006).

[386] As this report confines itself to cases after 2001, the Pinochet case will only be referred to where related proceedings occurred after 2001.  For more detailed information see: Human Rights Watch, “The Pinochet Prosecution” (1998), [online], and Amnesty International, “Universal Jurisdiction Cases,” [online] (retrieved April 2006).

[387] National Court, Criminal Chamber, April 19, 2005, judgment available, in Spanish, online at (retrieved April 2006).

[388]See, “Prosecutors charge former Argentine officer with genocide,” El Pais (English edition), January 12, 2006.

[389]Order (auto) of November  5, 1998 (no. 1998/22605) of the High Court (Audiencia Nacional) in the proceedings against Augusto Pinochet.  Spanish courts successfully secured a suspect’s extradition from Mexico to ensure his presence at trial in the case of Argentine national Miguel Cavallo. The decision of the Mexican Supreme Court to extradite Cavallo is available, in Spanish, online at (retrieved April 2006). See also “Argentine faces Spanish justice,” BBC News, June 29, 2003, [online]  (retrieved April 2006).

[390]Constitutional Court, Second Chamber, STC 237/2005, September 26, 2005, available, in Spanish, online at (retrieved April 2006).

[391]Organic Law6/1985 of 1 July, of the Judicial Power, art. 21 (2).

[392] Spain, Audencia Nacional, Third Chamber, Sentencia Num. 16/2005, 19 April 2005, Part III, section 6, available online at (retrieved May 2006).

[393] Criminal Code, art. 131.

[394] The decision of the Constitutional Court in the Guatemala case of September 26, 2005, was discussed in detail in National Court, 4th Section of the Criminal Chamber, Roll of Appeal No 196/05, Preliminary Proceedings on January 10, 2006, concerning a further universal jurisdiction case, the Tibetan Genocide case, (proceedings available online, in Spanish, at, retrieved April 2006). The National Court allowed the appeal, taking into account, inter alia, that the complainants could adduce some evidence as to the failure of Chinese authorities to investigate the crimes and that the events complained of are outside the jurisdiction of the International Criminal Court.

[395]National Court, 4th Section of the Criminal Chamber, Roll of Appeal No 196/05, Preliminary Proceedings, January 10, 2006.

[396]Human Rights Watch telephone interview with Spanish official, September 14, 2005.

[397] Constitution of Spain, art. 125, Organic Law 6/1985, art. 20.3, Code of Criminal Procedure, sections 101 and 270.

[398] Human Rights Watch telephone interview with Spanish official, January 17, 2006.

[399]Spanish Constitution of 1987, art. 124–127.

[400] In all cases concerning Argentina and Chile, the prosecution submitted several appeals against judicial decisions affirming jurisdiction. Human Rights Watch telephone interview with Spanish official, September 14, 2005.

[401]The National Court in the Tibetan Genocide case emphasized the right of third parties with an interest in the case to rely on acción popular in respect of universal jurisdiction proceedings, taking into account that one issue to decide in each case would be whether the party in question is abusing the law in approaching Spanish courts. The court held that in the present case, the applicants (the Committee to Support Tibet) did not abuse the provision of the acción popular, and ordered the investigative judge to investigate the crimes.

[402] Code of Criminal Procedure of 1882 (Ley de Enjuiciamiento Criminal), section 229.

[403] Human Rights Watch telephone interview with Spanish official, September 14, 2005.

[404] Human Rights Watch telephone interview with Spanish official, January 17, 2006.

[405]For some of the issues involved see Equipo Nizkor, “Witnesses located in Buenos Aires began to give their testimony by video-conference in the trial of Lieutenant Commander Scilingo,” [online] (retrieved May 2006).

[406]On June 11, 2003, the Mexican Supreme Court ruled that Cavallo could be extradited on charges of genocide and terrorism, but not on charges of torture as the crimes of torture allegedly committed by Cavallo were subject to a statute of limitation under Mexican law. The trial against Cavallo is scheduled to start in 2006.  The decision of the Mexican Supreme Court is available, in Spanish, online at (retrieved April 2006). For an introductory comment see (retrieved April 2006). Authorities of both countries relied on the Treaty Concerning Extradition and Mutual assistance in Criminal Matters 1978, Reg./10/18/1980.

[407]Treaty on Extradition and Judicial Assistance in Criminal Matters 1987. 

[408] Article 9 states that “States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of [torture] including the supply of all evidence at their disposal necessary for the proceedings.”

[409]For a detailed account of the challenges involved in requesting legal assistance see:

[410] Human Rights Watch telephone interview with Spanish official, September 14, 2005.

[411]Terence O’Hara, “Allbrittons, Riggs to pay victims of Pinochet,” Washington Post, February 26, 2005, [online] (retrieved April 2006).

[412]For an overview of the issues involved in the testimonies given via video-link see

[413]Human Rights Watch telephone interview with Spanish official, September 14, 2005.

[414]Human Rights Watch telephone interview with Spanish official, September 14, 2005.

[415] Ley Orgánica del Tribunal del Jurado, May 22, 1995, art. 31.

[416] Spanish Constitution, article 24-2, refers to the defendant’s right to a fair trial. Legal aid is provided by the Legal Aid Law 1996 (Ley 1/1996, de 10 de enero 1996 de Assistencia Juridíca Gratuit).

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