In October 2018, the Central Criminal Court of the Spanish National Court (Audiencia Nacional) rejected the admission of two international rogatory commissions requested by the Argentinian courts in relation to the investigation of crimes against humanity. The alleged crimes relate to torture, murder, forced disappearance of persons and abduction of minors committed in Spain during the Francoist regime in the period between 15 July 1936 and 15 June 1977. These crimes are being investigated in Argentina under the principle of universal jurisdiction. This post analyses the legal arguments posed by the judicial authorities in Argentina and Spain to admit or reject the investigation into crimes against humanity committed during Franco’s dictatorship.
Context of the claim
The alleged crimes committed during the Spanish Civil War and the dictatorial regime of General Franco have never been criminally investigated by the Spanish judicial system. In 2008, Spanish Judge Baltasar Garzón decided to initiate a criminal procedure against the leading figures of the Franco regime between 1936 and 1952 through the decision Muñoz Sánchez v Franco Bahamonde, Spanish National Court (16 October 2008). In this decision, Judge Garzón argued that crimes committed after 17 July 1936 were already considered to be crimes against the Laws and Customs of War and Laws of Humanity, as were identified by the Multinational Commission on Responsibilities gathered in Paris on 29 March 1919. However, the Spanish Supreme Court overturned this decision for procedural reasons and for an unfair interpretation of the Amnesty Law.
On 14 April 2010, a criminal claim for genocide and crimes against humanity was filed in the Argentinian Federal Chamber to investigate Franco-era crimes under the principle of universal jurisdiction. Since the claim was launched in 2010, almost two hundred complaints have been filed by victims and human rights’ associations, including the Association for the Recovery of the Historical Memory. Among these actions, the Argentinian courts investigate the role played by Mr. Rodolfo Martín Villa, a senior official in Franco’s regime and former Spanish Minister in the transitional period, in several crimes of homicide. The courts also investigate the assassination in 1936 of the Spanish poet Federico García Lorca. The Argentinian case was opened after several decades of activism from victims’ associations who sought justice and accountability in their home country without success.
Universal jurisdiction in the Argentinian courts
In 2010, due to the lack of success in the Spanish courts, victims’ associations filed a complaint in Argentina for the crimes committed during the Spanish dictatorship. In particular, many relatives of the victims of the Spanish dictatorship went into exile to Argentina, where they currently live. The case has been identified as the ‘Argentinian Complaint’ (querella argentina) and is being instructed by Judge María Servini de Cubría in the Federal Criminal and Correctional Court No.1 in Buenos Aires. The Argentinian Complaint represents the only case which has been ever opened to prosecute Franco’s crimes. This case is based on the exercise of universal jurisdiction contemplated in art. 118 of the Constitution of the Argentine Nation and the Law 26.200 on the Implementation of the Rome Statute. In its judgment, the Federal Supreme Court stated that the principle of universal jurisdiction becomes operative when a State has not exercised its sovereignty and, therefore, the remaining states of the international community are enabled to do so (subsidiarity). Along these procedures, the Argentinian Court has issued several rogatory commissions requesting the assistance of the Spanish judicial authorities for the examination of documents and taking statements from the involved parties. The judicial cooperation between both countries is regulated under the Treaty on Extradition and Judicial Assistance in Criminal Matters between Spain and Argentina (3 March 1987). Nevertheless, the Spanish authorities have systematically rejected the requested assistance.
The legal arguments of the Spanish court to reject the judicial assistance
The rejection of the Spanish judicial authorities to give effect to the rogatory commissions is based on three legal obstacles: the principle of legality and the prohibition of retroactivity; the validity of the Spanish Amnesty Law; and the statute of limitation of crimes. The jurisprudence of the Supreme Court has followed a strict interpretation of the principle of legality which affirms that international law has to be incorporated into domestic law in accordance with the Spanish Constitution. In particular, Article 9(3) of the Constitution prohibits the retroactive application of criminal law provisions with adverse effects on the accused party. According to the Spanish court, this requirement is also applicable to international criminal law, whether in the form of treaty law or customary law. On the other hand, the Supreme Court has acknowledged the protection offered by human rights treaties and the right to effective remedies of victims, which are also applicable to Spain as a State party to the International Covenant on Civil and Political Rights and the European Convention on Human Rights. However, the court argued that there was a difference between directly applying international legal provisions in Spain, whether treaty law or customary law, and applying them in order to allow the prosecution of international crimes with a retroactive effect. In this regard, the Supreme Court seemed to question whether international law had codified crimes against humanity when these actions were committed.
The second legal obstacle to accede to the petition of the Argentinian courts rests on the validity of the Spanish Amnesty Law of 1977. In relation to the Amnesty Law the Supreme Court has emphasized its essential role in the transitional period to the democracy in Spain. This law predates the Constitution, and it is arguably contrary to the constitutional principles of justice and judicial remedy. Moreover, it does not comply with international legal standards establishing victims’ rights to justice, truth, and reparation. Several human rights supervisory organs have recommended Spain to abrogate the Amnesty Law (Resolution 828 on Enforced Disappearances of the Council of Europe, 26 September 1984 and General Comment No. 20 concerning Article 7 on the Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Human Rights Committee, 10 March 1992) and have also emphasized the non-applicability of statutory limitations to crimes and violations of human rights (Concluding Observation No 5 on Spain, UN Human Rights Committee, 5 January 2009). However, according to the jurisprudence of the Supreme Court, these pronouncements were mere recommendations or observations but not complaints of non-compliance. As a counterargument, Martín-Ortega and Alija Fernández affirm that the Amnesty Law do not affect the jurisdiction of judicial bodies in other countries. In fact, this would fully respect the principle of non bis in idem due to the inexistence of trials or convictions in Spain.
With regard to the statute of limitations, it is well-known that under international law genocide, crimes against humanity and war crimes are not subject to statutory limitations (art. 29 of the Rome Statute of the International Criminal Court). However, the Spanish Supreme Court has interpreted this provision in conjunction with the principle of legality and determined that the imprescriptibility of crimes against humanity could not be applied with retroactive effect. On the contrary, the imprescriptibility of war crimes and crimes against humanity has been regarded by the doctrine and the jurisprudence of national and international courts as a peremptory norm of general international law. For instance, the Military Court of Rome in the Priebke case considered the principle of imprescriptibility of war crimes and crimes against humanity as having jus cogens nature. Moreover, as a matter of international law, the application of amnesties and statutes of limitation would determine the breach of obligations imposed upon states to prosecute alleged perpetrators of international crimes. In this line, in the Sandoval case, the Supreme Court of Chile stated the supremacy of the 1949 Geneva Conventions over domestic law and ruled on the non-applicability of the amnesty law. Consequently, the argumentation of the Spanish court is outdated and ignores the jurisprudence of international and domestic forums on the matter.
The decision of the Spanish court rejecting the admission of the international rogatory commissions has both substantive and procedural consequences. Regarding the substantive issues, the decision reproduces the outdated argumentation of the Spanish Supreme Court on the validity of the Amnesty Law and the statute of limitations with the effect of preventing the investigation into crimes against humanity committed during the Spanish dictatorship. The resolution also ignores the fact that the Amnesty Law cannot preclude the investigation initiated by the judicial bodies in other countries, in this case in Argentina. At the procedural level, the lack of judicial cooperation of the Spanish judicial authorities could eventually infringe the Treaty on Extradition and Judicial Assistance in Criminal Matters between Spain and Argentina.