The Spanish Judicial Act of 1985 provided for one of the broadest universal jurisdiction provisions in the world. Spain became a pioneer in the application of universal jurisdiction. However, its success, in terms of providing an effective remedy for victims of human rights violations amounting to international crimes, has become a threat for politicians and international relations.
The slow death of universal jurisdiction in Spain
The universal jurisdiction regime was reformed in 2009. This limited the ability of Spanish courts to investigate and prosecute crimes committed outside Spain. An additional reform in 2014 brought about the complete elimination of universal jurisdiction in Spain for the most serious international crimes. It introduced an extensive and complex set of conditions that must be met before Spanish courts can assert jurisdiction over these crimes. In practical terms, this new law meant that all open cases were automatically closed. Since 2014 the law has applied not only to future cases but also to pending and ongoing investigations (by virtue of a retroactive provision in the law).
In all these years of universal jurisdiction litigation, not one complaint before the European Court of Human Rights passed the admissibility filter until August 2020, when the court communicated the Couso Permuy case against Spain. For this reason, Rights International Spain submitted a third-party intervention to the ECtHR.
Background of the case
In April 2003, TV cameraman Jose Couso died in Baghdad (Iraq) after a US tank shell hit the hotel Palestina. His family filed a complaint at the National Court in May 2003, requesting that the court clarify the circumstances of Mr Couso’s death, identify those responsible, and prosecute them. In October 2003, the Central Investigative Judge admitted the case and launched an investigation ordering all necessary investigative actions. The investigation progressed quite far but then the admissibility requirements changed in 2014, 11 years into the proceeding, and the investigation ceased.
Legal certainty and legitimate expectations as core elements of the right to a fair trial
At the time of José Couso’s death Spanish law did not require the alleged perpetrator to be in Spain for the investigation or judicial proceedings to be initiated. The Investigative Judge verified compliance with the admissibility criteria in force at the time and, being satisfied, launched a full investigation. After 11 years this led to the identification and indictment of five US military officers on war crimes and murder charges. The fact that international arrest warrants were issued against them, increased the legitimate expectations that they would be prosecuted.
The victim’s family was exercising their right to access a court and was obtaining effective protection from the court. However, this right was taken away when the 2014 legal reform lead to the unexpected termination of the proceeding.
Before 2014 the family had a well-founded legitimate expectation that the investigation into José Couso's death would bring those responsible to justice. They could not have foreseen the adoption of a measure that could affect their rights, which were being already pursued before the Spanish courts.
How Rights International Spain sees the case
Rights International Spain argues that since the court had already afforded protection to the victims’ family, the consequence of applying the retroactive provision was that the victims were stripped of this protection. The legislator could have chosen a less restrictive legal mechanism to reform the law and did not clearly specify the reasons that justified the closure of almost all open and ongoing universal jurisdiction proceedings. Therefore, the restriction in access to a court imposed by the 2014 law entailed an unjustified, unreasonable and disproportionate retroactive limitation of the Applicant’s right of access to court. This seriously affected his right to legitimate expectations of justice and thus, affecting legal certainty, in breach of Article 6 § 1 of the Convention.
You can read the Third Party Intervention here.