[Note: Translated from the original Spanish. Thanks to the Comite de Apoyo al Tibet (Tibet Support Committee), Madrid]
Writ of Acceptance, 10th January 2006, National Court, Madrid
Roll of Appeal nº 196/05
Preliminary proceedings 237/05
Nº 2 Central Investigative Court
NATIONAL COURT (a special division of the Supreme Court)
The Illustrious Judges of Section 4 of the Criminal Court
Mr. Fernando Bermúdez de la Fuente
Mr. Félix Alfonso Guevara Marcos
Mrs. Carmen Paloma González Pastor
Madrid, 10th January 2006
FIRST.- On 28th June 2005 the procurator Ms Virginia Aragón Segura submitted to the Central Senior Court a lawsuit for genocide in representation of the Comité de Apoyo al Tíbet, the Fundación Casa del Tíbet and Thubten Wangchen Sherpa Sherpa, exercising the people’s right to action, laid down in Article 125 of the Spanish Constitution, on behalf of the former two plaintiffs and private prosecution, within the framework of Article 264 of Spanish Criminal Law, on behalf of the third party, under the legal direction of Mr. José Manuel Gómez-Benitez, against the following accused:
· 1. Jiang Zemin, former president of China and secretary of the Chinese Communist Party, and currently the main military authority of the Chinese Liberation Army.
· 2. Li Peng, former prime minister during the Tibetan repression in the late eighties and early nineties.
· 3. Ren Rong, party secretary in Tibet from 1971-1980 and military official of the Southwestern Military Command that participated in the occupation of Tibet.
· 4. Yin Fatang, party secretary in Tibet from 1980-1985 and military official of the Southwestern Military Command that participated in the occupation of Tibet.
· 5. Qiao Shi, head of Chinese Security and responsible for the People’s Armed Police during the repression in the late eighties.
· 6. Chen Kuiyan, party secretary in the Tibetan Autonomous Region from 1992 to 2001, and
· 7. Deng Delyun, minister of family planning during the nineties.
SECOND.- On 29th June 2005 the Nº 2 Central Investigative Court agreed to initiate the preliminary proceedings, registered as 237/05, and sent the lawsuit to the Department of Public Prosecution for them to decide on competence and express their opinion on the proceedings.
On 27th July the Department of Public Prosecution delivered the requested ruling, rejecting the lawsuit. The Nº 2 Investigative Court then issued a ruling on 5th September in which it rejected the lawsuit, duly notifying the plaintiffs’ legal representative, whereupon an appeal was lodged that led to the roll of appeal 196/05 of this same Court, which set the hearing of the appeal initially for 13th October. However, due to the Constitutional Court delivering a ruling on 26th September that could have affected the matter in question, said hearing was postponed and in accordance with Article 197 of the Constitutional Law (CL) the Criminal Court met in full, in accordance with Article 264 of the CL, to unify criteria regarding the extraterritorial jurisdiction mentioned in Article 23.4 of said CL, and announced its decision on 3rd November.
Lastly, on 21st November a new writ was issued setting the hearing of the appeal for 14th December.
GROUNDS OF LAW
FIRST.- The plaintiffs’ defence disagrees with the ruling of the judge who, adopting the arguments in the report issued by the Department of Public Prosecution, rejected the lawsuit filed for genocide not for the reasons argued by the court or by that Department but due to the recent ruling by the Constitutional Court on 26th September 2005 regarding the scope of Article 23.4 of the C.L., as the decision adopted has meant a radical change in the stand taken up to now by the Supreme Court, so that one only has to analyse the presuppositions on which first the National Court, then the Supreme Court and finally the Constitutional Court pronounced themselves, to reach the conclusion to revoke the ruling issued and, consequently, the rejection of the lawsuit filed, going on to put forward briefly and concisely the various legal resolutions that had given rise to said ruling by the Constitutional Court, so as to apply its same principles to the present case, though they not be identical. In short, the matter to be decided in the present case is what said Court already decided, namely, whether Spain has universal jurisdiction for crimes of genocide based on Article 23.4 of the CL and whether any kind of legal limitation exists to this jurisdiction.
For this reason it is of great interest to review the various stages, grounds and resolutions regarding this matter and subjected to debate by the Constitutional Court in its ruling of 26th September, which pronounced universal jurisdiction for Spanish legislation with regard to genocide.
SECOND.- As is well known, what first led this National Court to issue a ruling by its Plenary Criminal Court on 13th December 2000, against which an appeal was filed, which the Supreme Court resolved in a ruling on 25th February 2003 and against which an appeal for legal protection was then filed, which in turn led to the ruling of 23rd September last, was the lawsuit filed by Mrs. Rigoberta Menchú on 2nd December 1999.
In effect, on that date a lawsuit was lodged at the Central Investigative Senior Court for acts committed in Guatemala between 1978 and 1986 by persons holding both civilian and military public posts in that country, which could constitute crimes of genocide, torture, terrorism, murder or illegal arrest and which included among other events the assault on the Spanish Embassy in 1980 and the death of several priests, some of whom were Spanish. Once registered and passed on to the Department of Public Prosecution, its being filed away was considered but not, however, agreed upon, and a ruling was issued, to the contrary, on 27th March 2000, in which the Investigative Court agreed on the competence of Spanish jurisdiction and agreed, among other procedures, to summon the Guatemalan Authorities to declare whether any criminal case had been opened against the accused for these same acts, particularly regarding the events at the Spanish Embassy.
This decision was appealed. First, regarding an amendment, which was rejected, and then by an appeal from the Department of Public Prosecution, giving rise to the second important legal ruling, that of the Plenary of the Criminal Court on 13th December 2002, which stated: “exercising Spanish criminal jurisdiction to persecute the acts in question does not proceed at this moment, for which reason the Court should shelve the preliminary investigation”, basing this argument on there not being any actual evidence for the inactivity of Guatemala’s legal system.
THIRD.- The next step was the Supreme Court’s ruling of 25th February 2003, which while not ratifying the arguments of the previous ruling, did accept in part the appeal lodged, as it considered the case to affect Spanish interests that were protected by the existence of a Convention, to the effect that the lawsuit should be admitted only in relation to those Spanish interests affected, the reasons given by the Supreme Court being the following:
· 1st. There had been no infringement of the right to effective legal protection by the National Court’s having denied jurisdiction based on subsidiarity, not alleged by the Department of Public Prosecution in its appeal.
· 2nd. The impossibility of interpreting that the 1948 Convention on Genocide establishes universal jurisdiction in its Article I, as its Article VI establishes the competence of jurisdiction of a territory or an International Criminal Court, while Article VIII allows all Contracting Parties to approach the competent bodies of the United Nations in order for these to take the steps they consider necessary, in accordance with the United Nations Charter, for the prevention and repression of acts of genocide or those contemplated in Article III of said Convention; with the result that, according to the ruling by the Supreme Court here under discussion , the extraterritorial extension of Spanish Jurisdiction could only be justified in four cases:
- 1st Based on the royal principles of protection that extend national jurisdiction to include attacks on the State perpetrated from foreign territories.
- 2nd By applying the principle of active or passive personality, which extends jurisdiction to include those crimes committed by or against a Spanish citizen irrespective of the place where the crime is committed.
- 3rd By the existence of interests particular to each State, namely, when there is a direct connection with a national interest, on the understanding that this connecting fact is as significant as other facts that, according to internal law and international treaties, give rise to the application of the other criteria for attributing extraterritoriality to criminal jurisdiction, and, finally,
- 4th When its application arises from a source recognised by international law, such as the treaties accepted by the States party, and this for three reasons:
- a) the general allusion of Article 23.4 of the CL to those crimes that in accordance with international treaties or conventions should be persecuted by Spain.
- b) because Article 96.2 of the Spanish Constitution incorporates as internal law the content of those treaties, and
- c) because Article 27 of the Vienna Convention on Treaty Rights of 23rd May 1969 prevents a State from invoking the provisions of its internal law as justification for its failure to comply with a treaty.
Accordingly, in applying the above criteria the Supreme Court accepted in part the appeal filed, declaring jurisdiction of the Spanish courts in two aspects:
- a) in relation to the events that took place in the Spanish Embassy, since the Government of Guatemala had admitted that those events constituted an infringement of the Geneva Convention regarding diplomatic relations, understanding that Convention Law permitted one of the States party of said Convention to act in accordance with the provisions of said Convention, and
- b) with regard to the death of four priests, inasmuch as this event came under the Convention of Torture, so Spanish jurisdiction was equally supported regarding the existence of other convention law concerning this particular act.
In short, in the view of the Supreme Court Article 23.4 of the CL was only applicable, and in part, in the assumption cited, insofar as some sort of international treaty or convention existed with the country in question, which supported one State’s acting within the territory of another.
This second stage in the legal pilgrimage of the Guatemalan complainant cannot end without special mention being made of the fact that in the Supreme Court’s ruling under discussion there were seven dissenting votes whose arguments, in fact, formed the basis of the very appeal for protection lodged at the Constitutional Court, and that this body accepted in essence those arguments in its own ruling; said arguments being, in synthesis, the following:
· 1st. Universal jurisdiction is not governed by the criterion of subsidiarity but by that of concurrence, as precisely what it aims to avoid is impunity for heinous crimes, which certainly obliges no action of intervention by a third State if territorial jurisdiction is in effect but does not allow for demanding the full accreditation of the inactivity of that territorial jurisdiction in order to accept to process a lawsuit, it being sufficient to submit reasonable evidence that the crimes denounced have not been effectively persecuted to date.
· 2nd. A “reformatio in peius” has arisen in the injury to the position of the complainants of the case, as although the criterion of the National Court was to apply the principle of subsidiarity, given the short period of time between the acts taking place and their being denounced and using to this effect the phrase “for the moment”, the Supreme Court’s ruling has a definite range as it only permits extraterritoriality of Spanish jurisdiction in cases where the victims are Spanish or the culprits are on Spanish soil.
· 3rd. An interpretation “contra legem” of Article 23.4 of the C.L. has been made, insofar as the sole limitation for exercising Spanish jurisdiction is that the accused not have been acquitted, condemned, pardoned or punished abroad, and not all the other requisites mentioned in the ruling.
· 4th. Lastly, the Court considers that despite the ruling under discussion having affirmed the principle of universal justice for the crime of genocide established in Article 23.4 of the C.L, this is not coherent with the affirmation that said principle requires a link or connection between the acts committed and the interest of the State exercising its jurisdiction, with the excuse that this could lead in other cases to a proliferation of lawsuits for completely foreign or distant crimes, thus avoiding any type of manifestation of the existence of a possible misuse of law.
FOURTH.- The final stage of the lawsuit filed initially in its day by Mrs. Rigoberta Menchú and supported in this last stage of its legal journey by a good number of other organizations inclined towards the defence of human rights was the appeal lodged at the Constitutional Court, which rejected radically and decisively each and every one of the arguments in the rulings by the Supreme Court and the National Court’s Criminal Court, overruling them both and laying down a series of premises and criteria that should be the ones used in taking the decision regarding the present case.
In its consideration of this question and object of controversy, which is none other than pronouncing itself on what it called an “openly restrictive” interpretation by both the National Court and in particular the ruling of the Supreme Court in commenting on Article 23.4 of the C.L., and before analysing the arguments of both those rulings, the Constitutional Court began by making two points:
· The first point is to remember and mention what this Court itself had said on two occasions, in ruling 21/97 of 10th February and in particular in 87/2000 of 27th March, regarding the argument of universal jurisdiction, namely: “the final argument of this attributive rule – referring to Article 23.4 of the CL. – lies in the universalization of the jurisdictional competence of States and of their legal bodies so as to investigate certain acts whose persecution and prosecution are of interest to all States, for which the logical consequence is the concurrence of competencies, or to put it in different words, the concurrence of competent States”.
· The second point is to affirm the principle of universal justice established in Article 23.4 of our C.L. in which the only limitation specifically contemplated is that of res judicata.
With regard to these two points, the ruling under discussion begins by analysing the criteria of the National Court’s ruling, which, as mentioned above, was based on previous resolutions and in particular on Article VI of the Convention on Genocide and concludes by affirming the validity of the subsidiarity of Spanish jurisdiction to a territorial one, and goes on to reject absolutely each and every one of the arguments put forward by the Supreme Court in its ruling; from which both lines of argument should be separated.
FIFTH.- With regard to the ruling by the National Court, Article VI of the Convention for the prevention and punishment of Genocide is reproduced, as follows: “Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international tribunal as may have jurisdiction with respect to those contracting Parties which shall have accepted its jurisdiction.”
Reproducing the doctrine established in the rulings of 4th and 5th November 1998, the ruling of the National Court quotes the terms of the rule of subsidiarity, stating: “the jurisdiction of one State should abstain from exercising jurisdiction over acts of genocide that are being prosecuted by the tribunals of the country where they occurred or by an international tribunal”; in consequence, and granting the validity of such reasoning, the Constitutional Court adds that, on the contrary, for universal jurisdiction to be exercised it is sufficient that either the plaintiff or by virtue of office serious and reasonable evidence of legal inactivity be submitted that accredits a lack either of the will or the ability to effectively persecute these crimes.
However, and this is where the two courts differ in opinion, - states the Constitutional Court – the ruling of the National Court does not settle for the conclusion that it itself reaches, but requires from the plaintiff a full accreditation of legal impossibility or prolonged judicial inactivity, demanding that if the lawsuit had been lodged in the jurisdiction of the country in conflict it would have been rejected; a position criticised by the Constitutional Court insofar as it constitutes an infringement of the right to accede to the jurisdiction acknowledged in Article 24 of the Spanish Constitution.
SIXTH.- But it is in relation to the arguments held in the ruling of the Supreme Court where an insuperable abyss is apparent between the arguments of these two courts, each of which the Constitutional Court is obliged to refute categorically.
- Thus, with regard to the argument that applying Article 23.4 of the C.L. depends on the existence of an international convention of which Spain is a Party and supports such an extension of the extraterritorial competence of Spanish jurisdictional frontiers, this argument lacks any legal support as what Article VI of the Convention against Genocide establishes is a minimum obligation, whereby if no action is taken either in the country where the acts denounced were committed or internationally, the contracting parties of said convention are obliged to persecute the crime denounced in their own territory, as according to Article I of the Convention against Genocide the objective is to put into practice what that article affirms when it states that genocide is a crime of international law which contracting parties have the obligation to prevent and punish.
- Likewise, the Constitutional Court disagrees with the criterion maintained by the Supreme Court by which in order to include within its internal law a crime of those covered by Article 23.4 of the C.L, there is need for the existence of “links of connection” such as:
- a) the author of the crime be in Spanish territory;
- b) the victims be Spanish;
- c) there be another direct point of connection with national interests.
None of these restrictions is accepted by the Constitutional Court, since with regard to the first condition such a restriction only applies to cases falling within section g) of said Article 23.4 of the C.L. and not to the rest of the crimes contained in previous sections, and with regard to the other two restrictions the Constitutional Court is radically severe in affirming that such teleologically limiting restrictions (insomuch as they go further than the grammatical sense of the precept)… “go beyond what is constitutionally acceptable… insofar as they constitute a reduction contra legem based on corrective criteria that cannot be considered to be present in the law even implicitly and that, furthermore, are clearly contrary to the objective to which the institution aspires and alter until it is almost unrecognisable the principle of universal jurisdiction as it is conceived in international law, which has the effect of reducing the scope for applying the precept to the point that it almost becomes a de facto abrogation of Article 23.4 of the C.L.”
SEVENTH.- Having considered the above data, the subject matter of appeal is now approached.
As indicated above, the subject matter of debate in the present proceedings is the application of Article 23.4 of the C.L., namely, genocide, and therefore the same matter studied in the ruling by the Constitutional Court on 26th September.
Consequently, taking said doctrine in summary into account, the Court concludes that:
· A) The crime of genocide is, as stated in Article I of the Convention for the prevention and punishment of the crime of genocide, a crime of international law and
· B) Article 23.4 of the C.L. recognises universal jurisdiction for, among others, the crime of genocide, with no limitations other than what is expressly recognised in the text of said article, - 23.2 c) with regard to 23 in its entirety -, namely, that the accused not have been acquitted, pardoned or punished abroad, or, in the latter case, have served their sentence.
Thus, in the case in hand, the acts described in the lawsuit should be examined to see, first, whether they possess characteristics of genocide; second, whether the assumptions of Article VI of said Convention concur; and lastly, whether the case shows a reasonable exercise of law in lodging the appeal and origin of these proceedings in Spain.
EIGHTH.- With regard to the first question it is necessary to transcribe what Article II of the Convention for the prevention and punishment of the crime of Genocide defines as such and to remember that, as established by Article I, the crime of genocide may be committed both in times of peace and war.
Said Article II affirms:
“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.
Accordingly, it is sufficient to read the various sections that describe systematically the various acts that occurred in Tibet and to the Tibetan people to deduce that without a trace of doubt the acts described therein, some of which are supported by documentary evidence, possess prima facie the characteristics and descriptions listed in the abovementioned Article II.
NINTH.- With regard to the second matter, namely, the legal possibilities mentioned in Article VI of the Convention against Genocide, either within the territory where the acts occurred or at an international level, in view of the documents presented, four aspects should be distinguished:
· a) Tibet’s attempts to find a peaceful solution through the international community and, in particular, the United Nations;
· b) The most recent legal verifications made by the West regarding the crimes committed against the Tibetan people;
· c) The impossibility of any action by the International Criminal Court regarding the acts denounced;
· d) The failure to act of Chinese jurisdiction.
a) With regard to the first aspect, mention must be made of the many appeals for international help regarding not only the invasion but also the illegal acts committed against the human rights of the Tibetan people after the Dalai Lama and his government went into exile, an event that gave rise to the first appeal to the United Nations and led to its General Assembly issuing Resolution 1353 (XIV) in 1959, which states:
Said resolution caused a double reaction: on one hand, China denied it, calling it a “farce and illegal”, while accusing the United States of America of meddling in China’s internal affairs, a reaction that was easily refuted by looking at the speeches of the most important Chinese officials themselves and the official propaganda of the Communist Party; and on the other hand, the resolution was considered unsatisfactory by the Tibetan delegation due to its purely humanistic content, which spurred Tibet to reinitiate the required steps with the United Nations until a second resolution of the General Assembly was obtained – Nº 1723 (XVI) in 1961 -, in which the right of the Tibetan people to self-determination was recognised. This resolution states the following:
On this occasion China made no comment but neither did she cease her oppression of Tibet or genocidal practices, a fact which, in view of the ineffectiveness of the previous resolution, led the General Assembly to pronounce itself a third time in Resolution 2079 (XX) in 1965, which had a content similar to that of the previous ones.
b) A second attempt at putting an end to the desperate situation in which Tibet found herself was the continuous appeals by governments and international organizations, such as that of the European Parliament in a joint motion to approve a resolution on Human Rights in Tibet in its session on 15th March 1989, which declared that the recent show of force by Chinese security forces had been excessive, as they had opened fire, killing and injuring an unknown number of peaceful Western demonstrators. The United States Congress and Senate had pronounced themselves in similar terms in 1987 and 1989, as had the German Bundestag in 1987, the Italian Parliament in 1989, the International Convention on Tibet and Peace in Southern Asia in 1989, and various non-governmental organizations.
Other allegations presented in the lawsuit as constituent of the crime of genocide as established in Article II c) and d) of the Convention for the prevention and punishment of the crime of Genocide – regarding, firstly, the intentional infliction on the group of conditions of life that can lead to their physical destruction, in whole or in part, and secondly, to the adoption of measures intended to prevent births within the group – have likewise been denounced at an international level to the United Nations and the European Parliament, so that in view of the condemnatory resolution against China for the violation of human rights in Tibet Resolution 1991/10, the Human Rights Commission opened a debate and condemned the abortions and forced sterilizations, while the European Parliament passed a Resolution in September 1991 asking the Chinese Government to cease this practice.
c) Regarding the possibility of Tibet approaching the International Criminal Court whose objective, as everyone knows, and stemming from the idea of a permanent and independent judicial body though linked to the United Nations and with potentially universal scope, is to be able to prosecute those crimes of greatest relevance to the international community as a whole and which include that of genocide, in the case in hand such a possibility is inoperative inasmuch as Article 11 of the International Criminal Court’s Statute of Rome, signed in Rome on 17th July 1998, stipulates that said Court only has competence over crimes committed after its coming into force, while its second section specifies that when a State becomes party to this Statute after its entry into force said Court can only exercise its competence over crimes committed after said entry into force and after a declaration of acceptance of the Court’s competence is made; returning to the case in hand, the acts denounced occurred prior to 1998 and, furthermore, neither China nor of course Tibet are Parties to said Statute nor is there any evidence of China’s acceptance of the competence of said Court, with the result that no response from that international legal body can be expected.
d) Finally, regarding the possibilities of the Tibetan people being able to exercise in the Chinese courts the claim to justice that they do here, given the circumstances of the case, the length of time since the acts took place and the numerous steps taken by the Tibetan authorities according to the documents submitted with the lawsuit, further appeal in defence of their rights is unnecessary in the territory in which the acts denounced occurred.
TENTH.- The last question to be considered is whether the lawsuit under discussion constitutes a misuse of law in approaching the Spanish courts and appealing for justice regarding one of those crimes that is legally classified as international law, as affirmed in Article I of the selfsame Convention for the prevention and punishment of the crime of Genocide.
Said question was alluded to indirectly at the hearing by the plaintiffs’ defence, stemming from the sentence that appears in the Plenary of the Criminal Court of the National Court on 3rd November 2005 and issued as a result of the ruling by the Constitutional Court on 26th September previously, which states in its section 4, under Criterion of reasonableness: “once having confirmed compliance with the requirements of the internal legal system and discarded any court proceeding of the jurisdiction of the territory where the crimes occurred or of the international community, jurisdiction should, as a rule, be accepted, unless an excessive misuse of law is perceived in the absolute foreignness of the matter in that it involves completely foreign and/or distant crimes and places and the plaintiff does not accredit any direct interest or relation with them”.
As is quite evident from the abovementioned quote, what is to be avoided is, purely and simply, that the jurisdiction of this court be used in a misuse of law and is not a question of whether or not the acts denounced, the crime denounced, or the country in which such acts took place are foreign to our country, and it is obvious to infer that, in the case that concerns us, in view of the facts described in detail in the lawsuit together with the important documents that accompany them, it is clear not only that the acts denounced possess the attributes of a crime of genocide that should be investigated by Spanish jurisdiction as argued above, but also that this legal body has competence to accept and process the lawsuit that was originally rejected, bearing in mind the assumptions and principles established in the ruling of the Constitutional Court on 26th September 2005; which is why this Court takes the decision, anticipated above, to accept the appeal submitted by the plaintiffs’ legal representative and, revoking the ruling of nonadmission issued by the Nº 2 Central Investigative Court on 5th September 2005, agrees to grant leave to proceed with the lawsuit presented by the procurator Ms. Virginia Aragón Segura for the crime of genocide against the accused.
Having seen the precepts of general and pertinent application,
THE COURT RESOLVES: To accept the appeal presented by the procurator Ms. Virginia Aragón Segura and, revoking the ruling issued by the Nº 2 Central Investigative Court on 5th September last, agrees to grant leave to proceed with the lawsuit presented by said procurator for the crime of genocide.
The present ruling should be notified to the parties together with the indications established in Article 248.4 of the Constitutional Law.
This writ is agreed upon, ordered and signed by the illustrious judges who appear in the margin.
PROCEEDINGS.- I vouch for the immediate carrying out of what has been agreed upon.