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

On 26 September 2005, the Spanish Constitutional Tribunal reversedthe decisions of the Audiencia Nacional and the High Court (TribunalSupremo) in the case of the Guatemalan Generals. According tothe two judicial bodies, the exercise of universal jurisdictionover international crimes required a link between the crimeor the victims or the offender and Spain, such as the presenceof the offender on Spanish territory or the Spanish nationalityof the victims. The Constitutional Tribunal held, instead, thatthese requirements are contrary to the principle pro actione,i.e. they result in an unjustified restriction of the constitutionalright to effective judicial protection. The Tribunal also clarifiedthat universal jurisdiction, whose aim is fighting impunity,does not require any link other than the universal characterof the values protected by the provisions criminalizing themost serious violations of international law. The presence ofthe accused in Spain is merely a condition for trial, not adistinct ground of jurisdiction; in other words, the accusedmust be in Spain for the trial to begin, but jurisdiction maybe exercised even in his absence, for example for the issuanceof a request for extradition. The only condition to which theexercise of universal jurisdiction is subject is that the stateof the locus commissi delicti is not already investigating andprosecuting the case effectively.