On 26 September 2005, Spain’s Tribunal Constitucional ruled that cases of genocide committed abroad could be prosecuted in Spain, irrespective of whether the victim is a Spanish national. In so doing, the Constitutional Court overruled the interpretation given by Spain’s Tribunal Supremo (Supreme Court) to section 23(4) of the Organic Law on the [organization of the] Judicial Power (i.e. the judicial system), on the grounds that it had denied the right to effective access to justice as guaranteed under Section 24.1 of the Spanish Constitution.

The case in question related to the prosecution of acts committed in Guatemala in the 1970s and 1980s and alleged to have constituted crimes of genocide, terrorism and torture. The plaintiffs challenged the restrictive interpretation given by the Supreme Court to the principle of universal jurisdiction under Spanish law.

Section 23(4) of the Organic Law on the Judicial Power recognizes the principle of universal jurisdiction over several crimes, including genocide and terrorism. The Supreme Court had rejected the case, on the basis of the principle of subsidiarity under section 6 of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, and ruled that the plaintiffs had failed to prove that the courts of another state (Guatemala) had de facto rejected the claim. The Constitutional Court decided that such an interpretation defeated the purpose of universal jurisdiction as provided for under both Spanish law and the Genocide Convention, and held that it is enough, in order for domestic courts to exercise jurisdiction, to present serious and reasonable evidence of a failure to prosecute. Furthermore, the Constitutional Court rejected the Supreme Court’s assertion that, since no international treaty establishes the principle of universal jurisdiction, universal jurisdiction is restricted under customary international law. While referring to the definition of universal jurisdiction in criminal matters given by the Institute of International Law in 2005, the Constitutional Court held that international law does not subject the competence of States to prosecute genocide and punish offenders to the existence of a connection or link with the place of jurisdiction, whether based on the principles of territoriality, active or passive personality, or national interest.

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