Role of Spanish Constitutional Court in Universal Jurisdiction for Protecting Rights: A Ca, Diapositivas de Derechos Humanos

¡Descarga Role of Spanish Constitutional Court in Universal Jurisdiction for Protecting Rights: A Ca y más Diapositivas en PDF de Derechos Humanos solo en Docsity! The global mechanisms for human rights protection and the principle of universal jurisdiction Universitat Pompeu Fabra 2019 Dr. Marco Bocchi Description of the seminar In this seminar, we will analyze the principal institutions and instruments for the international protection of human rights which include the participation of Spain. After having outlined the intertwined and multilevel protection of fundamental rights, we will discuss the Spanish Constitutional Court’s approach to universal jurisdiction for the protection of fundamental rights in the light of the recent judgment of December 20, 2018. The UN system of human rights’ protection The United Nations (UN) plays a key role in the development and promotion of the international human rights protection system. Constituted under the United Nations Charter (1945) the UN aims to “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. The human rights stipulations laid down in the UN Charter are the foundations on which the UN human rights regime is built and on which it continues to develop. Instruments at UN level 1) The UN-Charter (1945) is generally perceived as being the basis for the UN human rights system, however, it does not contain a specific bill of rights. 2) The Universal Declaration on Human Rights (1948) stipulates in 30 articles a comprehensive catalogue of rights including civil and political rights as well as social, economic and cultural rights. It is a non binding document but it’s considered the main pillar for the global HR protection. It envisages limitations only to secure recognition and respect for the rights and freedoms of others and to secure public order and safety (Art. 29). 3) The International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both adopted on 1966. Those are binding documents adopted by States in order to give legal meaning to the provisions already included into the UDHR. Instruments at UN level 4) Under the UN system, a multitude of multilateral human rights treaties have been codified. They focus on specific rights, in order to increase their protection. The most important are: • The International Convention on the Elimination of All Forms of Racial Discrimination (1965) • The Convention on the Elimination of All Forms of Discrimination against Women (1979) • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) • The Convention on the Rights of the Child (1989) • The International Convention on the Protection of the Rights of All Migrant Workers (1990) • The Convention on the Rights of Persons with Disabilities (2006) • The International Convention for the Protection of All Persons from Enforced Disappearance (2006) General Assembly and Security Council The General Assembly (GA) is entitled to discuss any questions or any matters within the scope of the UN Charter, which therefore includes human rights issues (UN Charter, Art. 10). The Security Council’s (SC) principal responsibility is to promote the establishment and maintenance of international peace and security (UN Charter, Art. 24). Although the SC was initially reluctant to be involved in human rights matters its activities and decisions have increasingly been influenced by and relevant for human rights considerations. Especially the discussions in the context of the development of the Responsibility to Protect (R2P) are inherently interwoven with human rights considerations. The Economic and Social Council (ECOSOC) & the Human Rights Council (HCR) The Economic and Social Council (ECOSOC) is one of the core UN bodies dealing with human rights. ECOSOC is indeed entitled to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all” (Art. 62 UN charter). In June 2006, the Human Rights Council (HRC) replaced the Commission on Human Rights (CHR) which had been in operation for almost 60 years and which was criticised for being too political and selective in its criticism as well as including Member States with a flawed human rights record. The United Nations High Commissioner for Human Rights (UNHCR) The post of the United Nations High Commissioner for Human Rights (UNHCHR) was created on 1994. The UNHCHR is appointed by the Secretary General (SG) of the UN and approved by the GA and has a fixed term of four years with the option to be reappointed for another term of four years. The UNHCHR is the UN official with principal responsibility for UN human rights activities under the direction and authority of the SG. In general, his/her primary task is the promotion and protection of the effective enjoyment of all civil, cultural, economic, political and social rights by all. Treaty-based bodies Treaty-based bodies were created by specialised treaties in order to promote and monitor the implementation of the treaty in question. The most important are: • Human Rights Committee • Committee on Economic, Social and Cultural Rights • Committee on the Elimination of Racial Discrimination • Committee on the Elimination of Discrimination against Women • Committee against Torture • Subcommittee on Prevention of Torture • Committee on the Rights of the Child • Committee on Migrant Workers • Committee on the Rights of Persons with Disabilities • Committee on Enforced Disappearances They have limited powers mainly related to monitoring the respect of treaty rights by member States. In case they find a violation they can issue a decision (which is not legally binding) recommending to the MS the necessary measures to eliminate the violation. UN Treaties ratification status for Spain Treaty Signature date Ratificati on International Covenant on Economic, Social and Cultural Rights (ICESC) 28 Sep 1976 27 Apr 1977 International Covenant on Civil and Political Rights (ICCPR) 28 Sep 1976 27 Apr 1977 Convention on the Elimination of All Forms of Discrimination against Women 17 Jul 1980 05 Jan 1984 Convention against Torture and Other Cruel Inhuman or Degrading Treatment 04 Feb 1985 21 Oct 1987 Convention on the Rights of the Child (CRC) 26 Jan 1990 06 Dec 1990  Optional Protocol to ICCPR aiming to the abolition of the death penalty 23 Feb 1990 11 Apr 1991 Optional Protocol to the CRC against children in armed conflict 06 Sep 2000 08 Mar 2002 Optional Protocol to the CRC against child prostitution and child pornography 06 Sep 2000 18 Dec 2001 Optional Protocol of the Convention against Torture 13 Apr 2005 04 Apr 2006 Convention on the Rights of Persons with Disabilities 30 Mar 2007 03 Dec 2007 Convention for the Protection of All Persons from Enforced Disappearance 27 Sep 2007 24 Sep 2009 The International Criminal Court The International Criminal Court (ICC) was established by the Rome Statute, which was adopted in 1998 and entered into force on 2002. The Court is based in The Hague and is an international organization independent from the UN framework. According to the Rome Statue, the jurisdiction of the Court is limited to the most serious crimes of concern to the international community as a whole, including genocide, crimes against humanity, war crimes and the crime of aggression. The jurisdiction of the ICC covers only a limited range of human rights issues. However, the Rome Statute lays down in Art. 21 that the “application and interpretation of law must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, age, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” Principle of complementarity and State cooperation with the ICC The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute. Therefore, if legitimate national investigations or proceedings into crimes have taken place or are ongoing, the Court will not initiate proceedings. This principle applies regardless of the outcome of national proceedings, so the Court will not prosecute an individual for the crime in question so long as it is satisfied that the national proceedings were legitimate. State cooperation is fundamental for the success of the ICC, since the tribunal itself cannot mount successful cases without the availability of States to support its investigations and providing the concrete and necessary means for allowing the trial and its outcome. Furthermore, without State cooperation, the ICC may lose both its legitimacy at international level and its effectiveness in dealing with the most difficult cases. Non-Governmental Organizations (NGOs) International Non-Governmental Organizations (NGOs) are an important force within the international human rights architecture. They provide an important bridge between the world of law, politics and bureaucracy and the actual experience of human rights violations. The involvement of NGOs in human rights issues has a long history: one of the first organizations was the Anti-Slavery Society (1836), but also the International Committee of the Red Cross (1863) is legally considered an NGO. Today, human rights NGOs have been included in the UN system: Art 71 of the UN Charter provides for a consultation mechanism for NGOs. During the second half of the 20th century, human rights NGOs have undergone unprecedented proliferation, performing many roles and functions and being active in many thematic areas. The global mechanisms for human rights protection and the principle of universal jurisdiction Universitat Pompeu Fabra 2019 Dr. Marco Bocchi Description of the seminar In this seminar, we will analyze the principal institutions and instruments for the international protection of human rights which include the participation of Spain. After having outlined the intertwined and multilevel protection of fundamental rights, we will discuss the Spanish Constitutional Court’s approach to universal jurisdiction for the protection of fundamental rights in the light of the recent judgment of December 20, 2018. The UN system of human rights’ protection The United Nations (UN) plays a key role in the development and promotion of the international human rights protection system. Constituted under the United Nations Charter (1945) the UN aims to “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. The human rights stipulations laid down in the UN Charter are the foundations on which the UN human rights regime is built and on which it continues to develop. Instruments at UN level 1) The UN-Charter (1945) is generally perceived as being the basis for the UN human rights system, however, it does not contain a specific bill of rights. 2) The Universal Declaration on Human Rights (1948) stipulates in 30 articles a comprehensive catalogue of rights including civil and political rights as well as social, economic and cultural rights. It is a non binding document but it’s considered the main pillar for the global HR protection. It envisages limitations only to secure recognition and respect for the rights and freedoms of others and to secure public order and safety (Art. 29). 3) The International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both adopted on 1966. Those are binding documents adopted by States in order to give legal meaning to the provisions already included into the UDHR. Instruments at UN level 4) Under the UN system, a multitude of multilateral human rights treaties have been codified. They focus on specific rights, in order to increase their protection. The most important are: • The International Convention on the Elimination of All Forms of Racial Discrimination (1965) • The Convention on the Elimination of All Forms of Discrimination against Women (1979) • The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) • The Convention on the Rights of the Child (1989) • The International Convention on the Protection of the Rights of All Migrant Workers (1990) • The Convention on the Rights of Persons with Disabilities (2006) • The International Convention for the Protection of All Persons from Enforced Disappearance (2006) General Assembly and Security Council The General Assembly (GA) is entitled to discuss any questions or any matters within the scope of the UN Charter, which therefore includes human rights issues (UN Charter, Art. 10). The Security Council’s (SC) principal responsibility is to promote the establishment and maintenance of international peace and security (UN Charter, Art. 24). Although the SC was initially reluctant to be involved in human rights matters its activities and decisions have increasingly been influenced by and relevant for human rights considerations. Especially the discussions in the context of the development of the Responsibility to Protect (R2P) are inherently interwoven with human rights considerations. The Economic and Social Council (ECOSOC) & the Human Rights Council (HCR) The Economic and Social Council (ECOSOC) is one of the core UN bodies dealing with human rights. ECOSOC is indeed entitled to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all” (Art. 62 UN charter). In June 2006, the Human Rights Council (HRC) replaced the Commission on Human Rights (CHR) which had been in operation for almost 60 years and which was criticised for being too political and selective in its criticism as well as including Member States with a flawed human rights record. The United Nations High Commissioner for Human Rights (UNHCR) The post of the United Nations High Commissioner for Human Rights (UNHCHR) was created on 1994. The UNHCHR is appointed by the Secretary General (SG) of the UN and approved by the GA and has a fixed term of four years with the option to be reappointed for another term of four years. The UNHCHR is the UN official with principal responsibility for UN human rights activities under the direction and authority of the SG. In general, his/her primary task is the promotion and protection of the effective enjoyment of all civil, cultural, economic, political and social rights by all. Treaty-based bodies Treaty-based bodies were created by specialised treaties in order to promote and monitor the implementation of the treaty in question. The most important are: • Human Rights Committee • Committee on Economic, Social and Cultural Rights • Committee on the Elimination of Racial Discrimination • Committee on the Elimination of Discrimination against Women • Committee against Torture • Subcommittee on Prevention of Torture • Committee on the Rights of the Child • Committee on Migrant Workers • Committee on the Rights of Persons with Disabilities • Committee on Enforced Disappearances They have limited powers mainly related to monitoring the respect of treaty rights by member States. In case they find a violation they can issue a decision (which is not legally binding) recommending to the MS the necessary measures to eliminate the violation. UN Treaties ratification status for Spain Treaty Signature date Ratificati on International Covenant on Economic, Social and Cultural Rights (ICESC) 28 Sep 1976 27 Apr 1977 International Covenant on Civil and Political Rights (ICCPR) 28 Sep 1976 27 Apr 1977 Convention on the Elimination of All Forms of Discrimination against Women 17 Jul 1980 05 Jan 1984 Convention against Torture and Other Cruel Inhuman or Degrading Treatment 04 Feb 1985 21 Oct 1987 Convention on the Rights of the Child (CRC) 26 Jan 1990 06 Dec 1990  Optional Protocol to ICCPR aiming to the abolition of the death penalty 23 Feb 1990 11 Apr 1991 Optional Protocol to the CRC against children in armed conflict 06 Sep 2000 08 Mar 2002 Optional Protocol to the CRC against child prostitution and child pornography 06 Sep 2000 18 Dec 2001 Optional Protocol of the Convention against Torture 13 Apr 2005 04 Apr 2006 Convention on the Rights of Persons with Disabilities 30 Mar 2007 03 Dec 2007 Convention for the Protection of All Persons from Enforced Disappearance 27 Sep 2007 24 Sep 2009 The International Criminal Court The International Criminal Court (ICC) was established by the Rome Statute, which was adopted in 1998 and entered into force on 2002. The Court is based in The Hague and is an international organization independent from the UN framework. According to the Rome Statue, the jurisdiction of the Court is limited to the most serious crimes of concern to the international community as a whole, including genocide, crimes against humanity, war crimes and the crime of aggression. The jurisdiction of the ICC covers only a limited range of human rights issues. However, the Rome Statute lays down in Art. 21 that the “application and interpretation of law must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, age, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” Principle of complementarity and State cooperation with the ICC The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute. Therefore, if legitimate national investigations or proceedings into crimes have taken place or are ongoing, the Court will not initiate proceedings. This principle applies regardless of the outcome of national proceedings, so the Court will not prosecute an individual for the crime in question so long as it is satisfied that the national proceedings were legitimate. State cooperation is fundamental for the success of the ICC, since the tribunal itself cannot mount successful cases without the availability of States to support its investigations and providing the concrete and necessary means for allowing the trial and its outcome. Furthermore, without State cooperation, the ICC may lose both its legitimacy at international level and its effectiveness in dealing with the most difficult cases. Non-Governmental Organizations (NGOs) International Non-Governmental Organizations (NGOs) are an important force within the international human rights architecture. They provide an important bridge between the world of law, politics and bureaucracy and the actual experience of human rights violations. The involvement of NGOs in human rights issues has a long history: one of the first organizations was the Anti-Slavery Society (1836), but also the International Committee of the Red Cross (1863) is legally considered an NGO. Today, human rights NGOs have been included in the UN system: Art 71 of the UN Charter provides for a consultation mechanism for NGOs. During the second half of the 20th century, human rights NGOs have undergone unprecedented proliferation, performing many roles and functions and being active in many thematic areas. The NGOs impact on the development of international human rights law The current development of international human rights law shows how NGOs were successful in creating an international forum for discussion and debate as well as agenda for the decision-making process at national level. NGOs have been of central importance for the institution of the ICC and today the NGO “Coalition for the International Criminal Court” serves as a sort of umbrella for NGOs to coordinate with each other on similar objectives related to the ICC. Some NGOs have also done pioneering work concerning the development of human rights standards and monitoring the follow-up of human rights violations, fixing the lack of control that some regional organizations have demonstrated in this regard. The principle of universal jurisdiction and the erga omnes effects Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens, that certain international law obligations are binding on all states. During the last decades, there has been an increasing consensus in considering human rights norms as having erga omnes effects. The ICJ case «Barcelona Traction» (Belgium v Spain) In 1970 the ICJ had the occasion to develop the concept of erga omnes norms in a judicial case concerning Spain. Even without stating clearly which norms have erga omnes obligations, the ICJ said that ‘… an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes…” The principle of universal jurisdiction in the Spanish system Spanish law recognizes the principle of universal jurisdiction. Article 23.4 of the Judicial Power Organization Act (LOPJ), enacted on 1985, establishes that Spanish courts have jurisdiction over crimes committed by Spaniards or foreign citizens outside Spain when such crimes can be described, according to Spanish criminal law as genocide, terrorism, or serious human rights violations. The ICJ case Belgium v Congo (2002) In 1993, the Belgian Parliament voted a law of universal jurisdiction to allow national judges to prosecute anyone committing war crimes, crimes against humanity and genocide. Under this law, Belgian judges issued an arrest warrant against the Minister of Foreign Affairs of the Democratic Republic of the Congo, accused of massive human rights violations. Since customary international law envisages both the prohibition of human rights violations and the immunities from criminal jurisdiction for States’ officials where they are acting as organs of the represented State, the case has been submitted to the ICJ as a public international law affair. In other words, the ICJ was asked to decide whether in this case the Belgian judges could prosecute the official member of another government for international human rights violations or if diplomatic immunities should prevail because of the role covered by the accused person. The ICJ case Belgium v Congo (2002) The Court found that the issue and international circulation by Belgium of the arrest warrant against the Congolese Minister of Foreign Affairs failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Congo enjoyed under international law; and that Belgium must cancel the arrest warrant. The ICJ concretely favored the application of immunity rules on those protecting human rights but limited the scope of its judgment to the immunity from criminal jurisdiction for an incumbent organ of a foreign State and did not made any conclusion about which of those rules (immunity from jurisdiction and the need of human rights protection) should prevail according to customary international law. The ICJ case Belgium v Congo (2002) It is interesting to note that the approach of the Belgian judges to the principle of universal jurisdiction was exactly the same of the Spanish judges. Indeed, before issuing the arrest warrant against the Congolese Minister, Belgian judges argued that immunity was not granted to state officials for their own benefit, but to ensure the effective performance of their functions on behalf of their respective States, and in this case no State interest was envisaged in committing massive human rights violations. The ICJ, however, did not share the same view but declared that international law do not currently allow to overcome immunity rules for any reasons, not even for human rights violations. However, the ICJ also stressed that jurisdictional immunity is procedural in nature, while criminal responsibility is a question of substantive law, therefore trying to avoid a comparison about these two competing interests. Consequences of the 237/2005 judgment After the Constitutional Court’s 237/2005 judgment, many other investigations have been opened in Spain for prosecuting international human rights violations. In 2006, the Spanish High Court agreed to investigate a case in which seven former Chinese officials, were alleged to have participated in massive human rights violations in Tibet. China denounced the investigation as an interference in its internal affairs. In 2007, the Spanish Constitutional Court issued the judgment 227/2007 confirming the same position expressed in 2005. In 2009 a Spanish judge opened an investigation against the Israeli defence minister and other militars for crimes against humanity committed at the expenses of the Palestinian people. This case was very similar to that who brought to the Yerodia case before the ICJ. The Israeli government strongly criticized the decision and refused to provide information requested by the Spanish court. Consequences of the judicial activism on the Spanish political and legal system These new investigations opened, among others, against Israeli and Chinese authorities caused some diplomatic crisis between Spain and those countries. Even though the Spanish judges approach to the principle of universal jurisdiction was consistent with the Spanish constitution, it was not with the interpretation of the ICJ, which is entitled to clarify the content of international norms and their obligations. In doing so, Spanish judges were therefore violating the international norms on jurisdictional immunities who protect members of foreign governments from criminal prosecutions. These issues brought to a complicated situation who has been solved in 2009 when the Spanish Congress passed a law that limits the competence of judges under Article 23.4 to cases in which Spaniards are victims, there is a relevant link to Spain, or the alleged perpetrators are in Spain. Consequently all the pending cases related to foreign citizens for crimes committed outside the Spanish territory were dismissed. The Spanish Constitutional Court judgment 140/2018 On 20 December 2018 the principle of universal jurisdiction returned to the center of legal and political debate when the Spanish Constitutional Court issued a ruling rejecting an application made by more than fifty Members of Parliament to strike out a bill introduced in 2014 who made practically impossible to prosecute if the crime was completely unrelated to Spain. In other words, it provided a even narrower interpretation than the reform made in 2009. This judgment is the third case (after those of 2005 and 2007) in which the Court had to deal with the constitutionality of the regulation of universal jurisdiction and it represents a turning point in the interpretation of this principle. International law does not impose any specific model of universal jurisdiction In rejecting the claim, the Court also said that the 2014 reform would be unconstitutional only if incompatible with the international human rights treaties ratified by Spain, since those are one of the parameters necessary to interpret the fundamental rights granted by the Constitution (art. 10.2 CE). However, the Court did not find any contrast (p. 41). The Court justified its findings also arguing that all the UN resolutions on human rights implicitly acknowledge that there is not a single and universally valid model of the principle of universal jurisdiction. Both the UN General Assembly and the ICJ, as well as the Princeton Principles, admit however that international customary law permits states to grant universal jurisdiction to their municipal courts, without imposing any obligation to do so. The relationships with EU and ECHR law The Court also offers very interesting arguments about EU and ECHR law. Turning to the jurisprudence of the ECtHR, the Court concludes that Art. 6 ECHR includes and protects the right of access to justice, as well as any limitations to this right which have a legitimate goal. Additionally, according to the Court, in the ECHR’s view the concept of jurisdiction must reflect the international understanding of such concept, which is basically territorial. The Court further reminds that, in accordance with EU law, treaties are not hierarchically superior to internal statues. It is for ordinary judges to decide when not to apply a municipal law, in case the dispute falls within the scope of application of a duly ratified treaty or an EU legal instrument. The choice of the applicable law, international or municipal, is therefore a task for ordinary courts (p. 47). More restrictive universal jurisdiction rules are not unconstitutional The Court also admits that the complicated reform of 2014 is not arbitrary and the restrictive application of the principle of universal jurisdiction is not unreasonable nor unconstitutional. Spanish nationals who are victims of terrorism or of certain sex crimes committed abroad will have access to Spanish courts whereas Spanish victims of other crimes will need additional connecting factors, such as the nationality of the accused or his presence on Spanish soil, but this is because the nationality of the victim is indeed the criterion used by several conventions of the Council of Europe with respect to the aforementioned crimes and not to others (p. 54).