Spain-Chile: Writ of the Instructing Court accepting the Jurisdiction in the Pinochet case

Summary Proceeding 1/98-J



At Madrid, on the fifteenth of September of One Thousand Nine Hundred and Ninety Eight

I Facts

First - That by the writ of this court dated 23 March of this year, the investigation was closed and the case was removed to the Criminal National Court of the Audiencia Nacional

Second- That by their writ of 9 July of this year, the first section of the Criminal National Court agreed to revoke the writ that was dictated by this court, closing the summary investigation. This action was taken to permit the Investigating Judge to resolve at the trial level whether a lack of jurisdiction does or does not exist, and, in the event that this requirement is deemed to be fulfilled, to decide additionally about the indictments and other proceedings requested by the plaintiffs.

II. Legal Foundation

First - That in completing the order of the National Criminal Court, it is necessary to issue a resolution regarding the jurisdiction of this court to investigate the crimes in question. This decision must be taken in relation to the claims made by the Ministerio Fiscal (Ministry of Public Prosecution), which serve, at their base, to reject the possibility that Spanish courts are legitimately competent to hear the present case.

In the first instance the Ministerio fiscal asserts, in its brief of 20 March of 1998, that there exists a lack of Spanish jurisdiction regarding the crime of genocide, signaling that the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December, 1948 grants competence to try the crime of genocide only to the courts in the nation where the act was committed.

However, one must place in opposition to this reasoning the fact that the 23rd article of the Organic Law of Judicial Authority, in correspondence with articles 10 and 96 of the Spanish Constitution, as well as the precedents established by Spanish courts, authorizes the competence of Spanish courts, especially with regards to the present case--at least that part that pertains to the priest Mr. [Antonio Llidó], who remains missing.

In effect, resolution 47/133 of the General Assembly of the United Nations "Declaration on the Protection of all People against Forced Disappearances," suggests in its 17th article that: "All acts of forced disappearances will be considered a permanent crime, while its perpetrators continue hiding the fate and the whereabouts of the disappeared person, and until all of the relevant facts have been uncovered". Article 18.1 of the same declaration states that: "The perpetrators or presumed perpetrators of the acts outlined in paragraph 1 of article 4 will not benefit from any special amnesty law, or any equivalent measures, whose effect is to exonerate them from any judicial proceeding or criminal sanction."

It is the obligation of the International Community to preserve the right to live, especially when genocide is the ultimate crime, the most grave violation of human rights that humans can commit. Consequently, the International Community must discover it, prosecute it, and adequately punish it. The investigation of these crimes must be difficult, especially when the body that threatens death, or is responsible or complicit in death, is the very State. This is true above all if one takes into account the obstructionary labor carried out by the government in question. Such action was foreseen by the UN in the Convention on the Prevention and Punishment of the Crime of Genocide, of 9 December, 1948, and to which Spain subscribed on 13 September of 1968, with a total reservation to article 9, which refers to the jurisdiction of the International Court of Justice over the interpretation, application, and execution of the Convention.

The crime of genocide is defined in the Convention of the 9th of December of 1948, and this definition has been included in our own Judicial Code, through the law 44/1971 of 15 November, as a consequence of our adherence to the Convention. This law adds article 137 two into chapter III, as one of the crimes against the rights of Man listed in title I (Crimes against the Exterior Security of the State) of book II of the Penal Code. This crime has not been removed from the Code since then. It is currently found to be regulated by article 607, chapter II (Crimes of Genocide), Title XXIV (Crimes against the International Community), book II.

Second - The Ministerio Fiscal alleges secondly that Spain would not be competent to judge the denounced crimes of terrorism committed abroad, given that the Organic Law of Judicial Authority entered into effect on 3 August of 1985, whereas the actions denounced by the plaintiffs were committed before, and given the absolute prohibition on retroactivity.

We must similarly reject the abovementioned allegation given that, until the creation of the Audiencia Nacional, competence to judge acts of international terrorism was based in the Code of Military Justice through the law 42/1971 of 15 November; since the creation of the Audiencia Nacional, competence has been assumed by this body.

The Code of Military Justice, in its 17th article, had already determined in 1971 that "Spaniards or Foreigners who commit, in a foreign country, a crime contained in this Code or in other Military Penal Codes," will be tried in Spain. Consequently, we insist that the universal prosecution of terrorism has been recognized in the Spanish legal order since the abovementioned year. The Sala de lo Penal of this Audiencia Nacional, in a sentence of 20 November, 1991, affirmed the permanent competence of that body for the prosecution of crimes of terrorism committed outside our national territory.

Third - The Ministerio Fiscal signals that the court also lacks competence to judge the crimes of torture that have been denounced, given that the Convention Against Torture of 10 December of 1984 establishes in its 5th article that competence to judge those crimes will rest with the signatory state in whose territory the acts were committed.

The crime of torture was introduced into the Spanish Penal Code by the Organic Law 31/78 of July. It can be found in article 204.2 of the Penal Code, in the crimes against the Interior Security of the State. In this matter, one must keep in mind article 7 of the International Pact on Civil and Political Rights of 16 December, 1996, ratified by Spain on 27 April of 1977, which prohibits torture, as well as inhuman and degrading treatment. Article 5.1 of the Convention Against Torture, of 10 December, 1984, establishes that, "All States party to the treaty will take all necessary measures in order to institute their jurisdiction over the crimes referred to in article 4...when the victim is a national of that State and when that State considers it appropriate; article 3 of the Four Conventions of Geneva of 12 July, 1949, ratified by Spain, which refer to the basic norms applicable to all armed conflict, including non-international or internal conflict, prohibits torture and inhuman treatments at all times. These principles, when considered in relation to article 23.4-G of the Law of Organic Judicial Authority leaves little doubt of its identity with the crime of torture, recognized by the Penal Code in force.

Fourth - The Ministerio Fiscal alleges, however, that litispendence exists, given that the Appeals Court of Santiago de Chile has asserted jurisdiction over similar complaints against the ex-President of Chile, Mr. Augusto Pinochet Ugarte. It is then necessary, in order to reliably verify the truthfulness of the documentation provided, to send immediately an International Rogatory Commission so that the Most Excellent Court of Appeals of Santiago de Chile may, with the utmost possible speed, certify the truthfulness of the documentation provided, and it is therefore agreed,

In consideration of the abovementioned


First -That the jurisdictional competence of this body is maintained, in order for the proceedings of the investigation to proceed.

Second - That an International Rogatory Commission will be sent to the judicial authorities of Santiago de Chile, in order that they may certify, with the utmost possible speed, if there exist open criminal cases against Mr. Augusto Pinochet Ugarte, and in the event that there are, the number of the same and the crimes which they allege.

This writ is not final and appeal to this Court may be made within the next three days.

To this I agree, order, and sign D. Manuel Garcia-Castellón, Judge-Magistrate of the Central Investigatory Court number six.

This I dispatch. That this be immediately executed, I give faith.

Unofficial translation and original information provided by the Director of the Plaintiffs team in the Pinochet case before the Audiencia Nacional of Spain

Human Rights in Chile | Trial against Pinochet

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