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09Jul08

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Text of the report of the Prosecutor's Office of the National Court (Audiencia Nacional) supporting the admission of the case concerning the Spanish victims of the National Socialist concentration camps and confirming the jurisdiction of the Court.


OFFICE OF THE PROSECUTOR OF THE NATIONAL COURT

Preliminary Proceedings n 211/08
Central Investigative Court n 2

THE PROSECUTOR, carrying out the transfer conferred through the ruling handed down this past 23 June regarding the competence of the Spanish Courts to hear the case initiated by the submission of the complaint declares that:

1.- The lawsuit concerns crimes against humanity arising from the facts set out in the lawsuit which can be summarised as follows:

" In the National Socialist concentration camp of Mauthausen more than 7000 Spaniards were held as prisoners, of which more than 4300 died. This was also the case at the Sachsenhausen and Flossenburg camps. During the period between 1942 and April 1945, those camps housed thousands of people, among them numerous Spaniards. Having been detained against their will because of their race, religion, nationality or political beliefs, the prisoners were subjected to extermination programs designed by the National Socialist system. The prisoners interned in these three camps were subjected to extreme forms of mistreatment and abuse, including murder.

A significant number of Spaniards arrived as prisoners in deportation convoys from several European cities, and were subjected to inhuman treatment, violence... up to and including death in many instances.

The following individuals served as armed guards of the SS Totenkopf in those camps:

- Johann LEPRICH
- Anton TITTJUNG
- Josias KUMPF
- Iwan (John) DEMJANJUK

According to the complaint, it has been certifiably documented in various reports and pieces of evidence that these individuals participated in the persecution and punishment of people being interned in the camp; they belonged to the Totenkopf SS battalion and served as armed guards in the various aforementioned concentration camps."

2.- As expressed in the Supreme Court ruling of 25 February 2003, "the extension of the principle of extraterritoriality of criminal law, as a consequence, is justified by the existence of the individual interests of each State, which explains why it is currently indisputable that there is international acceptance of a State's right to pursue the perpetrators of crimes committed outside of its national territory based on the principle of defense or protection of its interests, and on that of active or passive participation. In this case, the unilateral establishment of such jurisdiction acquires its fundamental, though not exclusive, meaning and foundation in the need of a National State to protect those interests."

As is stipulated in that ruling and was reaffirmed in the 8 March 2004 decision by that same Court, no State "is entitled to unilaterally seek to stabilize order, through recourse to Criminal Law, against everyone and around the world; rather, there shall exist a point of connection to legitimize the extraterritorial reach of its jurisdiction."

The prosecution of the act shall be limited by having to seek a point of connection with the interests of the state that seeks prosecution - in this case the existence of Spanish citizens - in the sense that the national jurisdiction shall be activated in cases in which the act was not prosecuted in the place where it was committed or by another Court, including an international one, in order to prevent offenses against the common interests of all States from going unpunished - which is the ultimate purpose of the principle of Universality of Criminal Law - a circumstance not present in the case at hand.

The aforementioned Ruling of 25 February 2003 and the one from 8 March 2004, state "that the principle of minimal intervention in the affairs of another state (Article 27 of the United Nations Charter) admits limitations in matters related to human rights, but those limitations can only be unobjectionable when the possibility of intervention is accepted through treatises between States [or] is decided by the International Community [sic]," whereby we must refer to what was expressly indicated in the Rome Statute of the International Criminal Court.

Thus, it shall be the Supreme Court itself, in its rulings of 25 February 2003 and 20 May 2003, as well as the ruling by the Constitutional Court from 26 September 2005 (Guatemala case), which establishes the necessary conditions whereby the Spanish courts can have jurisdiction and these require the existence of a logical connection with a Spanish national interest directly relating to the crime of genocide which it seeks to prosecute, whereby there exists a connection because of the victims' nationalities since the complaint charges the commission of the crime of genocide against Spaniards.

3.- We cannot forget that the Convention of 9 December 1948, on the punishment of genocide (to which Spain adhered on 13 September 1968, and which entered into effect on 13 December of the same year) provides in article 6 "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 penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction". As the Supreme Court in its judgement of 08.03.04 recalls with respect to this crime, article VIII of this Convention establishes that "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide".

The same can be said with respect to the alleged crime of Torture, referred to in this lawsuit, particularly if one bears in mind the provisions of article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (ratified by Spain 21.10.87) which provides that each State Party shall take all type of measures and make all necessary provisions to persecute the acts of such nature in any territory under its jurisdiction, evidently establishing as the principal and primary forum that of the State where the crime was committed and, as we understand, secondarily, for the reasons stated, that of the State where there is at least a personal link with the alleged victims.

No international instrument, be it the Convention on the Prevention and Punishment of Crimes Committed Against Internationally Protected Persons dated 14 December 1973, the Convention for the Suppression of the Unlawful Seizure of Aircraft dated 16 December 1970, or more recent ones such as the International Convention for the Suppression of the Financing of Terrorism dated 9 December 1999, expressly provides for universal jurisdiction, which results in the need to interpret it in its legal terms and reach.

Consequently, considering the provisions of the said Conventions in the context of our art 23.4 of the L.O.P.J. [Organic Law of the Judicial Branch] of 1985, article 607 of the Criminal Code concerning Genocide and article 173 et seq. concerning the crime of Torture would apply to all those who engage in any of the acts referred to in these provisions, independently of where such acts were committed, provided always that there exists a connection with the State that seeks the action.

The category of crimes against humanity is a pre-existing category in International Law, which originated in customary law and establishes the prohibition of inhuman acts against the civilian population, as well as politically, racially and religiously motivated persecutions, ius cogens, imposing upon the States an obligation to prosecute and punish them. The prohibition against the commission of crimes against humanity has been part of customary international law in effect for many decades, with application erga omnes including with respect to Spain notwithstanding that the specific crime and its punishment were not incorporated into the Spanish Criminal Code until 2004.This prohibition was translated into Article 137 bis, and then into 607, and currently 607 bis, without interruption.

The legality principle applicable to international crimes such as crimes against humanity is not domestic, but rather international, as contained in Article 15 of the International Covenant on Civil and Political Rights of 1966 which was ratified by Spain on 27 April 1977 (Official State Bulletin from 30 April 1977), according to which:

1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

The current Criminal Code can be retroactively applied to prior conduct which was already criminal under international criminal law when it was committed; that is to say conduct which was criminal because it was prohibited by customary international law at that time notwithstanding that it was not defined in the Spanish Criminal Code.

International criminal law must be established having regard both to written conventional law, both national and international, and to customary law or the general principles governing civilised nations. Article 38 of the Statute of the International [Court of] Justice points to the following as sources of international law:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

- international conventions,
- international custom
- the general principles of law recognized by civilized nations, judicial decisions and published doctrines, as subsidiary means.

In cases in which a national court applies universal jurisdiction, it acts as an organ of the international community and such application is justified by international law.

Therefore, the principles of domestic legality and international legality that are applicable and in force for international crimes coexist. Spain has, without reserve, ratified the international instruments for the protection of human rights, in accordance with Article 19.2 of the Spanish Constitution.

Crime against humanity (prohibited by a norm of ius cogens) is a crime under international law independently of whether there exists under domestic law a specific criminal provision prohibiting it.

Thus, the ruling handed down by the European Court of Human Rights on 17 January 2006, confirming its doctrine, issued in the case of Kolk and Kislyiy vs. Estonia, makes reference to this issue stating that nothing shall prejudice the trial and punishment of a person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations. This is the case for crimes against humanity, regardless of the date on which they were committed. The ECHR also affirms that even in the situation where the acts would have been considered legal under domestic law in effect at the time, if the local tribunals have considered that they constituted crimes against humanity, as crimes originated in customary law, [they are] are internationally attributable to the subject who committed them.

The International Covenant on Civil and Political Rights of 1966, in Article 15.2, as previously stated, contains the principle of international criminal legality.

Finally, the Statutes of the International Criminal Court (Article 6 Genocide and Article 7 Crimes against Humanity), of the Tribunal for the former Yugoslavia (Article 4 Genocide and 5 Crimes against Humanity) and of the Tribunal for Rwanda (Article 3 Genocide and Article 4 Crimes against Humanity), crystallise this classification [of the offences], establishing their international characterization, as do various domestic laws such as that of the Spanish Criminal Codes of 1973 and 1995, the latter even broadening the crime of genocide in comparison with conventional international law.

As a result of the foregoing the competence of the Court should be accepted to hear the facts and admit the complaint formulated in order to carry out the necessary procedures with a view to clarify and investigate said facts."

Madrid 9 July 2008


Documentation Note: Translated from the original Spanish version into English by Nizkor International Human Rights Team.

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