In 1999, Guatemalan Nobel Peace Prize winner Rigoberta Menchu filed a lawsuit in Spain against Guatemalan officials, including the former Minister of the Interior, alleging injuries from crimes of genocide, torture, terrorism, murder and illegal detention committed in Guatemala between 1978 and

The Spanish court of first instance dismissed the case in 2000, opining that the Guatemalan courts should try the alleged crimes. The Spanish Supreme Court, in a 2003 decision, agreed with plaintiff's jurisdictional theory, but only for crimes involving Spanish victims. Menchu obtained review in the Constitutional Tribunal of Spain. The Tribunal reverses the Supreme Court decision, and holds that it violated Menchu's constitutional rights.

The Tribunal considers that the Supreme Court's determination that universal unilateral jurisdiction is only legitimate when treaty law expressly authorizes it, constitutes an "extremely rigorous" interpretation of the Convention on the Prevention and Punishment of the Crime of Genocide (in effect for U.S. on February 23, 1989). The Tribunal holds that the Convention does not bar countries from enacting internal legislation and other measures to prosecute these crimes. It "leaves open to the signatory countries the possibility of establishing further mechanisms for the prosecution of genocide." [Slip op. 28]

The Tribunal also analyzes the "radically restrictive interpretation" by the Supreme Court of Article 23.4 of the Spanish Organic Law of the Judiciary [SOLJ] [Ley Organica del Poder Judicial], which defines the international jurisdiction of the Spanish courts. In its 2003 decision, the Supreme Court had ruled that SOLJ Article 23.4 requires certain "bonds of connection" in order to justify the exercise of international jurisdiction by Spanish courts. These include (1) the Spanish nationality of the victim, (2) the presence of the alleged criminal on Spanish territory or (3) the existence of other contacts to its national interests.

Such a restrictive interpretation of Article 23.4 of the SOLJ, according to the Tribunal, "... [i]mplies an infringement of the right of access to process," [Slip op. 26] which Article 24.1 of the Spanish Constitution recognizes. Of these three "bonds of connection," only the presence of the wrongdoer in Spanish territory is an "absolute requirement." [Slip op. 32] This nexus, however, is not a sine qua non basis for jurisdiction.

As to the Spanish nationality of the victim, the Tribunal finds that it "incorporates an added requirement that is not contemplated in the law" and that it "contradicts the very nature of the crime [genocide] and the aspiration of its universal prosecution." [Slip op. 33] The Tribunal points out that "...[t]o invoke universal extraterritorial jurisdiction, there must be serious and reasonable indications of judicial inactivity to show an unwillingness, either intentional or by lack of ability to effectively prosecute the crimes." [Slip op. 26]

In the opinion of the newspaper The Washington Post, the ruling could boost the filing of cases in Spain over human rights abuses in other countries.

Citation: Second Senate of Spanish Constitutional Tribunal, Appeals of cases 1744/2003, 1755/2003 and 1773/2003, STC xxx/2005 [La Sala Segunda del Tribunal Constitucional ... Sentencia En los recursos de amparo nums. 1744/2003, 1755/2003 y 1773/2003 ...]. [Excerpts in this article translated by Maria Julia Bocca]. The opinion is available on website of University of Barcelona at "http://www.ub.es/dpenal/"; The Washington Post, October 6, 2005, page A20.