El principio de jurisdicción universal (o la búsqueda del equilibrio entre "lo posible" y el "deber ser")

Resumo

For the study of the principle of universal jurisdiction, this Doctoral Thesis has been divided into two parts, each one of them composed of two chapters, and it seeks a better understanding, from an internationalist point of view, of the principle. The first part has been devoted to the general theory of the principle of universal jurisdiction, understanding that it was necessary to have clear basic concepts to better address the second part, centered on the praxis of the principle by states, in particular, in the practice of the Spanish State. Regarding the first chapter, Universal jurisdiction: concept, origins and configuration, it was assumed that, in the first place, it was necessary to know the different jurisdictional principles in order to later approach the concept of universal jurisdiction, as well as the different modalities of exercise that the principle has. Then, to see the evolution that the principle of universal jurisdiction had experienced, its history was addressed, divided in the same phases in which International Criminal Law has been formed, observing how this is nothing more than an institutional creature, in that the International Law Commission has not had the relevant role that it perhaps should. This chapter concludes with an analysis of its foundation, cornerstone of its existence, and its nature, understood as double, not only from the state perspective but, in the light of contemporary International Law and International Human Rights Law, we can not but understand the principle of universal jurisdiction also as a right of victims of access to justice. The second chapter has focused on the analysis of the exercise of the principle of universal jurisdiction. Therefore, those crimes that can be "protected" under the umbrella of universal jurisdiction are established, based on those included in the Statute of the International Criminal Court (1998) and, even, according to their characteristics, proposing some others that can become, with state practice, the future of the exercise of universal jurisdiction. Having established its purpose, the jurisdictional difficulties that may arise in the exercise of the principle are analyzed, analyzing for this the rules of the game (principle of primacy, principle of complementarity and principle of subsidiarity) that regulate the board of jurisdictions and their relationships (horizontal and vertical) to each other. This chapter focuses on the principle aut dedere aut iudicare and on the principle of responsibility to protect, seeing how the first of them has become an indispensable mechanism today in the application of the universal principle; and in the various legal guarantees that accompany the process in which the exercise of universal jurisdiction takes place, fundamentally the nullum crimen sine iure principle and the ne bis in idem principle. This first part ends with a statement about purpose, why there is universal jurisdiction, surprised by the multiple responses we obtained together with the fight against impunity for the most serious crimes. The third chapter, the current state of the practice of the jurisdiction, is dedicated to the state praxis. This practice is currently reduced to various legislative conditions such as connection links, immunities, prescription or amnesties, but there are also judicial and political actions that hinder the exercise of universal jurisdiction. Included in this chapter is a section on the criticisms and reproaches that can be made to the exercise that States make of universal jurisdiction when, forgetting their foundation, they prioritize their interests over those of the Community. The fourth, and last, chapter is dedicated to the various formulations of the principle of universal justice in Spain, from the Organic Law 6/1985, of July 1, of the Judiciary (BOE, núm. 157, of July 2, 1985) until the last reform operated by the Organic Law 2/2015, of March 30, which modifies the Organic Law 10/1995, of November 23 of the Penal Code (BOE núm. 77, of March 31 of 2015). A total of seven reforms that vary between the broadening of the list of crimes subject to universal jurisdiction and the extension of the number of links of connection with the Spanish State that must be fulfilled in order to be able to exercise the principle of universal jurisdiction in Spain. At the closing of these lines and from September 9, 2016, a Proposition of organic law of modification of the Organic Law 6/1985, of July 1, of the Judicial Power, concerning the improvement of universal justice is stored in some drawer of the Congress of Deputies hoping that Spain does not continue violating its international obligations.