El delito de tortura y su relación con otros atentados contra la integridad moral

Abstract

1. OBJECTIVES Torture has been chosen as research topic in view to prove that, in the ware of the global fight against terrorism, this practice has come back to the legal and political debate. Its pertinence in the criminal process of the 21st Century has been advocated from functionalist positions like those defended by JAKOBS in his theory of the �criminal law of the enemy�. 2. METHODOLOGY This thesis follows a dogmatic approach analysing Spanish law in force, international public law, case law of the Spanish Supreme Court and Constitutional Court, doctrine of the bodies in charge of the enforcement of the international instruments that ban the torture, and work of the academia. 3. CONCLUSIONS Torture was abolished in Spain by the Royal Statute of Bayonne of 1808 and by the Constitution of Cadiz of 1812. Since the Criminal code of 1822, the new philosophy about torture has been reflected in the Spanish process of legal codification, punishing ill-treatment to prisoners or to persons under arrest. The Spanish Criminal code of 1995 included the criminal conducts of abuse of power by public officials or other persons acting in an official capacity, committing an outrage upon moral integrity, in Arts. 174 and 175. These are �pluri-offensive� crimes that protect the �moral integrity� and the �good functioning of the public administration�. Art.174 punishes a crime categorised as �of tendency� (�crime of endangerment� in the case of torture inflicted to obtain information or a confession, and �crime of internal intensified tendency� in the rest of the cases), �specific�, �in proper sense�, and in some cases, �permanent�. The justification of the torture is absolutely rejected. In relation to the causes of absence of guilt, the absence of imputability would be applicable as complete exemption, and the �unbearable fear�, understood as a case of exemption of obligation of behaving according to the law, would be an incomplete exemption. Concerning the �Iter Criminis�, the Spanish Criminal code of 1995 does not punish the preparatory acts to commit the offence, in contrast with the precedent code. About the circumstances that modify the liability, we will make an extensive analysis of the �unjustified delays�, criticising that they are considered in this crime. We get to similar conclusions related to the prescription, the pardon and the amnesty. When it comes to torture as international crime, we conclude that the crime against humanity (Art. 607 bis) sanctions behaviours of extreme gravity, understood as a plurality of actions (generality) following a pre-conceived policy (systematic action) that inflicts physical or mental suffering in times of war or of peace. It does not require finalistic elements, neither a distinct author, and the protected factor is the addition of the physical and mental integrity and the dignity of a plurality of civil individuals that the international community is interested in preserving. On the other hand, the war crime (Art. 608 and following ones) only can take place during an open conflict, it does not require a differentiated author, and the subjective elements are coincident with those of the Convention against torture of 1984. To prevent the impunity of the torture, the Convention against torture of 1984 establishes the cooperation between the parties in Art. 5. Related to this, this thesis analyses the principle of universal jurisdiction (Art. 23.4 of the Spanish Organic Act of the Judiciary Power), whose scope of application was restricted since the entry into force of the Organic Act 1/2009 of 3 November. Since then, Spain has a hybrid institution that mixes the principles of real and personal jurisdiction. Finally, the principle of �non refoulement� foreseen in Art. 3 of the Convention against torture is also studied as a limit to the extradition, analysing the burden of the evidence and its scope.