This project is called Principle of Universal Justice: Rationale and Limits. The principal resarcher is Ana Isabel Pérez Cepeda and the duration is 01/01/2010- 31/12/2012. The funding body is the Ministry of Education, Culture and Sport from the Government of Spain (Identifier: DER 2009-11767).
Besides, this project has achieved three interlinked goals:
Firstly, the analysis of the nature and rationale behind the principle of universal jurisdiction aims at the determination of whether such principle has a penal nature (extension of the scope of application of national penal norms) and/or a procedural nature (extension of the reach of State jurisdictional powers). The project has also aimed at analysing the sources of the power/right of States to extend the scope of application of their national penal legislation and/or the reach of their jurisdictional powers. Both aspects have been essential for the subsequent determination of the notion, object and application requirements of the principle of universal jurisdiction.
Secondly, the analysis of the relationship between those organs which exercise the ius puniendi of the International Community, and those other organs of national jurisdictions which act pursuant to the principle of universal jurisdiction. Particular attention has been given to the principle of complementarity, which regulates the relationship between the International Criminal Court and national jurisdictions acting under the principle of universal jurisdiction. In this regard, special mention has had the analysis of the consequences of the Organic Law 18/2003, about Cooperation with the International Criminal Court, for the exercise of the principle of universal jurisdiction in Spain, as well as for the proper functioning of the principle of complementarity. The goal was to ascertain the criteria that should regulate the phenomena of concurrent (horizontal and vertical) jurisdictions and their cooperation in criminal matters, as well as the conditions under which national jurisdictions should act pursuant to the principle of universal jurisdiction. In light of the material and jurisdictional limitations of the International Criminal Court, the principle of universal jurisdiction, if exercised under adequate conditions, can constitute a real alternative to international investigations and prosecutions.
Thirdly, one of the main features of the project was a critical analysis of the scope of the principle of universal jurisdiction in the Spanish legal order. The project aimed at assessing the legislative and jurisprudential areas relating to the principle of universal jurisdiction, and in particular:
- a) Examining the open-ended list of crimes provided for in article 23 (4) of the Spanish Organic Law on the Judicial Power for the purpose of proposing a closed list of crimes to which the principle of universal jurisdiction should be applied. The goal was to prevent the realpolitik and the lack of cooperation in the persecution of transnational organised crime from shaping the range of crimes that are subject to the principle of universal jurisdiction.
- b) Exploring the importance of the principle of universal jurisdiction in Spanish case law and assessing the teleological interpretation of such principle in a number of judicial decisions. Particular attention must be given to the consequences of the 26 September 2005 Judgment of the Spanish Constitutional Court (núm. 23712005) for the exercise in Spain of the principle of universal jurisdiction. In this judgement the Constitutional Court eliminated the requirement established by the Penal Chamber of the Spanish Supreme Court that the relevant crimes must have a connection with Spain. As a result, there is a need for the determination of the conditions and limits under which the principle of universal jurisdiction should be exercised in Spain.
- c) Proposing new normative schemes to regulate the principle of universal jurisdiction in Spain. In carrying out this task, has been taken into consideration comparative law, as well as the September 2008 Resolution of the International Association of Penal Law, being of particular assistance in light of the need to specify the crimes subject to such a principle, as well as for establishing clear criteria for its application. Otherwise, the principle of universal jurisdiction is likely to disappear from the Spanish legal order.