***UNOFFICIAL TRANSLATION*** NATIONAL COURT (AUDIENCIA NACIONAL) CRIMINAL DIVISION (SALA DE LO PENAL) SECOND SECTION N.I.G.: 28079 27 2 2009 0002067 CASE NUMBER: APPEAL OF RULING 66/2010 ORIGINAL PROCEEDING: PRELIMINARY PROCEEDINGS ABBREVIATED 150/2009 ORIGINAL ORGAN: CENTRAL COURT INSTRUCTION NO. 5 RECORD OF PROCEEDINGS JUDICIAL CLERK GUILLERMO FERNANDEZ REGUERA In Madrid, on the sixteenth of May of two thousand and eleven. I am issuing this in order to put on record that, on this day, this Section received copies of the ruling and dissenting opinion of April 6, 2011, issued by the Plenary of the Criminal Division. It is hereby added to the case file, the parties are notified and the testimony is sent to the Court. I so attest. ***UNOFFICIAL TRANSLATION*** NATIONAL COURT CRIMINAL DIVISION PLENARY SESSION Preliminary proceedings number 150/09 of the Central Preliminary Proceedings Court number 5. Appeals proceeding of the Second Section no. 66/2010 ORDER Honorable Mr. Presiding Magistrate: Javier Gomez Bermudez. Honorable Magistrates: F. Alfonso Guevara Marcos. Fernando Garcia Nicolas. Angela Murillo Bordillo. Guillermo Ruiz Polanco. Angel Hurtado Adrian. Teresa Palacios Criado. Manuel Fernandez Prado. Paloma Gonzalez Pastor. Angeles Barreiro Avellaneda. Javier Martinez Lazaro. Julio de Diego Lopez. Juan Francisco Martel Rivero. Ramon Saez Valcarcel. Clara Bayarri Garcia. Enrique Lopez Lopez. 1 ***UNOFFICIAL TRANSLATION*** Madrid, April 6, 2011 BACKGROUND 1. The Public Prosecutor’s office filed an appeal against the ruling of October 29, 2009 which admitted for processing the complaint filed by Lachen Ikassrien in the preliminary proceedings of Central Court number 5 summarized above. 2. Said appeal was sent to the Second Section of this Division which, in a resolution dated June 7, 2010, agreed to send it on to the president of the Division to see if he considered it necessary to refer it to the plenary according to article 197 of the LOPJ (Organic Law of the Judicial Branch). 3. As a result of a decision reached by the president of the Division on January 12, 2011, a court was called to be formed to resolve the appeal to be made up of all of the judges of the Division, and the Honorable Mr. Gomez Bermudez was appointed to be the reporting judge, and the deliberations were scheduled to start on January 27, 2011. 4. On January 24, 2011, it was shown that by mistake, the Honorable Garcia Nicolas had been omitted in the rotation of reporting judges, and a new order was issued to name that judge as the reporting judge and the proceedings were suspended until the appeal was to begin. 5. On February 1, the investigating court was asked to send a copy of a brief from the Public Prosecutor’s Office submitted after the 2 ***UNOFFICIAL TRANSLATION*** submission of the initially sent and received copy, and as per court order of February 16, the proceedings were scheduled for February 25 and 25, 2011. 6. On the date indicated above, once the plenary session had been established with the judges listed in the first page of this resolution , the opinion of the reporting judge was not supported by the majority, and he announced a dissenting opinion, which resulted in the appointment of the Honorable Gomez Bermudez to be the new reporting judge for the majority opinion. LEGAL FOUNDATIONS 1. Defining the scope and purpose of the appeal The Public Prosecutor’s office is appealing the court order of October 29, 2009, issued in the preliminary proceedings indicated on the cover page. Said ruling admitted for processing “the complaint filed by Lahcen Ikassrien, as the injured party, for torture, against the material authors and anyone else who is responsible for the acts” (literal transcription from the effective part of the challenged order). In addition, the resolution being appealed “dismisses” the complaint filed against the people defined in it “because the claimed facts are not proven” and orders the letters rogatory sent in June and October 2009 to the United Kingdom and the United States to be resent. The facts occurred, according to the complaint, on a military base that the United States of America has in Guantanamo, Cuba. The appeal, filed on November 13, 2009, contains 3 arguments: 3 ***UNOFFICIAL TRANSLATION*** a) An incongruence between the ruling part of the order being challenged and that which appears in the first and second justifications regarding the need to wait for a response from the United States of America regarding the existence of ongoing proceedings on the matter being debated before the jurisdiction where the events occurred. b) Incongruence of omission because the resolution in question does not address all of the issues raised by the Public Prosecutor’s Office in its brief of October 6, 2009. c) Lack of jurisdiction, since the requirements imposed by the second paragraph of article 23.4 of the LOPJ, in the version given by L.O. (Organic Law) 1/2009 of November 3, are not met. These are the terms and limits of the debate, the purpose of the appeal, the only issues that this court must respond to. 2. First and second motives for the appeal. The challenged court order, dated October 29, 2009, cannot be understood without the order of April 27, 2009, which initiated the preliminary proceedings 150/2009 “for alleged crimes as per articles 608, 609 and 611, in relation to articles 607 bis and 174 of the Criminal Code” arising from events in which Lahcen Ikassrien, among others, appears as an injured party. This first order to initiate preliminary proceedings was not appealed by the Public Prosecutor’s Office, however this office, in a petition dated October 6, 2009, upon considering the notification sent to it by order of the court regarding the admission of the complaint filed by Lahcen Ikassrien, who had been injured by the events being investigated, objected to the admission of the case and to its status as an individual accusation of the person in question. 4 ***UNOFFICIAL TRANSLATION*** From the above, it follows that the admission of the complaint filed by Lahcen Ikassrien for processing does not imply the opening of a new proceeding, but simply the granting of the status of party to a person who already appeared as an injured party in the preliminary proceedings regarding the same events reported in the complaint, regardless of any legal ruling issued regarding these events in the interim. Precisely because there was already a proceeding opened previously, there is no incongruence between the justifications put forth in the order being appealed and its ruling part, since the admission of the complaint does not alter nor impact the hypothetical concurrence of jurisdictions, especially when in the ruling part of the resolution the letters rogatory are to be “resent” to the United Kingdom and the United States of America, which are intended to determine whether or not there is an ongoing proceeding regarding the same events in a preferential jurisdiction, so that once this information is received, the presiding judge, could freely provisionally stay the proceedings or affirm Spanish jurisdiction. In any case, the presumed injured party or victim cannot be required – as the Public Prosecutor’s Office asks in its petition of October 6, 2009 – to prove that no proceedings have been initiated involving an investigation and effective prosecution of said punishable facts in any other relevant country or in an international tribunal. This is an obligation that is not contained in the law, it is excessive and difficult or impossible to fulfill, and therefore it must be the Spanish judicial branch, on its own initiative, who must determine whether or not there is any action in the jurisdiction of the State in which the alleged facts took place – or in any other State – and in the jurisdiction of the International Community, in line with that ruled by the non-jurisdictional plenary session of this Court on November 3, 2005. 5 ***UNOFFICIAL TRANSLATION*** Finally, in relation to these first two reasons for the appeal, the existence or non-existence of proceedings on the same matter in other central preliminary proceedings courts exceeds the scope of an appeal against the admission of the complaint for processing. This should be resolved through the application of the rules of distribution, and in the event of a question or discrepancy, by the senior judge (article 167.2 LOPJ and similar articles of Regulation 1/2000, of July 26, of the governing bodies of the courts). 3. Relevant connection to Spain The third and final justification for the appeal is based on the argument that the requirements listed in the next-to-last paragraph of article 23.4 LOPJ in the version given by the L.O. 1/2009 of November 3, are not met. Said paragraph states: “Without prejudice to anything contained in international treaties and agreements signed by Spain, in order for Spanish courts to hear the above crimes, it must be demonstrated that the alleged persons responsible are in Spain or that there are victims of Spanish nationality, or that there is some relevant linkage with Spain, and in any case, that no proceedings have been initiated that involve an investigation and effective prosecution of said punishable acts in any other country or international tribunal.” Now that the question on the final part of said precept has been resolved – regarding the existence of a proceeding in another competent country or international tribunal – since the victim is a Moroccan citizen and it has not been demonstrated that the alleged perpetrators are in Spain, the jurisdiction can only be valid if there is evidence of some linkage that connects the case in a relevant way to Spain.