Constitutional Court Judgment No. 237/2005, of September 26 (Unofficial translation) The Second Chamber of the Constitutional Court comprising Mr. Guillermo Jiménez Sánchez, President, Mr. Vicente Conde Martín de Hijas, Ms. Elisa Pérez Vera, Mr. Ramón Rodríguez Arribas and Mr. Pascual Sala Sánchez, Judges, has rendered IN THE NAME OF THE KING the following J U D G M E N T in the appeal for protection proceedings Nos. 1744-2003, 1755-2003 and 1773-2003, the first of which was filed by Ms. Rigoberta Menchú Tumn, Ms. Silvia Solórzano Foppa, Ms. Silvia Julieta Solórzano Foppa, Mr. Santiago Solórzano Ureta, Mr. Julio Alfonso Solórzano Foppa, Mr. Lorenzo Villanueva Villanueva, Ms. Juliana Villanueva Villanueva, Mr. Lorenzo Jesús Villanueva Imizocz, Ms. Ana María Gran Cirera, Ms. Montserrat Gibert Grant, Ms. Ana María Gibert Gran, Ms. Concepción Gran Cirera, Mr. José Narciso Picas Vila, Ms. Aura Elena Farfán, Ms. Rosario Pu Gómez, C. I. Est. Prom. Derechos Humanos, Mr. Arcadio Alonzo Fernández, Conavigua, Famdegua and Ms. Ana Lucrecia Molina Theissen, represented by Court Procurator Ms. Gloria Rincón Mayoral and defended by the attorney Mr. Carlos Vila Calvo, and by the Confederación Sindical de Comisiones Obreras, represented by Court Procurator Ms. Isabel Cañedo Vega and defended by the attorney Mr. Antonio García Martín; No. 1755-2003 by the Asociación de Derechos Humanos de España, represented by Court Procurator Ms. Irene Gutiérrez Carrillo and defended by the attorney Mr. Víctor Hortal Fernández; and No. 1773-2003 by Asociación libre de Abogados, Asociación contra la Tortura, Associació d’Amistat amb el Poble de Guatemala, Asociación Centro de Documentación y Solidaridad con América Latina y África and Comité Solidaridad Internacionalista de Zaragoza represented by Court Procurator Ms. Isabel Calvo Villoria and defended by attorney Mr. Antonio Segura Hernández, and by Asociación Argentina Pro-Derechos Humanos de Madrid represented by Court Procurator Ms. Isabel Cañedo Vega and defended by attorney Mr. Carlos Slepoy Prada, against Supreme Court Judgment No. 327/2003 of February 25, rendered in Cassation Appeal Proceedings No. 803-2001, which partially allows the cassation appeal filed against the En Banc Order of the Criminal Chamber of the National Court of December 13, 2000, rendered in Appeal Proceedings No. 115-2000, with the intervention of the Public Prosecutor. Judge Guillermo Jiménez Sánchez wrote the opinion of the Court. I. Findings of Fact 1. a) In a brief registered at this Court on March 26, 2003 under No. 1744-2003 Court Procurator Ms. Gloria Rincón Mayoral representing Ms. Rigoberta Menchú Tumn and others as indicated above, and Court Procurator Ms. Isabel Cañedo Vega representing Confederación Sindical de Comisiones Obreras filed an appeal for protection against the decisions cited in the heading. b) In a brief registered at this Court on March 27, 2003 under No. 1755-2003 Court Procurator Ms. Irene Gutiérrez Carrillo representing Asociación Pro Derechos Humanos de España filed an appeal for protection against those same decisions. c) In a brief registered at this Court on March 27, 2003 under No. 1773-2003 Court Procurator Ms. Isabel Calvo Villoria represented by Asociación Libre de Abogados and others as indicated above, and Court Procurator Ms. Isabel Cañedo Vega, representing Asociación Argentina Pro- Derechos Humanos, likewise filed an appeal for protection against the aforementioned decisions. 2. The appeal is based on the following facts summarized below with respect to the object of the petition for protection: a) On December 2, 1999 Ms. Ribogerta Menchú Tumn filed a crime report at the duty court of the National Court, detailing events which she described as possible crimes of genocide, torture, terrorism, murder and false imprisonment perpetrated in Guatemala between 1978 and 1986 by different persons who during that period held positions of civil and military authority. The events set forth in the report include the assault on the Spanish Embassy in Guatemala in 1980, in which 37 people died, as well as the death of several priests of Spanish and other nationalities, and family members of the complainant. She deemed the Spanish National Court to have jurisdiction to hear these matters pursuant to the provisions of Art. 23.4, paragraphs a), b) and g) of the Organic Law of the Judiciary (hereinafter, “LOPJ”). The filing of the crime report, assigned to Central Criminal Investigation Court No. 1, was followed by numerous individuals and associations entering an appearance in the proceedings including, among others, the present appellants. b) On January 13, 2000 the Public Prosecutor sought to have the proceedings dismissed, deeming that Spain lacked jurisdiction in the matter. In an Order issued on March 27, 2000 the judge of the Central Criminal Court No. 1 rejected the motion, established the court’s jurisdiction, accepted the proceedings against the accused and the criminal complaints as filed, and ordered several investigations, including a petition addressed to the Guatemalan authorities to clarify whether at present there are any criminal proceedings pending against the accused for those same events, particularly those that occurred at the Spanish Embassy, and asking that they “indicate, if applicable, any suspension or continuance of the proceedings, the grounds therefor and the dates” and “any decisions to close or dismiss” the proceedings. In summary, and among other arguments that are not relevant to the appeal for protection, the investigating judge based his decision on the “clear appearance of genocide”, since this concerned the extermination of the Mayan people “on the pretext that they supported, concealed —or even instigated— the insurgency or revolution”, and, thus, pursuant to paragraph 4 a) as it relates to paragraph 2 c) of Art. 23 and Arts. 65.1 and 88 of the LOPG, the judge had jurisdiction to hear this offense, which included all others described in the crime report. Moreover, he added that the National Reconciliation Law (hereinafter “LRN”) of Guatemala only grants amnesty to participants in the “the armed conflict”, the existence of which (as alleged by the prosecutor) is “a factual element pending proof”; that Art. 23 of the LOPJ is a law of procedure and, thus, the principle of the non-retroactivity of unfavorable penal norms is not applicable; that the matter is not res judicata, since there is no evidence that other proceedings based on the same events are being heard in Guatemala, in addition to the fact that the states in which this type of offenses are committed cannot claim interference with their sovereignty, since the judges of the state that assumes repressive jurisdiction exercise their own sovereignty, based on the preservation of the common interests of civilized humanity; therefore not attempting to elude the territorial jurisdiction of Guatemala, which “is not exclusive, since in the absence of any honorable and efficient exercise of that jurisdiction it must be supplemented by courts —such as those in Spain— that base the extraterritoriality of their jurisdiction on the internal and international principal of universal repression... without ignoring that Art. 6 of the 1948 Convention imposes the subsidiarity of Spain’s jurisdiction with respect to the state in which those multiple events occurred.” c) The Public Prosecutor filed a reconsideration appeal which was dismissed in an Order issued on April 27, 2000 on grounds substantially the same as those expressed in the decision under appeal, and the Prosecutor likewise appealed that order to the court above, which the Criminal Chamber of the National Court sitting en banc allowed in its Order of December 13, 2002, declaring that “exercising Spanish jurisdiction with respect to the events in question is not warranted at this time, and the investigating judge should therefore close the investigation”. The Court deemed that the investigating judge’s arguments coincided with the grounds set forth in that Court’s Orders of 4 and 5 November 1998 “with respect to Chile and Argentina”, but “not with the factual premise of failure to act on the part of the Guatemalan courts”. The Order specifically stated that: 1) it is necessary to balance the principle of universal repression of Art. 23.4 a) of the LOPJ with the criteria of Art. 6 of the Convention on Punishment of the Crime of Genocide of December 9, 1948 (hereinafter, “Convention on Genocide), applicable pursuant to Arts. 96 of the Spanish Constitution (hereinafter “CE”) and 1.5 of the Civil Code, which obliges the state in which the events occurred to establish a jurisdiction to prosecute them, although this does not preclude other jurisdictions, nevertheless applying the principle of subsidiarity of the latter with respect to the former; 2) this principle implies refraining from exercising jurisdiction in another state when the events are being tried in the state in which they occurred or by the International Criminal Court; 3) “in contrast to Chile and Argentina”, the Guatemalan courts’ failure to act has not been demonstrated since, first, there is no legislation that would preclude local judges from acting [given that Art. 8 LRN expressly excludes the extinction of criminal liability with respect to —among others— the crime of genocide and, moreover, the Commission for Historical Clarification (CEH) created by the Oslo Accords of 1994 expressly recommends compliance therewith “in order to pursue and try” such crimes] and, second, if the Guatemalan courts were previously intimidated, there is no indication that they refrain from acting today if criminal proceedings are brought before them, without there likewise being any indication that the time elapsed reflects a failure to act, since the material on which the initial accusation is based [the CEH’s report] was issued on February 2, 1999, and the crime report was filed on December 2 of that year “without being accompanied by any Guatemalan judicial decision rejecting it”. d) The complainants filed a cassation appeal against that order, which the Supreme Court resolved in a judgment against which the constitutional appeal for protection was filed.