The applicability of universal jurisdiction have we forgotten to act as a society?

• Author: Dra. Andrea Spada Jiménez
• Profession: Associate Professor of Procedural, Criminal and Civil Proceedings. Universidad de Málaga
• Pages: 89-115

89

The applicability of universal jurisdiction -

Have we forgotten to act as a society?

D. A S J

Associate Professor of Procedural, Criminal and Civil Proceedings.

Universidad de Málaga

1. INTRODUCTION

This paper 1 addresses the principle of universal jurisdiction from the

perspective of access to justice. This is done in a critical manner, highlighting the

victim as the subject who has the right of access to justice. To this end, the content

is framed within the general right of access, and then linked to the basis of the

principle of universal jurisdiction. This makes it possible to observe how the fight

against impunity is the main basis of the principle of universal jurisdiction and is

closely related to the right of access to justice. Therefore, in this paper, a review

of its particular foundation is carried out, which leads to a focus on the effective

access to universal jurisdiction in Spain.

Since its latest reforms, the configuration of universal jurisdiction in Spain

has become increasingly restrictive and therefore affects the right to effective

judicial protection of the victims of certain criminal acts, so much so that it is

practically inapplicable. This is the main reason why access to jurisdiction through

this principle has been achieved by establishing limitations on access. Limitations

which are mainly based on the figure of the victim, but also from the procedural

point of view, as applicable assumptions are established which condition the

prosecution of the criminal act.

With the content provided, various questions are raised, on the one hand,

in relation to access to justice in today’s society, as this part considers that it is

framed in the efficiency of the procedural system and not in the original

meanings. Likewise, the difficulty of the regulatory precept of the principle of

universal jurisdiction is raised, for which this part systematises in a schematic way,

1 It is part of Project PID2020-113083GB-I00 (IPS Sonia Calaza and José Carlos Muinelo): Ejes de la

Justicia en tiempos de cambio.

Dra. Andrea Spada Jiménez

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as well as the pitfalls that a victim of certain criminal acts has to face in view of

the conceptualisation of victim granted by our law, as well as their nationality and

corroborated in the strict sense by our jurisdictional bodies.

2. THE PRINCIPLE OF UNIVERSAL JURISDICTION AND ITS TWO

MAIN PURPOSES: GUARANTEEING THE RIGHT TO EFFECTIVE

JUDICIAL PROTECTION AND THE FIGHT AGAINST IMPUNITY

2.1. The protection of an injured right outside the national territory

In my opinion, the principle of universal jurisdiction has two main purposes:

To guarantee the right to effective judicial protection of citizens and at the same

time to fight against impunity, the latter is the classic and original basis that has

been attributed to the creation of the principle of universal jurisdiction when

victims were not yet protagonists in the creation of international procedural

instruments; peace and social security were simply sought through the fight

against impunity without taking into account that the right to effective judicial

protection as a human right has to be recognised as another of the purposes and

at the same level as the aforementioned.

Therefore, in this article, in order to analyse the applicability of the principle

of universal jurisdiction, we will address, on the one hand, the recognition of

access to jurisdiction as a subjective right that is included within the right to

effective judicial protection, and on the other hand, the classic basis of the fight

against impunity and its relationship with access to justice and the search for

international peace and security.

The right of access to jurisdiction falls within the right to effective judicial

protection, as Reifarth 2 states that it is the “core substance” (the author refers to:

SSTC 37/1995, of 7 February (FJ 5º.);201/2012, of 12 November (FJ 3º);90/2013,

OF 22 April (fjº3);140/2016,of 21 July (FJ 12º);149/2016, of 19 September (FJ

3º)) of effective judicial protection, through which the possibility of being able

to turn to a judicial body and obtain a pronouncement on the right or interest

injured is recognised.

According to Añón 3, the right of access to justice is not only instrumental

in nature, but is also a fundamental part of the rule of law, closely linked

to the principles of independence, impartiality, integrity and credibility

through which the judiciary is legitimised . It is conceived as a human, social

2 Reifarth Muñoz, Walter. La tutela colectiva de los derechos fundamentales. Aranzadi, 2023, p.189.

3 Añón, Maria José. «El derecho de acceso como garantía de justicia», in García-Pascual, Cristina

Acceso a la justicia y garantía de los derechos en tiempos de crisis: de los procedimientos tradicionales a los mecanismos

alternativos. Tirant lo Blanch, 2018,p.20.