Norma relacionada
Spain
Practice Relating to Rule 100. Fair Trial Guarantees
Section F. Trial without undue delay
Spain’s LOAC Manual (1996) provides that judicial criminal proceedings in occupied territory shall not last longer than the usual delay.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.7.b.(3).
Spain’s LOAC Manual (2007) states that time limits are to apply to criminal proceedings in occupied territories.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.7.b.(3).
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995).
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
…
… Article 17 of the [1998] … ICC Statute … lays down certain criteria on the admissibility and inadmissibility of hearing situations referred to it when certain conditions are met.
…
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: … [t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with the intention to bring the concerned person to justice.
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 4–5.
In determining whether there has been a judicial process with the necessary guarantees in Israel, the court noted:
[Through] an overview of the proceedings that have been and are being conducted in Israel for the criminal and civil investigation of the acts that took place … it can be deduced that there has been a genuine and real procedure, first administrative and then judicial, to ascertain the possible commission of an offence. …
… In addition, there does not seem to be malicious or unjustified procedural delays that could interfere with the legitimate expectations of the parties to a fair and founded decision on the issues submitted to a judicial decision.
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Quinto, p. 10.
In 2010, Spain’s Supreme Court dismissed an appeal against the judgment of the National High Court and held:
B) The right to a … process with all the [judicial] guarantees – the infringement of which is denounced [in this appeal] – has a series of concrete manifestations: the right … to be tried … without undue delay …
C) … The appeal proceedings [of the National High Court], which also allowed and led to the present appeal, in no way detract from the procedural guarantees or result in the lack of a proper defence.
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section II, Primero, (B)–(C), p. 2.
