© Borja Sánchez Trillo / EFE
Ukraine
The Attorney General of the State (FGE), Dolores Delgado, he signed a decree on Tuesday initiating it investigative proceedings in relation to the invasion of Ukraine by the Russian armed forces, and entrusts them to the Chief Prosecutor of the National Court, Jesús Alonsowho is empowered to “specify the criminal entity of the facts and carry out as many procedures as necessary.”
The FGE indicates that these proceedings are intended to establish a legal framework that supports the actions that can be carried out from now on, either on their own initiative or as an active part of international cooperation. He points out that these investigations are the ideal instrument “to ensure and channel assistance to the Ukrainian authorities and to other countries affected by the war and in a similar situation, allowing the collection of evidence that can be used in investigations of all kinds”.
In this sense, Delgado’s decree indicates that the proceedings fundamentally seek to verify the determining aspects of the jurisdiction, preserve the elements of the crimeto be able to point out the people responsible and to the victims, guarantee the integrity of the evidence, constitute an adequate channel to channel international cooperation and mutual assistance that may be requested, as well as transmit and receive information. In short, to ensure and develop the pertinent investigations to make them available before the competent jurisdiction when necessary and pertinent.
Violations of international law
In the exposition of facts, the decree explains that the invasion that Ukraine suffers is not only “an unjustified act of war” Rather, it violates the sovereignty of Ukraine and causes other serious violations of International Humanitarian Law according to the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949 and Additional Protocol I of 1977, which extends protection to the civilian population. , as well as the medical, military and civilian person in international armed conflicts.
Therefore, it indicates that the actions of the Russian Federation and its leaders “are in no way protected by lawful causes or circumstances”, and recalls that the Charter of the United Nations prohibits the use of force and obliges countries to resolve disputes by peaceful means. “There is no legitimate defense in illicit action by the Russian Federation, nor is there authorization from the United Nations Security Council,” he recalls.
After this, Delgado goes on to justify his decision to initiate proceedings by indicating that although the reform of the Organic Law of the Judiciary (LOPJ) of 2014 introduced limits so that Spanish judges can judge under the principle of universal justice particularly serious crimes committed outside our borders –something that meant “a restriction on the powers of the Spanish courts to fight once morest impunity for crimes under international law”–, the Spanish Constitution states in article 96.1 that international treaties once published in Spain “they form part of the internal legal system”.
It also recalls that Law 25/2014 regarding International Treaties establishes that these “prevail over any other internal regulation in case of conflict between them, except for constitutional regulations”.
In line, the FGE analyzes 23.4 of the LOPJ, remembering that it does grant jurisdiction of the Spanish courts to know acts committed by Spaniards or foreigners outside the national territory likely to be typified, according to Spanish law, as one of the crimes that it expressly determines. It explains that section ‘A’ provides jurisdiction for crimes of genocide, crimes once morest humanity or once morest persons and property protected in the event of an armed conflict, provided that the proceeding is once morest a Spaniard, once morest a foreigner residing in Spain, or once morest a foreigner who was in the country and whose extradition had been denied by the authorities.
It is also fixed in section ‘P’ of that specific article because it establishes a clause that allows knowing “any other crime whose prosecution is imposed mandatory by a treaty in force for Spain”. He indicates that although in ‘A’ there is no express reference to the national character of the possible victims of the criminal act, in the rest of the sections it is, what he understands as an “absence or gap that must be integrated in accordance with the spirit of the law and, above all, of the Constitution and the International Treaties signed by Spain”.
Possible Spanish victims
After this, he stresses that in the case of the Russian invasion “nobody can doubt the existence of victims of Spanish nationality” Therefore, their identification and the determination of the facts that affect them must be carried out through the investigative measures of the Public Prosecutor’s Office.
Thus, it indicates that in accordance with the Geneva Convention and with the LOPJ, the Prosecutor’s Office “is competent to know the events taking place in Ukraine as a result of the aggression that this country is suffering from the Russian Federation”, because “Spanish citizens reside in the attacked country and are being victims of illegal actions” by Russia.
