By Tenzin Sangmo
Tibet lawsuit team filing the case for the first time in June 2015.(Foto- Ángel López-Soto para CAT)
DHARAMSHALA, August 28: The team that fought the Tibet Lawsuit in the Spanish Constitutional Court prepares to approach the European Court of Human Rights in the next few months after a ruling in late February this year buried the case in Spain.
The author and investigative lawyer of the case, José Elías Esteve Moltó and the international coordinator of the case, Alan Cantos, also the director of Comité de Apoyo al Tíbet (CAT) Madrid, in an article entitled 'The Tibet case in Spain's Constitutional Court' references to the role of Chinese pressures leading towards further impunity.
The Tibet lawsuit was admitted in January 2006 under the principle of "universal competence" adopted by the Spanish judiciary in 2005 under which Spanish courts can hear cases of genocide and crimes against humanity wherever they occur and whatever the nationality of the defendant.
Cantos, in an interview with VOA Tibetan Service, had said another reason the team is seeking prosecutions in Spain is that Chinese officials cannot be tried at the International Criminal Court. China has refused to ratify the Rome Statute that established the Netherlands-based court in 2002.
“Since the Pinochet case, the Spanish courts have had a leading role in prosecuting international crimes,” the duo wrote.
The absolute scope of universal jurisdiction culminated with the international arrest warrants issued against various authorities of the Chinese Communist Party in 2013 for the alleged commission of genocide, torture, crimes against humanity, State Terrorism and other international crimes against the Tibetan people.
The duo said the Spanish Government under pressure from the Chinese Government proceeded to a new revision of the Organic Law of Judiciary Power, proposing radical amendments and further restrictions to universal jurisdiction.
In a Supreme Court Sentence 296/2015 dated 6 May 2015, that interpreted universal jurisdiction in a restrictive manner provoked a domino effect in Spain in the definitive shelving of almost all sensitive international cases.
“A third Constitutional Court ruling, rejects with identical arguments, the appeals of the Tibet case, as it did weeks before with the appeals of the Falun Gong case and that of the Socialist Parliamentary Group against the reform of the Law of Universal Justice, under pressure from the Chinese Government.”
The ruling, the duo wrote, was formally communicated to chief plaintiff CAT and the Fundación Casa del Tíbet as co-plaintiff, on 25 February 2019 and rejects the appeal after four years of waiting.
“In short, genocide, crimes against humanity and war crimes that had been under investigation for years cannot be tried in Spain, as the Chinese Communist Party leaders accused did not have Spanish nationality nor resided habitually in Spain.”
The lawyer and the coordinator of the lawsuit, Moltó and Cantos wrote that despite political interference and huge obstacles, there remains one last possibility outside Spain, that is going to the European Court of Human Rights in the next few months.
“CAT will attempt until the bitter end.”
“Similarly, the new Spanish Government to be formed in the next months with Pedro Sánchez as President has a better chance to restore and extend our crippled law of Universal Jurisdiction,” the duo hoped. Brief Timeline of the Tibet lawsuit:
January 10th, 2006: The lawsuit was accepted by Central Court of the National Court of Spain.
June 5, 2006: The investigation of the claims of genocide in Tibet began almost after six months since the lawsuit was accepted.
July 9, 2008: Plaintiffs filed an augmentation of their initial lawsuit against Chinese authorities for more recent crimes committed during March unrest in 2008.
August 5, 2008: Spain’s National Court held its first hearing of the lawsuit.
August 2009: Chinese Embassy in Spain negatively responded to the lawsuit and said Spain has violated “the basic principles of state jurisdiction and immunity” established by international law and is not covered by the Treaty on Judicial Assistance in Criminal Matters between China and Spain.
February 2010: Judge Santiago Pedráz of the Central Court No.1 said the investigation would have to be dropped against the Chinese leaders due to the change in the law regarding universal jurisdiction in 2009.
March 15, 2011: Spanish High Court issued a court ruling allowing the plaintiffs to appeal the decision to shelve the lawsuit against three Chinese ministers and five senior communist party officials.
November 2013: The Spanish National Court ordered arrest warrants to be issued against five Chinese leaders, including former President and Party Secretary Jiang Zemin, for their policies in Tibet.
The ‘groundbreaking’ development as the International Campaign for Tibet hailed it, followed the indictment of former Chinese President Hu Jintao for genocide in October 2013.
March 2015: Co-plaintiff and a Spanish citizen, Thubten Wangchen, filed an appeal to reopen the case.
April 22, 2015: The Supreme Court of Spain rejects plea to reopen genocide cases against five former Chinese leaders including retired Presidents Jiang Zemin and Hu Jintao against Chinese leaders, upholds the dismissal of charges.
May 6, 2015: Supreme Court in sentence 296/2015 of 6 May 2015 interpreted universal jurisdiction in a restrictive manner.
February 25, 2019: Appeal to reopen the lawsuit rejected in a formal ruling sent to plaintiffs.