Da Madrid ci è giunto il comunicato stampa del C.A.T. (Comité de Apoyo al Tibet)

Nel suo comunicato stampa del  27  Novembre 2010, il C.A.T. esterna il suo disappunto e la sua delusione nei confronti della sentenza dell’Alta Corte Penale Spagnola  che ha rigettato l’istanza di condanna della Cina per il genocidio che sta perpetrando in Tibet. Come al solito le ragioni della diplomazia e della politica prevalgono sulle oggettive questioni legali di diritti violati e di giustizia negata.

Leggi il comunicato in inglese:

The virtual closure of the second Tibet case in the Spanish Court reveals the profound contradictions and doubts in the attempts to close the Tibet case and the legitimacy of the recent change of the law to limit Universal Jurisdiction in Spain.

BACKGROUND
The Criminal Court has finally made public its resolution rejecting our appeal against closing the Tibet case. The lawsuit that set these proceedings in motion was accepted by the judge Santiago Pedráz on 5th August 2008 and shelved last February 2010 by this same judge alleging the change to the law limiting universal jurisdiction. In his ruling the judge ignored most of the legal, judicial and ethical arguments put forward, at his request, by CAT’s lawyers.  The first legal case for genocide and other crimes admitted and under investigation in January 2006 remains open and CAT is calling for new proceedings, witnesses and international experts.

THE CRIMINAL COURT’S RULING REJECTING OUR APPEAL:
In its ruling of 27th October 2010, the Court of Appeal of the Spanish National Court rejects our appeal and confirms the closure of the case without entering into the many legal matters raised in the detailed reasoning put forward by the CAT in its appeal on behalf of Tibetan victims with co-plaintiff (Fundación Casa del Tíbet) and the private accusation (Thubten Wangchen).  It must be stressed that the court ruling ratifying the closure of this case and rejecting the appeal reinforces impunity; a fact that even the judges admit quite openly in their fifth grounds of law where they recognize “the impossibility of obtaining justice from the Chinese authorities” and the “numerous official and diplomatic international steps that have been taken” by the United Nations with no success whatsoever. What is alarming is that, after recognizing this impunity, 15 judges of the Audiencia Nacional decided to put an end to the one and only means of justice open to the Tibetan victims, thereby ignoring international criminal law. Fortunately, as we shall see below, three dissenting judges disagree forcefully and in writing with the majority view and believe the case should be left open.  The real root of the problem is that the majority of the judges base their argument on a legal reform motivated by political interests rather than legal reasons, thereby consummating the perverse game of the “diplomacy” that little more than a year ago had the Chinese authorities demanding that the Spanish Government “close definitively” the Tibet case. Which is precisely what has happened: the Chinese orders dictated to the Executive were whisked through the Legislative and their effects have now been consummated by the Judiciary and do not grant the victims the right to appeal the fateful decision. As the dissenting judges state in their personal vote: the legislator “is free to legislate” but “not by any means whatsoever”. “emptying fundamental rights and the law of content” (see point 2 below). Likewise, the Judiciary is independent when taking its decisions, but as the dissenting judges again point out, new legal reasons cannot be introduced into the decision and, furthermore, then be applied retroactively, as this would cause “defencelessness” for the victims (see point 4).

PERSONAL VOTE OF THE DISSENTING JUDGES:
The Personal Vote (5th November 2010) of the three judges who disagree with this ruling occupies 20 pages and 9 points with their serious doubts, which we summarise below:

1. The meaning and interpretation given to universal jurisdiction itself and the very clear position of the Constitutional Court against limiting its application with new or external conditions that create further impunity.

2. The dissenting judges raise serious questions regarding the constitutionality of the reform of Article 23.4 of the Law of Official Procedure (LOPJ in its Spanish initials) introduced by Article 1, section 1, of Basic Law 1/2009 of 3rd November. The legislator may legislate but not at any cost, which in this case creates greater impunity, rather than less. They also argue the impossibility of applying retroactively the legal reform to Article 23.4 of the LOP, as it limits fundamental rights.

3. Classifying as war crimes the acts mentioned in the extension to the lawsuit lodged by the CAT makes universal jurisdiction obligatory for this type of crime and does not permit the application of the new connecting links of Article 23.4 of the LOPJ to these situations. The examining judge Pedraz admitted the extension to the lawsuit in its entirety without any mention of their being considered war crimes and cannot now ignore them when these crimes against the Geneva Conventions are NOT affected by the reform to the law to which he alludes in order to close the case.

4. The dissenting judges conclude that the Court of Appeal has overstepped its revisory powers by putting forward in its ruling new arguments not mentioned initially by the examining Court, and also by producing defencelessless for the CAT’s plaintiffs.

5. These judges also consider it inadmissible to close the case as agreed without specifying whether said closure is provisional or definitive, and maintain that it should be possible to lodge an appeal for annulment against this ruling for closure before the Supreme Court (Tribunal Supremo). The CAT has submitted the necessary preliminary request to lodge an appeal for annulment, which has now also been rejected by Section 2 of the Spanish National Court (Audiencia Nacional). Immediately we have lodged a formal complaint against the abovementioned ruling, as it denies us the chance to lodge an appeal for annulment.

CONCLUSIONS:
The CAT laments the legal and judicial discrepancies, omissions and doubts that have arisen regarding the Tibet cases and those others against the most powerful States that go unpunished, whilst it welcomes the detailed and rigorous arguments of the personal vote of the three dissenting judges, which support those of the CAT in favour of continuing with the case for justice for Tibet, already and historically under way.  Dr. José Elías Esteve, who researched and drew up both lawsuits, has declared: “This judicial decision is the ending of a tale of predicted impunity. When the Chinese government demanded putting an end to justice for the Tibetan victims and our politicians in Congress and the Senate diligently carried out that petition, the door was opened to the injustice of genocide. Once again the interests of dictators and multinationals, with the consent of politicians, have won the game against democracy and international law. The rest are but legislative and judicial manipulations in an attempt to gloss over this indisputable fact, as the Tibetan prisoners who have spent a lifetime being tortured in prison are only too aware.” The message transmitted by this interference of economic powers in the judiciary, together with the passivity and general apathy, is enough for many people, particularly the new generation of Tibetans who are fed up with so much indifference, to wonder about other more expedient methods to get heard and to draw the attention of the international community and the press, always avid for headlines. If a people are denied all the peaceful solutions available within international law, what resources are left to them? Resort to violence or dying in silence while watching their oppressors strut about the planet whilst all other (in)dignitaries kowtow (bow) to the new Chinese superpower?”
Alán Cantos, director of the CAT – Comité de Apoyo al Tíbet – adds: “We must globalise justice, not impunity. The CAT will continue fighting peacefully within the framework of international law for the Tibetan victims not to be left abandoned again by the economic interests of governments and companies. Such interests are creating blatant contradictions in the fundamental principles of our democracies and idleness to fight the impunity of the powerful states”.
In addition to any of the rulings of the examining Court, you may request, after identifying yourself and your professional affiliation, a copy of the following:

1) The text of the ruling by the plenary Court against our appeal.

2) The complete text of the Personal Vote of the dissenting judges against the ruling by the plenary Criminal Court (and its translation into English).

3) The text of the appeal presented in its day by the CAT against the closure of the case, with its legal, judicial and ethical arguments.

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