Happened in Australia, tried in Spain?

Question

A few days after he allegedly kissed a female player on the mouth without consent, it has been announced that "(Luis) Rubiales (...) faces an investigation that could end in sexual aggression charges from Spanish prosecutors".

The kiss happened in Australia, but it is going to be prosecuted in Spain, which leaves me wondering what rules apply when deciding where a crime should be prosecuted.

The question is both general ("how is it decided in which country a crime will be tried") but I'm also interested in how the general rules apply to this particular example.

Some facts about this case:

• The alleged crime or misdemeanour happened in Australia, after the final of the FIFA Women's World Cup.
• Both the offender and the victim were Spanish, and they were in Australia acting as part of a Spanish organisation (the Spanish Football Federation).
• As far as I know, nobody has filed any complaint in Australia and no prosecution has been started in Australia.
• Some people (but still not the victim) have filed complaints in Spain.
• It seems actually easier to do the trial in Spain because offender, victim and relevant witnesses are likely to be in Spain, and material evidence (the video recording) is available everywhere.

Then my questions are:

• What are the rules to decide in which country a criminal case is tried, and how do these rules apply for this example to be tried in Spain?
• Could the defendant challenge the competence of the Spanish courts by alleging that the case could only be tried in Australia?

Answer 1

The question isn't "In which court is this going to be tried?". The question is (for each potential court): "Does this court have jurisdiction over the matter, and does the court deem the case relevant enough to take?"

So to determine whether this case could be tried at a Spanish court, what matters is Spanish law. Different countries vary a lot in how much their laws apply to stuff happening elsewhere. I don't know whether Spanish law explicitly states whether or not it forbids sexual aggression by and/or against its citizens elsewhere, but overall Spain seems to be leaning somewhat towards universal jurisdiction. If its not clear whether Spanish law applies, claiming that it doesn't is certainly a motion to expect from the defenders. The judge would then decide whether or not they claim jusrisdiction here.

At the same time, Australian law quite certainly applies as well. Thus, an Australian prosecutor could decide to bring a case as well. I would expect that they either wouldn't, or that the court would throw the case out arguing that it is a minor matter which is not of great importance to the Australian population, and they couldn't get custody to the perpetrator anyway.

Answer 2

The universal rule is that each sovereign nation decides for itself what they consider a crime and what they require to prosecute and convict someone for said crime. As well as what individual crimes that they should prosecute as opposed to could prosecute.

They may make treaties with other nations as to what, who and when, but that just pushes the decision back a layer, it is ultimately their choice.

The same can be said for civil liability insofar as the jurisdiction may see any difference between the two.

As a practical matter nations, having enough items to spend resources on, don’t bother claiming jurisdiction on matters unrelated to them — Spain is not going to spend money trying to prosecute the Chinese equivalent to jaywalking, they rarely bother when it is in Spain.

That said, the more serious a crime is the more likely a nation is to claim jurisdiction over crimes outside its borders. While you may face paying a blood price for a murder in Somalia, that is unlikely to be acceptable to other nations. And of course the reverse is true, Somalia may not accept your not guilty verdict as sufficient exculpation of your blood debt.

So, to answer your questions, (1) Spain has laws which sets forth the circumstances under which extraterritorial jurisdiction can be claimed, (2) they cannot argue that Spain cannot try someone for any crime that was committed outside of Spain (Spains Supreme Court has already ruled otherwise). They could argue that a particular crime falls outside of the requirements set forth under Spanish law, or that it has already been adequately addressed elsewhere.