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A few days after he allegedly kissed in the mouth a female player 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 should a crime be prosecuted.

The question is both general ("how is 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 female FIFA 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 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?
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    Many countries reserve the right to prosecute their own citizens if the host country does not. This is especialy true for countries, that in the past, did not extradite their own citizens.
    – Mark Johnson
    Commented Aug 29, 2023 at 14:53
  • @MarkJohnson ...for instance, France does not extradite its citizens, and it claims a rather extensive jurisdiction against acts committed abroad. (For instance, if a British kills the French ambassador in the UK, is tried in the UK and spends X years in prison in the UK, they can still be tried again in France - the "no double prosecution" guarantee of 113-9 does not apply to 113-10.)
    – KFK
    Commented Aug 30, 2023 at 13:04
  • Is this a prosecution, or is it his employer saying "you are not the right person for this job" and perhaps using a court to remove him?
    – gnasher729
    Commented Nov 14, 2023 at 18:05

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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.

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    And this being in the workplace (or certainly argued as such) may mean that jurisdiction is in various contracts.
    – Jon Custer
    Commented Aug 29, 2023 at 14:49
  • "Universal jurisdiction" means that a country claims the right to prosecute a given crime regardless of where it happened and who was involved. (The typical use case is piracy: you caught a guy of unknown nationality in international waters, and you want to hang him, and nobody cares because he’s in your custody so it’s your problem.) I do not think that is the right term to use here, where Spain claims jurisdiction over an act where both the perpetrator and victim are Spanish citizens (and not over all sexual assaults anywhere).
    – KFK
    Commented Aug 30, 2023 at 12:55

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