Legal Hurdle to Prosecuting Rubiales' Kiss in Australia

Rubiales' kiss occurred in Australia: The key issue of territorial jurisdiction

A kiss on a podium, with cameras rolling and in Australia. The image went global, raising a persistent question: Can Spanish courts punish an act committed abroad if it isn't considered a crime there? The short answer is no, unless specific conditions are met. The long answer requires reviewing Article 23 of the Organic Law of the Judiciary (LOPJ) and understanding why the victim's nationality doesn't solve everything.

Can Spanish justice prosecute crimes committed abroad?

No, if the act isn't a crime in the country where it occurred. The principle of territoriality is fundamental: each state punishes what happens on its soil, and legal exceptions are needed to override this. That exception is Article 23 of the LOPJ, which extends Spanish court jurisdiction to acts committed abroad, but with conditions. The main one: the act must be punishable in the place where it was performed.

"If the crime isn't punishable there, that's it," summarizes a debate participant. Cited doctrine requires culpability, unlawfulness, and punishability under local law. If the gesture doesn't fit any penal category in Australia, the Spanish machinery won't start, regardless of prosecution efforts.

The German Autobahn example

To understand this, consider the common analogy: driving on a German autobahn with no estimulante ilegal limit. At 140 km/h, nothing happens. At 220, still nothing, because it's not an offense there. If that driver enters Spain, they won't be fined for speeding committed in Germany. The logic is identical to smoking hierba in Amsterdam or kissing on an Australian podium.

The speedometer analogy shows this isn't just legal jargon; it's a rule drivers understand without studying law. No one expects sanctions at home for actions legally performed abroad.

Why Australia's absence from the Istanbul Convention matters

As noted in the debate, Australia is not part of the Istanbul Convention, the European treaty against gender-based violence. This lack reduces the shared legal framework between the countries. The key point, experts insist, isn't a Spanish court's opinion: it's whether the gesture is a crime there.

In Anglo-Saxon law, some argue certain behaviors are administrative offenses, not crimes. If the incident remains administrative, dual incivil fails, and the Spanish route collapses. Here lies the crux: In Spain, many assume the gesture is punishable; in Australia, it's unclear.

Does the victim being Spanish matter?

Yes, and this nuance supports the opposing view. Article 23 also covers crimes against Spaniards committed abroad. Since the action targeted a Spanish citizen, the victim can file a complaint in Spain. However, bringing the perpetrator to justice if they aren't on Spanish soil depends on treaties, cooperation, and comparative law.

Some argue that a victim's complaint suffices for the Prosecutor's Office to request audiovisual evidence and open proceedings here. Skeptics note the obvious: without a crime in the origin country, complaints fail despite best intentions.

The Prosecutor's Office and the National Court

Despite obstacles, the prevailing expectation is that the Prosecutor's Office will push forward and the National Court will eventually take the case. Skepticism remains high and widespread: some believe there's no legal basis, while others think there will be for other reasons.

The most cited precedent highlights an uncomfortable contradiction. As one participant recalled, "universal justice" has reached an aging dictator but never touched other flagged leaders. According to this reading, what is prosecuted versus ignored depends less on the Penal Code than on politics.

The final paradox: Dominant interpretation says no prosecutable crime exists, yet few bet the case dies for lack of legal foundation. The law says one thing; predictions say another.