Deputy Prime Minister Mariano Rajoy said the government turned down the request because Argentina's Congress this month voted to repeal two laws that had shielded hundreds of military officers from prosecution for abuses during the 1976-83 dictatorship.
Under the extradition treaty between Spain and Argentina, the 40 suspects should now be tried in Argentina, he said.
"When certain crimes are committed in a country and it is possible to try them, it must be done in that country. That's the principle of territoriality," Rajoy said after a regularly scheduled cabinet meeting.
He also said that Argentina's new president, Nestor Kirchner, has said several times that he would like to see the suspects tried in their native country. BEGIN POSITION 3 END POSITION 3
Although Argentina's Congress repealed the immunity laws dating from the mid-1980s, the final word on eliminating them rests with its Supreme Court.
Spanish Judge Baltasar Garzon had requested the extradition of 39 former military officers and one civilian earlier this month under a Spanish law that says crimes against humanity can be tried in Spain even if they were not committed here.
Using the same law, Garzon had Chilean dictator August Pinochet arrested in London but failed in 1999 to take him to court. Britain ultimately freed the aging ex-despot on grounds he was unfit to stand trial.
Garzon's charges against the 40 Argentines are genocide, terrorism and torture. He argues that the Argentine military junta's efforts to wipe out dissent amount to attempted genocide, or the systematic elimination of an entire group of people.
In filing his requests, Garzon noted the repeal of the laws in Argentina and the possibility that the suspects might be tried there. But he said that for the time being, it would be "imprudent" not to proceed with his case for extradition.
The Spanish government had faced an imminent deadline to act on Garzon's request.
Acting on a warrant from Garzon, Argentina started arresting the 40 in early July. Under the treaty between the two countries, Spain had 40 days from the arrests to extradite the suspects - a span that would have run out Tuesday. After that, the suspects could be released.
Top names on the suspect list include two former leaders of the military junta, Jorge Videla and Emilio Massera.
Official estimates say about 9,000 Argentines died or vanished during the junta years, but human rights groups say the figure could be as high as 30,000.
The laws that protected military personnel from trial were enacted after democracy was restored in Argentina in 1983 and in the wake of a series of military uprisings. The government sought to appease anger within in the military over public trials of high-ranking officials.
Copyright 2003 Associated Press. All rights reserved.
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