THIRD SECTION
DECISION
Application no. 39691/18
Margarita TOLEDO POLO
against Spain
The European Court of Human Rights (Third Section), sitting on 22 March 2022 as a Chamber composed of:
Georges Ravarani, President,
Georgios A. Serghides,
María Elósegui,
Darian Pavli,
Anja Seibert-Fohr,
Peeter Roosma,
Andreas Zünd, judges,
and Milan Blaško, Section Registrar,
Having regard to the above application lodged on 13 August 2018,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Margarita Toledo Polo, is a Spanish national who was born in 1960 and lives in Madrid. She was represented by Mr M. Casado Sierra, a lawyer practising in Madrid.
2. The Government were represented by their Agent, Mr. Rafael-Andrés León Cavero, State Attorney and Head of the Human Rights Department at the Ministry of Justice.
The circumstances of the case3. The facts of the case, as submitted by the parties, may be summarised as follows.
Background to the case: Spanish military presence in Lebanon4. The deployment of United Nations (UN) forces to the Lebanon border dates back to 1978. A conflict known as the 2006 Lebanon War started on 12 July 2006 and continued until 14 August of that year, when UN Security Council Resolution 1701 establishing a ceasefire came into effect. The Resolution was accepted by Israel and Hezbollah, the parties to the conflict.
5. The conflict is believed to have killed between 1,191 and 1,300 Lebanese people, and 165 Israelis. Likewise, it severely damaged Lebanese civil infrastructure and displaced approximately one million Lebanese and between 300,000 and 500,000 Israelis.
6. The duties of the mission deployed by the UN in Lebanon include monitoring the cessation of hostilities between Hezbollah and Israel, accompanying and supporting the Lebanese armed forces as they deploy throughout the South, including along the so-called “Blue Line” demarcation, as well as ensuring humanitarian access to the civilian population and the voluntary and safe return of displaced persons.
7. The Spanish armed forces were deployed in Lebanon in September 2006. The bulk of the Spanish contingent under the so-called Libre Hidalgo mission was based at the Miguel de Cervantes UNIFIL base, close to the town of Marjayoun, in the Sector East headquarters led by Spain. Some Spanish troops were also based at the headquarters of the mission in Naqoura.
8. At present, the mission comprises 10,327 military personnel of forty‑six different nationalities (as of 21 April 2021). They are deployed in Sector East and Sector West, under Spanish and Italian control respectively.
9. The Spanish contingent came to have a maximum of 1,100 servicemen, but since 2012 the number has remained between 600 and 700 soldiers.
10. The Spanish troops are involved in foot and vehicle patrols in order to permanently monitor the line separating Lebanon from Israel. They have also set up viewpoints and carry out other activities in cooperation with the Lebanese Armed Forces (LAF). All these operations are aimed at ensuring compliance with UN Resolution 1701, by trying to prevent situations of rising tensions between the parties.
11. Since the mission started, fifteen Spanish soldiers have lost their lives.
Death of Lance Corporal Soria Toledo12. On 28 January 2015, at 11.25 a.m. local time, Hezbollah attacked an IDF convoy travelling along a road 8 kilometres from UNIFIL position 4-28 (Sector East). The convoy was hit by up to six missiles, resulting in two Israeli soldiers being killed, and seven Israeli soldiers and four civilians being wounded. At the same time, multiple missiles were also launched by Hezbollah over Israeli territory from a location close to the position assigned to the Spanish military.
13. At 11.33 a.m. a Spanish squadron patrol of the UNIFIL mission deployed at observation point no. 13 (OP-13) between Lebanon and Israel reported seeing a missile heading towards Israeli territory, following the position of the Israeli armed forces. It was followed by five more shots in the same direction, coming from the village of Al Wazzani (Lebanon).
14. After the attack, the Israeli armed forces launched a procedure in order to isolate the area, blinding Hezbollah, to prevent further action and facilitate evacuation of the casualties.
15. At 11.37 a.m. the head of the Spanish battalion of UNIFIL ordered the execution of “Operation Blue Porcupine”, which involved the return of mobile patrols to the nearest fixed positions. At position 4-28 in Ghajar (Lebanon), the order was given for all men and women to move to bomb shelters, leaving the entrance open to welcome patrols returning to the positions. Lance Corporal Soria Toledo, who until then had been in the inner watchtower of the position, occupied the observation tower located at the main entrance to control, protect and facilitate the return of patrols that were outside the position at the time they were ordered to take the nearest position. The tower was 10 metres and three storeys high, with 20-centimetre-thick reinforced concrete walls and bulletproof glass.
16. Two minutes later, at 11.39 a.m., the Israeli armed forces reported to the UNIFIL command to keep their localised positions as they intended to retaliate. One minute later, at 11.40 a.m., the Spanish contingent received UNIFIL’s communication. At 11.47 a.m. the first launching of artillery shells from Israel was confirmed.
17. The Israeli artillery response began at 11.56 a.m. Some of this firing was intended to attack a key position that they believed may have been used by Hezbollah in the vicinity of UNIFIL position 4-28.
18. At 12.24 p.m. local time Lance Corporal Soria Toledo was positioned in observation tower UNP 4-28 when 155 mm artillery rounds launched from Israel from a distance of approximately 16 kilometres hit the tower. Simultaneously, nine other 155 mm artillery rounds were confirmed to have exploded in the vicinity of UNIFIL position 4-28. In the same area, the impact of multiple 120 mm mortar shells was also confirmed.
19. After the explosion at the tower, several military personnel went to the aid of the Lance Corporal, who was lying on the floor with injuries that seemed to be “incompatible with life”.
20. A call for help from the medical corps was made by the Sergeant in charge. A doctor, nurse and member of the cavalry arrived at position 4-28 to assist the Lance Corporal.
21. The provision of medical assistance, however, was interrupted by several projectiles landing near the position. This obliged the medical corps to move to shelter, after certifying the death of Lance Corporal Soria Toledo at 1.20 p.m. They waited approximately one hour before recovering the body, then proceeded with its evacuation. The exchange of fire ended at 1.45 p.m.
22. A total of 118 rounds launched by the IDF were recorded as having hit. Approximately sixty rounds were recorded as having been launched by Hezbollah.
Investigations(a) Beginning of the investigation
23. At 3.28 p.m. on the day of the incident Madrid military judge no. 11 received a telephone call from Lieutenant Colonel G. of the Legal Assistance division of the Defence Staff Headquarters. The Lieutenant Colonel informed him of the death of Lance Corporal Soria Toledo in the so-called Libre Hidalgo mission. He indicated that the death had been a consequence of an exchange of fire between Hezbollah and Israel, and that the body was expected to arrive at the Cerro Muriano base (Córdoba) the day after. On the same day the judge instituted criminal pre-trial proceedings (no. 11/05/15).
24. An official report by R.O., Chief of BRILIB XXII (Brigada Líbano), was initiated on 28 January 2015. Pursuant to section 115 of the Organic Law on Military Jurisdiction (see paragraph 130 below), Chief R.O. appointed Commander B.A. as his Legal Assistant, who initiated the necessary inquiries with a view to elucidating the events leading to the death of Lance Corporal Soria Toledo. Commander B.A. was assisted by Captain C.S. of the Guardia Civil.
(b) Recovery of the body and post-mortem examination
25. The body of the Lance Corporal was recovered from position 4-28 by the medical corps of the Spanish military at approximately 3.30 p.m. It was then transported to UNIFIL position 7-2 by ambulance.
26. It was examined by Lieutenant Doctor R.R., together with a nurse and medical assistant.
27. On 29 January 2015, at 5.20 p.m., the Institute of Forensic Medicine in Córdoba carried out an official post-mortem examination, the conclusions of which were communicated to the military courts on 2 March 2015. The results stated that the events leading to the death of Lance Corporal Soria had been of a violent nature. In addition, the report identified the cause of death as damage to the victim’s central nervous system and head, and facial trauma caused by explosive materials. It also determined that the victim had died on 28 January 2015 at 1.20 p.m.
(c) Statements taken by the Spanish military authorities
28. The following statements were submitted to the investigating and judicial authorities in the domestic proceedings.
(i) Lance Corporal L.S.
29. On 29 January 2015, at 10.05 a.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Lance Corporal L.S. When “Operation Blue Porcupine” was activated, Lance Corporal L.S. and his squadron drove an Iveco LMV vehicle towards the left of the tower suffering the impact. All four of them had orders to inform and alert people of the origin and impact of the projectiles.
30. They observed how the trajectory of the missiles was being modified on every launch, going first towards the village of Majidiye (Lebanon), but turning later towards UNIFIL position 4-28. After attempting via radio to notify the guard about the change in trajectory of the missiles, and due to the close proximity of the impacts, Lance Corporal L.S. left the car and personally informed Sergeant C.M. and Captain P.A. Once he informed the guard he walked back to the car and, one minute later, the projectile hit the tower. At that point, Lance Corporal L.S. and the rest of his squadron decided to enter one of the bunkers.
31. At 2 p.m. orders from Captain P.A. were received by the squadron previously positioned at the car to leave the bunker and open the main door, as well as provide security to the medical corps that had arrived to recover the body of Lance Corporal Soria. However, once the medical corps moved the body to the ground floor of the tower, they had to run back to the bunker, leaving the body behind as new projectiles were being launched. After approximately an hour inside the bunker, orders were received to go out and clear the position. It was then that the body could be moved to position 7-2.
(ii) Soldier S.G.
32. On 29 January 2015, at 10.50 a.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Soldier S.G. At 10.30 a.m. of the day of the incident, Soldier S.G. was on guard duty at the main entrance barrier to the position. At 11 a.m., approximately half an hour after the start of his shift, he heard the first explosions. He could not however identify the origin of fire or where the projectiles were hitting.
33. “Operation Blue Porcupine” was rapidly activated. All personnel at position 4-28 proceeded to pick up their helmets, flak jackets, rifles and handguns as ordered. Access into the position was banned.
34. Soldier S.G. occupied a position on the right side of the tower where the projectile hit.
35. He said that it was at 11.30 a.m. when cluster munition started to be launched towards the villages of Majidiye and Al Wazzani. Shortly after, the projectiles gradually moved towards position 4-28. In particular, the impact of projectiles in the Abasiva area alerted him to the proximity of the impacts to the position. It was then that he heard a very loud whistle followed by a bang and observed smoke coming out of the observation tower where Lance Corporal Soria Toledo was on duty. Soldier S.G. identified the projectiles as artillery or mortars.
36. Soldier S.G. abandoned the sentry box and informed the others that the tower had been hit. Captain P.A., the head of the position, ordered all military personnel to move to shelter. Once in the bunker, the Captain, who had previously tried to access the tower but could not open the entrance door as it was locked, asked for two volunteers to join him in a second effort. Soldier S.G., Sergeant C.M. and Captain P.A. reached the tower. Noticing the door was locked, Soldier S.G. went back to the bunker to look for a tool that could unlock it. There he found Soldier P.B., who was holding a pick and offered to go back to the tower himself. Soldier S.G. remained in the bunker.
37. At about 3 p.m., projectiles stopped being launched and the military personnel were ordered to note the damage in the position.
(iii) Soldier P.B.
38. On 29 January 2015, at 11.20 a.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Soldier P.B. On the day of the incident, at approximately 11 a.m., Soldier P.B. was relieved from duty by Lance Corporal Soria in the observation tower.
39. When leaving the tower he went to inform Sergeant C.M. of the changeover, when the latter received a call informing him that an explosion had been heard in Israel. The soldier in charge of the cameras, A.R., zoomed into the area where the explosion had occurred. It was then that Soldier P.B. noticed the impact of four or five projectiles launched from Lebanon into Israeli territory. At that point, Captain P.A. ordered the activation of “Operation Blue Porcupine”. Soldier P.B. picked up his helmet, flak jacket and rifle. He drove an VTLM Lince vehicle towards the right of the observation tower, where he and the rest of the platoon had orders to remain.
40. While in position, he observed cluster munition explosions in the Majidiye area.
41. Soldier P.B. also observed the impact of cluster munition and artillery in the villages of Slaiyeb and Rehana Berri.
42. He recalled hearing explosions becoming closer to the position, when a loud whistle followed and he hid in the vehicle. Once there was no sound of explosions outside, he got out of the vehicle, noticing that the observation tower had been hit by a projectile. All military personnel then received orders to go to the shelters.
43. Inside the bunker someone noticed that Lance Corporal Soria was absent. Soldier P.B. informed the others that he had last seen him during changeover. Soldier P.B. then heard that the Captain had asked for a tool to open the entrance door to the tower as it was locked. He said that someone had given him a pick and that he had run towards the tower to try to unlock the door. When he arrived at the tower, he noticed Captain P.A. opening fire with his rifle against the door lock, which was effective enough to unlock the door.
44. Soldier P.B. followed Sergeant C.M. into the tower. Sergeant C.M. repeatedly called out for the Lance Corporal by the name “Soria”, but he did not obtain any answer.
45. After removing all the rubble, Sergeant C.M. accessed the top floor of the tower and found Lance Corporal Soria. From the ground floor, Soldier P.B. could see the Sergeant move the body as he tried to check the vital signs. Soldier P.B. said he could still hear the sound of projectiles hitting the area.
46. Acknowledging that nothing could be done to save the Lance Corporal, Soldier P.B. and Sergeant C.M. left the tower, intending to return to the bunker. The Sergeant went to inform the personnel on guard duty of the incident and the need to call for the medical corps.
47. At 3 p.m. orders were received to abandon the bunker, note any damage and secure the position.
(iv) Soldier P.C.
48. On 29 January 2015, at 12.25 p.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Soldier P.C. On the day of the incident Soldier P.C. was part of the platoon to which Captain P.A. had given orders to drive a VTLM Lince vehicle towards the right of the observation tower.
49. Shortly after, he observed the impact of multiple projectiles, firstly in the Majidiye area and later in the villages of Slaiyeb and Rehana Berri. At that point, Lance Corporal B. advised the squadron to move the vehicle back closer towards the observation tower.
50. Soldier P.C. saw and heard that the projectiles were becoming closer to position 4-28. Sergeant G.G. ordered Lance Corporal L.S. to inform the Captain that the trajectory of the projectiles was being modified towards the position. Lance Corporal L.S. followed that order but once back in the vehicle he explained to the squadron that he had not been given any precise orders on how to proceed, as the high command was reporting the situation to position 7-2 (superiors). Faced with this lack of orders, Sergeant G.G. then decided to move the vehicle behind the tower, using the latter as a parapet.
51. Explosions could be heard more closely after every impact. Shortly after, he heard a whistle and intuitively hid in the vehicle. Following the explosion, he witnessed several other explosions in the vicinity of the position. When he opened his eyes, he saw rubble, a piece of the tower fence, dust and smoke.
52. Sergeant G.G. ordered everyone to move into the bunkers. Soldier P.C. picked up his individual armament and followed the orders. Once inside the bunker, orders were received to secure its access, a task which Soldier P.C. volunteered to do.
53. At the time of counting all the personnel within the bunker, some people noticed that Lance Corporal Soria was missing. After an hour inside the bunker, orders were given to open the main door to the position and secure the medical corps and escort the vehicles. Twenty minutes after the military had left the bunker to secure the medical transport, orders were received to get back to the shelters as explosions continued to occur nearby.
54. Everyone, including the medical personnel, remained in the bunker until 3 p.m., when orders were given to note any damage and secure the compound.
(v) Sergeant G.G.
55. On 29 January 2015, at 1.16 p.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Sergeant G.G. On the day of the incident Captain P.A. sent the platoon headed by the Sergeant to cut off access to the main entrance. The squadron got into a VTLM Lince vehicle and cut off access by placing the vehicle at the main entrance.
56. The squadron observed how the Israeli forces were modifying the trajectory of the projectiles, the impacts moving from the Majidiye area towards UNIFIL P 4-28. The Sergeant ordered Lance Corporal L.S. to inform the Captain personally. Once Lance Corporal L.S. was back and saw that the projectiles were becoming closer with each launch, the Sergeant decided to move the vehicle behind the tower, using the latter as a parapet.
57. At around 12.30 p.m., when the tower was hit by the projectile, the Sergeant and his platoon took shelter within the bunker.
58. At that point, notice was received that the medical corps were being escorted towards the position. Following orders from Captain P.A., the Sergeant and his squadron walked towards the main entrance to open the door and secure the medical corps.
59. The squadron opened the door, allowing the medical corps and cavalry into the position. The squadron escorted the medical transport until further explosions were heard and orders were given to move back to shelter.
60. All the personnel of position 4-28, including the medical corps and cavalry, remained in shelter. When there were no more explosions from projectiles, Captain P.A.’s orders to leave the bunker and note the damage were followed.
61. In a VTLM Lince vehicle the squadron headed by Sergeant G.G. escorted the medical corps and cavalry so that they could leave the position and safely transport the body.
(vi) Soldier T.B.
62. On 29 January 2015, at 2.38 p.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Soldier T.B., who was patrolling the entrance of the bunker. He heard explosions and artillery fire approaching the position. At that point, he was ordered to move back from his position to a more secure one within the bunker.
(vii) Soldier M.C.
63. On 29 January 2015, at 3.05 p.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Soldier M.C. Five minutes after entering the bunker, Soldier M.C. and his platoon had been ordered to go in a VTLM Lince vehicle to the main entrance to cut off access to the position. There they could see and hear how the trajectory of projectiles kept being modified, moving from behind the mosque in the Majidiye area, towards position 4-28. Soldier M.C. identified the projectiles as cluster munition.
64. The last two explosions were heard at a very close distance, one behind the wall of the position 4-28 visitors car park and the other next to the observation tower.
(viii) Captain P.A.
65. On 30 January 2015, at 6.48 p.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Captain P.A. On the day of the incident, at around 10 a.m., Captain P.A. was driving back from UNIFIL position 9-64 towards position 4-28. At 11.40 a.m. he received a call from the Tactical Operations Centre (TOC) ordering him to activate “Operation Blue Porcupine”. He communicated those orders to Sergeant C.M. so that he could alert the rest of the military personnel in the position.
66. The rapid response unit set up the firing positions. It was then that Lance Corporal Soria moved from the inner tower of the position to the main observation tower as the latter, made of armoured glass and reinforced concrete, was considered safer. All the personnel entered the bunkers.
67. At 11.43 a.m. Captain P.A. was informed that projectiles were landing 500 metres away from the position.
68. At 12 noon he was again informed that projectiles were hitting the east side of the position. It was then that he ordered Sergeant G.G. and his squadron to move their VTLM Lince vehicle to the main entrance in order to cut off access to the position.
69. The projectiles kept hitting the east of the position near the village of Abasiva and north of Ghajar. All of a sudden, after a few impacts even closer to the position, an explosion was heard. At that moment, the Captain ordered all the personnel to move back to shelter in the bunkers. When he noticed that Lance Corporal Soria was missing, he asked for two volunteers to help access the observation tower where he had last been seen. After a few failed attempts to unlock the entrance door to the tower, and having no tool to open it, the Captain decided to fire against the door lock. Sergeant C.M., who entered the tower first, informed the Captain of the death of Lance Corporal Soria.
70. The Captain urged Sergeant C.M. to send out an evacuation message.
71. The Captain went back to the bunker as he ordered others to look for missing personnel. Soon after, all the personnel took shelter inside the bunker. Captain P.A. informed his superiors of the events.
72. Sometime later, the medical corps, escorted by cavalry vehicles, entered position 4-28 to assist Lance Corporal Soria. The Captain ordered the Sergeant to ensure security so that the vehicles could safely access the position.
73. The Captain then accompanied the medical corps and informed them of the incident resulting in the death of the Lance Corporal. The medical services then proceeded to verify his death.
74. The Captain also stated that owing to the ongoing explosions in the area, the medical corps and cavalry had had to leave the body of Lance Corporal Soria once they had moved it to the ground floor. It was after orders were received to leave shelter that the body could be transported safely towards position 7-2.
(ix) Sergeant C.M.
75. On 4 February 2015, at 11.30 a.m., at UNIFIL position 4-28 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Sergeant C.M. According to the Sergeant, it was after he had noticed that impacts were becoming closer to the position that the projectile hit the observation tower.
76. Immediately after being informed of the incident, he tried to communicate with Lance Corporal Soria through a walkie talkie as he left the guard post where he was on duty. It was then that he observed that the door to the third floor was open and only the helmet of the Lance Corporal was visible.
77. As the projectiles were hitting the surroundings of the position, the Sergeant walked towards the entrance door to the tower, where he found Captain P.A. ordering Lance Corporal O. to pick up a bag for “life support”. After the Captain unlocked the door, the Sergeant walked upstairs to assist the Lance Corporal. When he reached the third floor, the Sergeant found Lance Corporal Soria lying still. He tried to check his vital signs but could not feel them. After moving the body to facilitate his breathing, he noticed the severity of his injuries, which were incompatible with life. He informed Soldier P.B., Captain P.A. and Lance Corporal O. of the death.
78. The Sergeant was then ordered to report the events and demand evacuation of the body. Once he had fulfilled that mandate, he entered the tower again to verify that nothing could be done for Lance Corporal Soria.
(x) Lieutenant Doctor R.R.
79. On 5 February 2015, at 6.40 p.m., at UNIFIL position 7-2 of BRILIB XXII in Lebanon, Commander B.A. took a statement from Lieutenant Doctor R.R. She said that at 12.30 p.m. on the day of the incident the medical corps had received orders from the TOC to move to position 4-28 for an urgent evacuation.
80. The medical corps, comprising a nurse, doctor, medical assistant and sergeant of the cavalry, arrived at 1.10 p.m. at the position. At that point, they were informed that a member of the military lay wounded on the third floor of the observation tower and was presumed dead.
81. Lieutenant Doctor R.R., together with the nurse, observed Lance Corporal Soria, who was lying on his right side. They checked his carotid pulse, noting that it was absent. His injuries were considered to be incompatible with life.
82. Shortly after, the medical corps covered Lance Corporal Soria with a thermal blanket and immobilised his body in a Kendrick extrication device. On the second floor, however, the Lance Corporal had to be moved into a scoop stretcher as the initial device was not suitable for his injuries.
83. Once on the ground floor, projectiles started landing near position 4‑28. The medical corps left the body in the observation tower and moved to the bunkers, where they stayed until approximately 3.15 p.m.
84. After the personnel had ensured that it was safe, the medical corps placed the Lance Corporal into a body bag. Immediately after, the medical corps drove the body to position 7-2 (the Miguel de Cervantes UNIFIL base) by ambulance.
Reports on the incident(a) Spanish military reports
85. On 6 February 2015 Commander B.A., in his report drawn up in relation to the events, concluded that the death of the applicant’s son had occurred “following the impact of an artillery shell in the course of hostilities that took place on that day [28 January 2015] between various belligerent parties from Israel and Lebanon, while the Lance Corporal was on duty as a sentry in the fortified observation tower of ... position 4-28”. The official report initiated on 28 January 2015 included, apart from the above-mentioned witness statements, photographic evidence taken both in and around the tower. This report was included in the file submitted to the military judge and the central investigating judge.
86. Another internal investigation report, classified as confidential, was issued by the Spanish military personnel in Lebanon. The Government provided a copy of this report.
87. The Government provided a copy of another report issued by Spanish military officers who had been sent to Israel following an agreement between the President of the Government of Spain and the Prime Minister of Israel in the aftermath of the events. The then President of the Section granted the Government’s request to treat this report as confidential, in accordance with Rule 33 of the Rules of Court.
(b) Other reports
88. A confidential report was issued by UNIFIL officials and military personnel with a view to establishing the events leading to the death of the Lance Corporal Soria Toledo. The Court had access to the document, but the then President of the Section acceded to the Government’s request to limit access and treat it as confidential, under Rule 33 of the Rules of Court.[1]
Other relevant information and documents(a) Minister of Defence’s appearance before the Congress of Deputies’ Defence Committee
89. On 14 April 2015 the Minister of Defence, Mr Pedro Morenés y Álvarez de Eulate, appeared before the Congress of Deputies (Defence Committee) with the aim of reporting the facts surrounding the death of Lance Corporal Soria Toledo. He confirmed that three investigations had been carried out with a view to establishing the events leading to his death. The first, on a unilateral basis, was said to have been carried out by the Government of Spain. The other two investigations were carried out by the United Nations and the Government of Israel, the latter in conjunction with the Spanish authorities. According to the Minister, all three investigations led to the conclusion that the attack resulting in the death of the Lance Corporal was due to the negligence of the Israeli forces acting to protect their nationals from Hezbollah.
90. As regards the steps taken by the Government of Spain to elucidate the events leading to the death of Mr Soria Toledo, the Minister stated as follows:
“In my first conversation with Mr Yaalon, Minister of Defence of the State of Israel, we agreed to propose to the presidents of both Governments [Spain and Israel], that they conduct a joint investigation into the events [occurring on 28 January 2015]. Only a few hours later, the President of the Government of Spain and the Prime Minister of Israel, Benjamin Netanyahu, agreed to that proposal. Immediately after, at ministerial level, we established the details leading two military officials of the Spanish army to Tel Aviv on 8 February, where they started working on the investigation. At the same time, the Ministry of Foreign Affairs asked for and obtained a statement from the United Nations regretting this unfortunate incident, as well as an investigation carried out by that organisation and coordinated under UNIFIL ...”
91. On the basis of the investigations conducted, the Minister established the events leading to the death of Mr Soria Toledo as follows:
“... Lance Corporal José Soria Toledo died as a consequence of the direct impact of a 155mm Israeli artillery shell on his position. The shell, launched from a battery in the territory of Israel, approximately 16 kilometres from the impact site, was targeted at Hezbollah at a position 500 metres from UNIFIL position 4-28 ... When firing, multiple errors were committed. The first derives from the fact that [the IDF] took an excessive risk when a distance of less than 500 metres with regard to the objective was considered safe enough. Not only did the shell hit [the tower], at least eight other shells were confirmed to have deviated [from their original trajectory], due to the fact that the Israeli artillerymen did not employ any method for observing the shells’ impact and therefore did not possess the ability to correct their launch. The planning of the launch took into account the terrain of the UNIFIL premises but not their height, so [the launch] ignored, in consequence, the existence of an obstacle 10 metres high right in the shell’s trajectory. [The IDF] lacked meteorological information, which is why it could not take into account the margin of error as a consequence of the wind blowing at the time at 30 to 45 kilometres per hour. The force of the wind can cause deviations in the shot of more than 300 metres. In addition, the launch was performed at the shell’s maximum effective distance, which increases the possibility of error in the shot ...There was therefore obviously no intention from the IDF against UNIFIL, its action being a response to and protection from Hezbollah. Having said this, Israel acknowledges its responsibility for the impact, and describes every single error that I have just mentioned and that resulted in the fatal outcome.
...
International law imposes a responsibility for damage caused by one State to another when the action was of a negligent nature, like in the present case, even though there was no intention or direct will to cause it, on the basis of the fact that the State of Israel did not adopt, when it should have, the necessary preventive measures in order to avoid the resulting damage. In any event, and taking into account that international law cannot impose responsibilities on the responsible State without its consent, our claim seeks an agreement [on said responsibility] between Spain and Israel ...
It is evident that the Israeli forces were perfectly aware and know of ... [position 4‑28]. It is also evident that they acted negligently. It is evident, because it is recognised by the United Nations and the reports, that Israel communicated to UNIFIL that it would retaliate. And it acted wrongly, disregarding the communication but regarding the launch.”
(b) Press statement by the UN Security Council of 4 February 2015
“The members of the Security Council condemned in the strongest terms the killing of a United Nations Interim Force in Lebanon (UNIFIL) Spanish peacekeeper, which occurred in the context of fire exchanges along the Blue Line on 28 January 2015.
The members of the Security Council expressed their deepest sympathy to the family of the fallen peacekeeper and to the Government of Spain.
The members of the Security Council looked forward to the immediate completion of UNIFIL’s full and comprehensive investigation to determine the facts and circumstances of the incident.”
(c) Report of the UN Secretary-General on the implementation of the Security Council Resolution 1701 (2006)
92. On 27 February 2015 the Secretary-General of the United Nations published a report which included references to the events that led to the death of Lance Corporal Soria Toledo. In paragraphs 62 and 63, under the heading “Observations”, he stated as follows:
“62. I condemn the attack on an Israeli military convoy on 28 January, claimed by Hizbullah, which killed two Israeli soldiers and injured several others. This attack constitutes a serious violation of the cessation of hostilities between Lebanon and Israel, and of the provisions of resolution 1701 (2006). Hizbullah’s hostile activity from the UNIFIL area of operations is in direct contravention of resolution 1701 (2006), including the provision that there should be no armed personnel, assets or weapons in the area other than those of the Government of Lebanon and of UNIFIL.
63. Retaliatory fire by Israel into Lebanon is in violation of resolution 1701 (2006) and of the cessation of hostilities, and does not conform to the United Nations expectations that the parties will notify UNIFIL of an incident and will refrain from responding, except where clearly required in immediate self-defence. I condemn the killing of a United Nations peacekeeper, which resulted from retaliatory fire by the Israel Defence Forces into Lebanon. This incident took place within a United Nations position, the coordinates of which are fully known to the Israel Defence Forces.”
Domestic judicial proceedings93. On the day of the events, 28 January 2015, the Defence Staff Headquarters reported the death of the Lance Corporal to Madrid military judge no. 11, then on duty. The judge instituted criminal pre-trial proceedings no. 11/05/15 (see paragraph 23 above).
94. On 10 March 2015 the applicant (and her husband, the father of Lance Corporal Soria Toledo) appeared before the Madrid military judge in order to bring civil and criminal proceedings in connection with the death of her son.
95. On 12 March 2015 the Chief of Defence submitted to the Madrid military judge a copy of the report drawn up in relation to the events (see paragraph 87 above), including the witness statements and photographic evidence obtained.
96. In view of the previous report, on 13 April 2015 the military Prosecutor requested information to determine whether or not the Spanish courts had jurisdiction to prosecute the alleged crime (the existence of international treaties concluded by Spain regarding its involvement in UNIFIL and whether criminal proceedings had been instituted by an international tribunal or by the State where the events occurred or of which the accused was a national).
97. On 22 April 2015 the applicant, considering that the acts might constitute a crime under Articles 138 (manslaughter) and/or 142 (reckless homicide) of the Spanish Criminal Code, asked the military judge to transfer the case to the central investigating judges of the Audiencia Nacional, in accordance with section 65(1)(e) of the Organic Law on the Judiciary. She referred to the statements made by the UN Secretary-General (see the report in paragraph 92 above), as well as to the declarations made by the Minister of Defence in relation to the events (see paragraphs 89-91 above).
98. On 8 June 2015 the Madrid military judge held that the acts were not covered by any of the provisions of the Military Criminal Code and, furthermore, that the conditions for the establishment of military jurisdiction over acts carried out outside the national territory (section 12 of the Organic Law on Military Jurisdiction) were not met. It mentioned however that the ordinary criminal courts could have jurisdiction in respect of the crime of an attack (atentado) on the authorities or public servants and terrorism if committed by Spanish nationals or foreigners outside the national territory. Accordingly, it transferred the case to the central investigating judges of the Audiencia Nacional, who, pursuant to the Judiciary Act, were competent in those matters.
99. On 30 June 2015 central investigating judge no. 4 launched criminal pre-trial proceedings under the accelerated procedure (no. 61/2015).
100. On 9 July 2015 the applicant lodged a formal criminal complaint against members of the military units of Israel who had executed or given the orders leading to her son’s death. She also adapted the legal characterisation of the facts to the ordinary jurisdiction: the events were then characterised as an attack (atentado) on the authorities, their agents or public servants under Articles 550 et seq. of the Criminal Code and as terrorism under Articles 571 and 572 § 1 of the Criminal Code. The applicant requested access to the reports mentioned by the Minister of Defence during his appearance before the Congress of Deputies. She also asked that the Spanish military officers who had participated in the joint investigation with Israel, those whose statements had been taken during the initial investigation by Spanish military officers in Lebanon (see paragraphs 29-84 above), as well as those who had been responsible for the latter (Chief R.O. and Commander B.A.), be heard as witnesses.
101. On 18 January 2016 central investigating judge no. 4, before taking a decision on the admissibility of the complaint, sent an international letter rogatory to the competent judicial authority in Israel to provide any information regarding the events and to confirm whether any proceedings were being conducted in relation thereto and, if appropriate, the body and type of proceedings. The request was lodged on the basis of the reciprocity principle between the State of Israel and the Kingdom of Spain, and in conformity with the European Convention on Legal Assistance in Criminal Matters of 20 April 1959.
102. On 20 January 2017 the applicant complained to the central investigating judge of delays in the proceedings, and submitted that it was evident that there were no parallel criminal proceedings in Israel in relation to the events. In such circumstances, she requested that the matter be submitted to the Second Chamber (Criminal Division) of the Supreme Court for the purposes of section 23(5) of the Organic Law on the Judiciary, in order to determine whether the State that exercised jurisdiction was unwilling or unable to carry out an investigation.
103. After several reminders sent by the Spanish authorities, the Israeli authorities (Ministry of Justice, Office of the State Attorney), in a letter dated 22 February 2017 and received on 13 March, responded to the request for legal assistance. They reported as follows:
“We are writing further to the International Request for Judicial Assistance of the Honourable Judge Fernando Andreu Merelles (hereinafter ‘the Request’), transmitted by your office and received by our Department on 29 June 2016, seeking information about events occurring in Lebanon on 28 January 2015 that led to the tragic death of Corporal Francisco Javier Soria Toledo. In response to the Request, the Israeli authorities would like to present the Spanish authorities with the information that follows.
The Israeli authorities provide such information out of respect for the Spanish judicial authorities and in the spirit of cooperation notwithstanding Israel’s position that this is an inappropriate case for the exercise of criminal jurisdiction by foreign judicial authorities. Additionally, we would note that in the view of the Israeli authorities the European Convention on Mutual Assistance in Criminal Matters ... by its terms does not apply in matters relating to military operations and International Humanitarian Law and thus does not create assistance obligations in such cases.
The incident which led to the tragic death of Corporal Francisco Javier Soria Toledo, began on 28 January 2015, at 11.28 a.m., when Hezbollah launched a cross-border attack from Southern Lebanon into northern Israel, targeting Israeli soldiers and civilians. Two Israeli soldiers were killed in the attack and eight Israeli soldiers as well as four Israeli civilians were wounded.
The Israel Defence Force (‘IDF’) responded to the attack with artillery fire directed at Hezbollah operational positions. The IDF gave advance warning to UNIFIL prior to its military response to the attack. Nevertheless, Corporal Soria, a member of the UNIFIL peacekeeping force, was killed during the course of the IDF artillery response.
When information regarding the death of Corporal Soria reached the IDF, immediate steps were taken by the IDF to investigate the circumstances of the events. In this framework, the incident was subject to an IDF command inquiry – an examination led by the commands of all relevant forces. Alongside this command inquiry, a thorough review of the incident was conducted by the IDF General Staffs Mechanism for Fact- Finding Assessments (‘FFA Mechanism’). The FFA Mechanism is a specially designated mechanism, led by a senior IDF officer outside the chain of command of the relevant forces. The FFA Mechanism investigation is designed to facilitate a prompt, independent and effective examination of incidents.
The IDF’s inquiries into the incident concluded that the Israeli military action in response to the Hezbollah attack was reasonable under the operational circumstances, and that the unfortunate death of Corporal Soria occurred as the result of the wholly unintentional deviation of an artillery shell. The findings of the inquiries, which are privileged under Israeli law, were presented for review to the Military Advocate General, who is an independent military prosecution authority vested with the authority to initiate a criminal investigation or disciplinary proceeding where such are warranted. Following his review, the Military Advocate General concluded that the circumstances of the incident and of Corporal Soria’s tragic death did not warrant the initiation of criminal proceedings. The conclusions and the main findings of the aforementioned IDF examinations were shared and discussed, on a confidential basis, by the IDF with the Spanish authorities.
Israel has expressed its genuine and deep sorrow over Corporal Soria’s death. As an expression of its sorrow, Israel has provided an ex gratia payment to the wife and daughter of Corporal Soria. Israel, however, very strongly feels that the matter of Corporal Soria’s death has no place in a criminal inquiry in Spain. Both the facts of the military incident and the fact that comprehensive inquiries into the incident were conducted in Israel demonstrate that there is no basis for consideration of criminal liability in this case. Israel understands as well that there are also strong jurisdictional bars under Spanish law to the initiation of criminal proceedings in this matter.
Nevertheless, in light of Israel’s sincere sorrow for Corporal Soria’s death and in light of its deep respect for the Spanish judicial authorities, including Honourable Judge Andreu Merelles, Israel has elected to provide the above information and explanations in response to the Spanish Request.
Finally, we apologise for the delay in relaying this response. It required coordination and consultation with a number of authorities here and this unfortunately took several months. Please do not hesitate to contact us with any questions regarding the above response to your Request.”
104. On 23 March 2017 the Public Prosecutor requested that the matter not be referred to the Supreme Court and that the applicant’s criminal complaint be dismissed. She contended that the acts were outside the scope of Spanish criminal jurisdiction.
105. On 29 March 2017 the central investigating judge issued a decision (auto) dismissing the criminal complaint. The decision identified the events leading to Lance Corporal Soria Toledo’s death as an act of war over which the Spanish criminal courts had no jurisdiction. In particular, the following was stated:
“The complaint cannot be admitted and, in consequence, the matter cannot be submitted to the Second Chamber of the Supreme Court, as requested by the applicant, for the purposes of [section 23(3)(g) and 23(4)(e)(8) of the Organic Law on the Judiciary].
This [conclusion] derives from the fact that the death of the Lance Corporal occurred in the context of hostilities ... between different belligerents from Israel and Lebanon, when Hezbollah launched an attack from the south of Lebanon towards the north of Israel ... the projectile which hit the Spanish Lance Corporal was launched from a battery in Israeli territory, as recognised by Israel, which, assuming responsibility under international law for the damage caused to one State by another has offered compensation, which distorts the premise of [section 23(4)(e)(4) of the Organic Law on the Judiciary], in that for the extension of Spanish jurisdiction to crimes committed outside the national territory, the crime has to be identified as an act of terrorism, being evident that the exchange of fire between two contenders is not an act of terrorism, but an act of war ... [Furthermore,] in the hypothetical case that Israel had committed a negligent act in calculating the safety distance when launching the projectiles, we would not be faced with an act of terrorism ... [In addition, in the event that this was an act of terrorism], which it is not, it would not be punishable because the negligent commission of crimes of terrorism is only punishable in cases of collaboration with terrorist acts, a premise that is not fulfilled in the present case.
On the other hand, as already stated, it is not appropriate to submit [the case] to the Second Chamber of the Supreme Court for the purposes of [section 23(3)(g) and 23(4)(e)(8) of the Organic Law on the Judiciary].
Firstly, the State of Israel having submitted the international letter rogatory to this court, ... it can be inferred from its examination that in that country an exhaustive investigation was conducted into the facts, concluding that the Israeli military action, in response to the attack perpetrated by Hezbollah, was reasonable with regard to the operative circumstances existing at the time, and that the unfortunate death was the consequence of the deviation, absolutely involuntarily, of an artillery shell, which did not justify the opening of criminal proceedings, [and] there is no basis to consider the existence of criminal liability in this case, not being fulfilled in consequence the legal requirements provided for in [section 23(4)(e) of the Organic Law on the Judiciary], that would render the submission of the matter to the Supreme Court appropriate, that is, that the act would be identified as terrorism, which is not the case at present ...
Secondly, the limitations laid down in [subsection] 5 of the aforementioned [section] are not applicable to prosecution by the Spanish courts of the crime of an attack perpetrated against the Spanish authorities or public servants committed outside the national territory, because those limitations refer expressly to the cases in [subsection] 4, the intervention of the Supreme Court with regard to [subsection 5] therefore not being provided for ... [I]n the present case, we are faced with an act of war, [and] while one could consider the objective existence of a crime of an attack on a Spanish public servant, such a crime would only be punishable when committed intentionally (forma dolosa) in accordance with Article 12 of the Criminal Code ... In any event, since we are faced at present with an act of negligence, [the act] is not punishable under the Spanish Criminal Code.”
106. On 12 April 2017 the applicant appealed (recurso de reforma) before central investigating judge no. 4, arguing that the intentionality (dolo eventual) required for the acts to be punishable could not be excluded, having regard to the existing evidence obtained in the context of the Spanish military investigation. The applicant pointed to the differences between the witness statements obtained in that investigation and the version given by the Israeli authorities. On 17 May 2017 the central investigating judge dismissed the applicant’s appeal, reiterating the arguments in its previous decision.
107. The applicant appealed (recurso de apelación) before the Criminal Division of the Audiencia Nacional.
108. On 9 June 2017 the Third Section of the Criminal Division of the Audiencia Nacional issued a decision (auto no. 227/2017) dismissing the appeal and upholding the decisions of the central investigating judge. The Audiencia Nacional stated as follows:
“[The claimants] refer to the fact that the position of the Spanish troops was known to the Israeli forces, particularly to the official report initiated in the operations zone, according to which Israel had been launching a number of projectiles for three hours, one of which had hit the Spanish military officer.
Since, according to the investigation into the incident carried out by the IDF, which corresponds to the information obtained by the Government [of Spain], transmitted to the Defence Committee of the Congress of Deputies, there was only one deviation [of an artillery shell], it is clear that the [Spanish] courts have assumed jurisdiction, and it is on that basis that we confirm the inadmissibility of the criminal complaint, the acts described not being constitutive of criminal offences, since an exchange of fire in the context of war is not terrorism as provided for in Article 573 of the Criminal Code ... Along the same lines, the negligent version of the crime of collaboration with a terrorist organisation, as provided for in Article 577 § 3 of the Criminal Code, does not come close to the facts of the present case. [S]imilarly, since the court does not have information proving that the [projectile] was directed against the multinational force and a specific component within that force, in order to consider the potential application of Article 550 of the Criminal Code, the decision of the [previous judicial] instance must be upheld, without it being necessary to initiate proceedings and reiterate the investigative measures of report XXII/01/2015 [of the Spanish military investigation] or of the reports referred to by the parliamentary committee on 14 April 2015, since the investigation by the Israeli authorities is included in the file, that of Spain is in the aforementioned report, whereas that conducted by the United Nations and that conducted jointly between the United Nations and Israel did not reach different conclusions ...”
109. The applicant lodged an amparo appeal with the Constitutional Court. She relied on Article 24 § 1 of the Constitution (right to effective judicial protection) and Articles 6 and 13 of the Convention. On 5 February 2018 the Constitutional Court declared the appeal inadmissible owing to the non-existence of a violation of a fundamental right protected by the amparo appeal. This decision was served on the applicant on 28 February 2018.
Compensation awarded and offered110. As a result of Lance Corporal Soria Toledo’s death, his widow and daughter were awarded a lifetime survivor’s pension and a lifetime orphan’s pension respectively. They also received lump sums in accordance with Royal Decree-Law no. 8/2004 on compensation for participants in international peace and security operations.
111. Compensation was also awarded by the United Nations to his widow. The State of Israel offered ex gratia compensation of 200,000 euros (EUR) to her and their daughter.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
Relevant domestic law and practiceConstitution112. Article 15 states that “[e]veryone has the right to life and to physical and moral integrity and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment”.
113. Article 117 § 3 stipulates that the exercise of judicial authority “lies exclusively within the competence of the Courts and Tribunals established by law, in accordance with the rules of jurisdiction and procedure which may be established therein”. Article 117 § 5 states that “[t]he principle of jurisdictional unity is the basis of the organisation and operation of the Courts. The law shall regulate the exercise of military jurisdiction strictly within military limits and in cases of state of siege (martial law), in accordance with the principles of the Constitution”.
Criminal Code (Organic Law no. 10/1995 of 23 November 1995, as in force at the material time)114. Article 12 states that negligent action and omissions will be punished only where specifically provided for by law.
115. Article 142 provides for imprisonment of one to four years of anyone who causes the death of an individual by gross negligence (reckless homicide).
116. Article 550 stipulates that anyone who attacks the authorities, its agents or public servants, or uses force against them, seriously threatens them or actively resists them in the course of their official duties or in connection therewith is guilty of an attack (atentado) on the authorities, which is punishable by a term of imprisonment of two to four years and a fine of three to six months if committed against an authority, and by a term of imprisonment of one to three years in other cases.
117. Article 571 § 3 defines terrorist organisations or groups as groups that, fulfilling the characteristics established in Articles 570 bis and 570 ter respectively (two or more persons who, for a definite or indefinite period of time, are each allocated tasks for the coordinated commission of crimes), have the purpose or objective of subverting the constitutional order or seriously altering the public peace by committing any of the offences provided for in the following chapter (terrorist offences). Article 572 § 1 provides for fifteen to twenty years’ imprisonment of those who, while a member of, acting in the service of or collaborating with terrorist organisations or groups, commit the crimes of havoc (estragos) or arson. Article 572 § 2 states that those who, while a member of, acting in the service of or collaborating with terrorist organisations or groups commit attacks against persons are liable to a term of imprisonment of twenty to thirty years if this results in a person’s death.
118. The following provisions of Chapter III, entitled “Crimes against protected persons and property in the event of armed conflict”, are relevant to the present case.
119. Article 608 § 3 considers civilians protected under the Fourth Geneva Convention and Additional Protocol I to fall under the scope of “protected persons” for the purposes of Chapter III. United Nations personnel protected under the Convention on the Safety of United Nations and Associated Personnel of 1994 also fall into the same category (Article 608 § 6).
120. Article 609 stipulates that anyone who, during an armed conflict, physically abuses or seriously endangers the life, health, or integrity of any protected person, is liable to a term of imprisonment of four to eight years, without prejudice to the punishment that might be appropriate for the results caused.
121. Article 610 stipulates that anyone who, during an armed conflict, uses or orders methods or means of combat that are prohibited or intended to cause unnecessary suffering or superfluous harm, is liable to a term of imprisonment of ten to fifteen years, without prejudice to the relevant punishment for the results caused.
122. Article 611 § 1 states that anyone who, during an armed conflict, conducts or orders indiscriminate or excessive attacks or makes the civilian population the target of attacks, retaliation or acts or threats of violence, the main purpose of which is to strike fear, is liable to a term of imprisonment of ten to fifteen years. Article 611 § 7 provides for the same term of imprisonment of those who, during an armed conflict, impede or delay, without reason, the release or repatriation of civilians.
123. Article 612 § 10 provides for three to seven years’ imprisonment of anyone who, during an armed conflict, intentionally directs attacks against personnel of the United Nations and associated personnel or those participating in peacekeeping or humanitarian missions in accordance with the UN Charter, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict, or threatens to commit any such attack with the objective of compelling a physical or legal person to commit or to refrain from committing any act.
124. Article 614 stipulates that anyone who, during an armed conflict, perpetrates or orders any other violations or acts contrary to the provisions of the international treaties to which Spain is a party and related to how hostilities are conducted, regulation of the means and methods of combat, protection of the wounded, the sick and shipwrecked, due treatment of prisoners of war, protection of civilians and protection of cultural property in the event of armed conflict, is liable to a term of imprisonment of six months to two years.
Organic Law no. 6/1985 of 1 July 1985 on the Judiciary (as amended by Organic Law 1/2014 of 13 March 2014 – “LOPJ”)125. Section 23(3) provides that acts committed by Spanish nationals or foreigners outside Spanish territory fall under the jurisdiction of the Spanish criminal courts where they can be classified, under Spanish criminal law, as certain crimes, including the crime of an attack (atentado) on the Spanish authorities or public servants (section 23(3)(g)).
126. Section 23(4)(a) grants the Spanish courts jurisdiction over genocide, crimes against humanity and crimes against protected individuals and property in the event of armed conflict, perpetrated by Spanish citizens or foreigners outside Spanish territory, provided that the proceedings are brought against a Spanish citizen or a foreigner whose place of residence is in Spain, or a foreigner who is in Spain and whose extradition has been refused by the Spanish authorities. Section 23(4)(e) grants the Spanish courts jurisdiction over the crime of terrorism committed outside Spanish territory if, among other circumstances, the proceedings are brought against a Spanish citizen, the victim had Spanish nationality at the time the acts were perpetrated, or the crime was committed against official Spanish premises.
127. Section 23(5)(b) provides that the crimes referred to in section 23(4) will not be prosecuted in Spain where proceedings to investigate and prosecute have been initiated in the State where the acts took place, or in the State of which the individual charged is a national, where the individual charged is not in Spanish territory, among other circumstances. Nonetheless, section 23(5)(b) does not apply where the State that exercises its jurisdiction is unwilling or genuinely unable to carry out the investigation, and this is recognised by the Second Chamber (Criminal Division) of the Supreme Court. In order to determine whether unwillingness exists in a particular case, the Spanish courts will take into account whether the proceedings were initiated or are underway for the purposes of shielding the person concerned from criminal responsibility; whether there has been an unjustified delay; or whether the proceedings were not or are not being conducted independently or impartially, and were or are being conducted in a manner inconsistent with the intent to bring the person concerned to justice.
128. Section 23(6) stipulates that the crimes referred to in subsections (3) and (4) will only be prosecuted in Spain where proceedings have been brought by the injured party or the Public Prosecutor’s Office.
Organic Law no. 4/1987 of 15 July 1987 on the Competence and Organisation of the Military Jurisdiction (“Organic Law on Military Jurisdiction”)129. Section 12(1) provides that in peacetime, the military courts are competent to prosecute the crimes included in the Military Criminal Code. Section 12(3) and (4) extends this competence in the event of permanent or temporary presence outside the national territory of Spanish military forces or units, to crimes included in international treaties, agreements or conventions to which Spain is a party, or where there are no applicable treaties, to all crimes under Spanish law, provided that the accused is a Spanish citizen and they were committed during service or in the areas occupied by Spanish military forces or units.
130. Section 115 stipulates that heads of independent units or the Special Forces, isolated or with military control over a territory, must, as soon as they have knowledge of the commission of a crime under military jurisdiction, perpetrated by anyone subordinate to them or committed in the place where they exercise control, communicate it to the military judge and appoint an officer under their command, assisted by a secretary, to initiate the corresponding report.
Military Criminal Code (Organic Law no. 14/2015 of 14 October 2015)131. The Military Criminal Code applies only to perpetrators of a crime who, at the relevant time, were considered military personnel. Accordingly, Article 1 § 1 states that the Military Criminal Code applies to acts constituting military crimes.
132. Article 2 provides that, for the purposes of the Code, military personnel are those who at the time of commission of the crime were in the military.
Constitutional Court case-law133. The Constitutional Court summarised its case-law regarding universal jurisdiction in its judgment no. 140/2018 of 20 December 2018. This decision analyses the approach adopted by Parliament in 2014 (Organic Law no. 1/2014) on restricting the extraterritorial/universal jurisdiction of the Spanish courts only to cases where there is a particularly intense point of connection that would allow the effective exercise of the right of access to a court (the link of nationality of the perpetrator or victim, the nature of the crime or the obligation assumed under international treaties). The Constitutional Court considered that Organic Law no. 1/2014 was not unconstitutional.
134. As regards the compatibility of this approach with Spain’s international obligations, the Constitutional Court observed that:
“It cannot be deduced from the pronouncements of the United Nations General Assembly, the International Court of Justice or the European Court of Human Rights the configuration of an absolute and general principle of universal jurisdiction that is mandatory for the signatory States of the treaties included in these systems. On the other hand, it cannot be affirmed that Article 24 § 1 of the Spanish Constitution, in terms of access to jurisdiction, interpreted in the light of the human rights treaties ratified by Spain in the reading of those treaties by its supervisory bodies, enunciates a principle of absolute universal jurisdiction as defined in [section 23(4) of the Organic Law on the Judiciary], in its original version, which cannot be altered by the legislator. It should therefore be understood that the right of access to jurisdiction, in particular as interpreted by the European Court of Human Rights, since it is not absolute, may be subject, in its applicable validity, to implicitly admitted limitations, especially with regard to the admissibility requirements of an appeal. Among these limitations, the introduction of procedural requirements in cases of extension of jurisdiction may be noted.
Organic Law 1/2014 is not therefore, considered as a whole, contrary to Article 10 § 2 of the Spanish Constitution in relation to Article 24 § 1 of the Spanish Constitution because it defines the principle of universal jurisdiction in a restrictive manner. This is because it cannot be deduced from international human rights law, which is a mandatory interpretation parameter for this court, an absolute and mandatory concept of the universality of jurisdiction such as that defended by the appellants. The appeal must be dismissed on this point.”
Audiencia Nacional case-law135. On 11 September 2020 the Audiencia Nacional found Inocente Orlando Montano Morales, a former Salvadoran army colonel serving as a government security minister, guilty of the murder of five Spanish Jesuits in 1989. The decision considered that the crimes had been committed by an organised group, which qualified as “terrorism” under Spanish law.
136. The assassination of Ignacio Ellacuría occurred in the context of the conflict between the Farabundo Martí National Liberation Front (FMLN) and the Salvadoran army. The latter considered the Jesuits, amongst whom Ignacio Ellacuría was particularly important as rector of the Central American University (UCA), to be the “intellectual leaders” of FMLN. The Inter-American Commission of Human Rights considered, along with other external observers, that there had not been a diligent and effective investigation into the events by the Salvadoran State, nor impartial and objective proceedings (Report no. 136/99, 22 December 1999).
137. In the first section of its legal reasoning, the Audiencia Nacional stated as follows:
“[Section 23(4)(e)(4) of the Organic Law on the Judiciary] ... grants jurisdiction to the Spanish [courts], in criminal matters, to prosecute crimes of terrorism, where the victim was a Spanish national at the time the events occurred. [Thus, the law] assumes partially and on the basis of the nature of the crime, the passive personality principle, which grants jurisdiction to a State to prosecute crimes committed in a foreign country against one of its nationals ... especially if they are not granted judicial protection in the State in which they were victims of the crime.”
138. With regard to the legal classification of the acts as a crime of terrorism, the judgment (section 7 of its legal reasoning) stated as follows:
“An action can be considered of a terrorist nature even if the perpetrator is not a member of such an organisation ... The acts punishable under that article are per se, by their nature, when they are committed with the aim of subverting the constitutional order or seriously altering public peace. The determining factor, in this case, is not the subjective quality of being a member of a terrorist organisation, but the serious material content of the objective conduct carried out by the individual.”
International law and materialsInternational agreements in relation to UNIFIL(a) Agreement between the United Nations and the Government of Lebanon on the Status of UNIFIL
139. The provisions contained in this Agreement regulate the status of the United Nations Interim Force in Lebanon. It was signed by the parties on 15 December 1995 and ratified by the Government of Lebanon on 21 August 2008.
140. Paragraph 16 states as follows:
“The Government of Lebanon shall provide without cost to UNIFIL and in agreement with the Force Commander such areas for headquarters, camps or other premises as may be necessary for the conduct of the operational and administrative activities of UNIFIL and for the accommodation of the members of UNIFIL. Without prejudice to the fact that all such premises remain Lebanese territory, they shall be inviolable and subject to the exclusive control and authority of the United Nations. Where United Nations troops are co-located with the Lebanese military personnel, a permanent, direct and immediate access by UNIFIL to those premises shall be guaranteed.”
141. The Agreement includes the following provisions on jurisdiction (paragraphs 45 and 47):
“45. The Government shall ensure the prosecution of persons subject to its criminal jurisdiction who are accused of facts in relation to UNIFIL, or its members which, if committed in relation to the forces of the Government, would have rendered such acts liable to prosecution.
...
47. Should the Government consider that any member of UNIFIL had committed a criminal offence ...:
... (b) Military members of the military element of UNIFIL shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences which may be committed by them in Lebanon.”
142. In relation to deceased members, the Agreement stipulates the following (paragraph 49):
“49. The Force Commander shall have the right to take charge of and dispose of the body of a member of UNIFIL who dies in Lebanon, as well as that member’s personal property located within Lebanon, in accordance with United Nations procedures.”
143. Force commander is defined in the Agreement as the “Force Commander of UNIFIL appointed by the Secretary-General of the United Nations. Any reference to the Force Commander in th[e] Agreement shall, except in paragraph 21, include any member of UNIFIL to whom he or she delegates a specified function or Authority”.
(b) Memorandum of Understanding between the United Nations and the Government of Spain contributing resources to the United Nations Interim Force in Lebanon (UNIFIL), entered into force on 1 January 2009
144. The MoU between the United Nations and Spain contributing resources to UNIFIL establishes the administrative, logistics and financial terms and conditions to govern the contribution of personnel, equipment and services provided by the Government in support of UNIFIL and specifies UN standards of conduct for personnel provided by the Government of Spain. The following provisions are considered relevant for the present case.
145. Article 7 quater on investigations (7.10) states that:
“It is understood that the Government has the primary responsibility for investigating any acts of misconduct or serious misconduct committed by a member of its national contingent.”
146. Article 7 quinquiens (7.22) deals with the exercise of jurisdiction by the Government of Spain. In particular it states that:
“Military members and any civilian members subject to national military law of the national contingent provided by the Government are subject to the Government’s exclusive jurisdiction in respect of any crimes or offences that might be committed by them while they are assigned to the military component of UNIFIL. The Government assures the United Nations that it shall exercise such jurisdiction with respect to such crimes or offences.”
147. Article 7 sexiens (7.24) on accountability stipulates that:
“If either a United Nations investigation or an investigation conducted by the competent authorities of the Government concludes that suspicions of misconduct by any member of the Government’s national contingent are well founded, the Government shall ensure that the case is forwarded to its appropriate authorities for due action. The Government agrees that those authorities shall take their decision in the same manner as they would in respect of any other offence or disciplinary infraction of a similar nature under its laws or relevant disciplinary code. The Government agrees to notify the Secretary-General of progress on a regular basis, including the outcome of the case.”
United Nations Security Council Resolutions148. Resolutions 425 (1978) and 426 (1978) of 19 March 1978 provide that UNIFIL was established for the purpose of confirming the withdrawal of Israeli forces from southern Lebanon, restoring international peace and security and assisting the Government of Lebanon in ensuring the return of its effective authority in the area.
149. Resolution 1701 (2006) was adopted by the Security Council at its 5511th meeting, on 11 August 2006. It expanded the mandate of UNIFIL.
150. In its paragraph 1, the Security Council called for:
“a full cessation of hostilities based upon, in particular, the immediate cessation by Hezbollah of all attacks and the immediate cessation by Israel of all offensive military operations.”
151. Paragraph 7 of the Resolution reads as follows:
“[The Security Council] [a]ffirms that all parties are responsible for ensuring that no action is taken contrary to paragraph 1 that might adversely affect the search for a long-term solution, humanitarian access to civilian populations, including safe passage for humanitarian convoys, or the voluntary and safe return of displaced persons, and calls on all parties to comply with this responsibility and to cooperate with the Security Council.”
152. Paragraph 8 called for:
“Israel and Lebanon to support a permanent ceasefire and a long-term solution based on the following principles and elements:
- full respect for the Blue Line by both parties;
- security arrangements to prevent the resumption of hostilities, including the establishment between the Blue Line and the Litani river of an area free of any armed personnel, assets and weapons other than those of the Government of Lebanon and of UNIFIL as authorized in paragraph 11, deployed in this area ...”
153. Paragraph 11 reads as follows:
“[The Security Council] [d]ecides, in order to supplement and enhance the force in numbers, equipment, mandate and scope of operations, to authorize an increase in the force strength of UNIFIL to a maximum of 15,000 troops, and that the force shall, in addition to carrying out its mandate under [R]esolutions 425 and 426 (1978):
(a) monitor the cessation of hostilities;
(b) accompany and support the Lebanese armed forces as they deploy throughout the South, including along the Blue Line, as Israel withdraws its armed forces from Lebanon as provided in paragraph 2;
(c) coordinate its activities related to paragraph 11(b) with the Government of Lebanon and the Government of Israel;
(d) extend its assistance to help ensure humanitarian access to civilian populations and the voluntary and safe return of displaced persons ...”
154. Paragraph 12 reads as follows:
“Acting in support of a request from the Government of Lebanon to deploy an international force to assist it to exercise its authority throughout the territory, authorizes UNIFIL to take all necessary action in areas of deployment of its forces and as it deems within its capabilities, to ensure that its area of operations is not utilized for hostile activities of any kind, to resist attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council, and to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of United Nations personnel, humanitarian workers, and without prejudice to the responsibility of the Government of Lebanon, to protect civilians under imminent threat of physical violence ...”
Relevant agreements to which Spain and Israel are States Parties(a) Agreement on the Protection of Classified Information between the Kingdom of Spain and the State of Israel
155. The latest version of this Agreement was signed by the Kingdom of Spain and the State of Israel on 7 February 2011 and came into effect on 12 August 2014.
156. In its Preamble, of a binding nature as indicated by Article 1 of the Agreement, it is stated that “... [t]he Parties aim to cooperate in joint defence and military projects, as well as aim to protect Classified Information exchanged between them”.
157. Under Article 3 (A), the Agreement will be enforced in cases of “[c]ooperation between the Parties and/or entities related to the Parties in defence and military matters”.
(b) European Convention on Mutual Assistance in Criminal Matters
158. The European Convention on Mutual Assistance in Criminal Matters was adopted in 1959. The Government of Spain ratified it on 18 August 1982, while the State of Israel ratified it on 27 September 1967.
159. Article 1 provides as follows:
“1. The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.
2. The Convention does not apply to arrests, the enforcement of verdicts or offences under military law which are not offences under ordinary criminal law.”
160. Article 2 (b) states that assistance may be refused “if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country”.
Convention on the Safety of United Nations and Associated Personnel161. Spain signed this Convention on 19 December 1994 and ratified it on 13 January 1998. Israel is not a party to it, while Lebanon has been a party since 25 September 2003.
162. It applies to those engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a UN operation (“United Nations personnel”). The Convention (Article 1) defines a “United Nations operation” as:
“an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control:
(i) Where the operation is for the purpose of maintaining or restoring international peace and security; or
(ii) Where the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation ...”
163. Article 2 of the Convention defines its scope of application as follows:
“1. This Convention applies in respect of United Nations and associated personnel and United Nations operations, as defined in article 1.2. This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.”
164. Article 7 (2) states:
“States Parties shall take all appropriate measures to ensure the safety and security of United Nations and associated personnel. In particular, States Parties shall take all appropriate steps to protect United Nations and associated personnel who are deployed in their territory from the crimes set out in [A]rticle 9.”
165. Article 9 (1) defines as a crime against United Nations and associated personnel the intentional commission of, inter alia, : (a) “a murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel”; (b) “a violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty”, and (e) “an act constituting participation as an accomplice in any such attack, or in an attempt to commit such attack, or in organizing or ordering others to commit such attack”. Article 9 (2) states that “[e]ach State Party shall make the crimes set out in paragraph 1 punishable by appropriate penalties which shall take into account their grave nature”.
166. Article 10, headed “Establishment of Jurisdiction”, reads as follows:
“1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in [A]rticle 9 in the following cases:
(a) When the crime is committed in the territory of that State or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State.
2. A State Party may also establish its jurisdiction over any such crime when it is committed:
(a) By a stateless person whose habitual residence is in that State; or
(b) With respect to a national of that State; or
(c) In an attempt to compel that State to do or to abstain from doing any act.
...
4. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in [A]rticle 9 in cases where the alleged offender is present in its territory and it does not extradite such person pursuant to [A]rticle 15 to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2.
5. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.”
Customary law167. Rule 33 of the Customary International Humanitarian Law study by the International Committee of the Red Cross (ICRC) reads as follows:
“Directing an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law, is prohibited.”
According to the commentary to this Rule:
“State practice treats peacekeeping forces, which are usually professional soldiers, as civilians because they are not members of a party to the conflict and are deemed to be entitled to the same protection against attack as that accorded to civilians, as long as they are not taking a direct part in hostilities ...
Under the Statute of the International Criminal Court, intentionally directing attacks against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations constitutes a war crime in both international and non-international armed conflicts, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law ...
... Under the legislation of many States, it is an offence to attack personnel and objects involved in a peacekeeping mission. No official contrary practice was found. Attacks against peacekeeping personnel and objects have generally been condemned by States. They have also been condemned by the United Nations and other international organisations. Some of these condemnations refer to the attacks as criminal ...
This rule applies only to peacekeeping forces, whether established by the United Nations or by a regional organisation, as long as they are entitled to the protection given to civilians and, as a result, excludes forces engaged in peace-enforcement operations who are considered as combatants bound to respect international humanitarian law.”
COMPLAINTS
168. The applicant complained that the investigation into her son’s death had been neither effective nor capable of leading to the prosecution of any individual. She relied on Articles 6 and 13 of the Convention.
THE LAW
169. The Court reiterates that, by virtue of the jura novit curia principle, it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018).
170. In the present case, when notice of the application was given to the Government, the parties were asked to submit observations under the procedural aspect of Article 2 of the Convention. As the essence of the applicant’s complaint is that there was no effective investigation into her son’s death and that those responsible for his death were not prosecuted, the Court considers it appropriate to examine the complaint under the procedural aspect of Article 2 (see, for example, Fonseca Mendes v. Spain (dec.), no. 43991/02, 1 February 2005). The relevant part of that provision reads as follows:
Article 2
“1. Everyone’s right to life shall be protected by law ....”
The parties’ argumentsThe Government171. The Government contended that, according to the Court’s case-law, jurisdiction was essentially territorial, which meant that extraterritorial jurisdiction was exceptional. In other words, the responsibility of the respondent State should only be extended to where it could effectively exercise its powers, not beyond. In the present case, neither Spain nor the UN had been responsible for carrying out any military action in the territory of Lebanon. On the contrary, the damage had been caused by an agent outside Spain’s control (namely the Israeli army) acting from a different national territory (Israel). There had been no control over the territory in which the action had taken place, nor had it been produced by the respondent State’s agent, nor had there been a subordinate local administration to which the facts might be imputable.
172. The Government submitted that, according to the Court’s case-law (Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, 29 January 2019, §§ 181 and 183, with references cited therein), the obligation to investigate when the victim had the nationality of a State party but the death occurred outside the territory of that State rested solely with the State where the events had taken place. In the present case, that was Lebanon (where the death had occurred) or Israel (where the action that had resulted in the death had originated).
173. According to the Government, only the finding of a “special feature” justified the extension of Spanish jurisdiction in the present case. In that regard, the Court had previously stated that the mere nationality of the deceased was not a “special feature” which necessarily gave rise to a jurisdictional link with the respondent State for the purposes of Article 1 of the Convention (Rantsev v. Cyprus and Russia, no. 25965/04, § 244, ECHR 2010 (extracts), and Emin and Others v. Cyprus, Greece and the United Kingdom (dec.), nos. 59623/08 and 6 others, 3 June 2010). In the present case, the mere fact that the deceased had been a Spanish national did not therefore give rise to the emergence of jurisdiction under Article 1 of the Convention in conjunction with Article 2 under its procedural limb.
174. As to whether the Spanish courts had “institute[d] their own criminal investigation or proceedings concerning a death which ha[d] occurred outside the jurisdiction of that State” (Güzelyurtlu and Others, cited above, §§ 188‑89), the Government argued that the military judge and the central investigating judge had acted only to determine whether there was jurisdiction under domestic law. This investigative action prior to assuming jurisdiction could not amount to an implicit act of recognition of jurisdiction. After an exhaustive investigation, both judges had concluded that, in accordance with Spanish law, they lacked jurisdiction for the investigation and prosecution of the acts at issue and that the proceedings were therefore concluded. In particular, the ordinary criminal judge had concluded that the alleged crimes committed abroad in the context of an armed conflict were not among those subject to universal jurisdiction under Spanish procedural law (terrorism or intentional attack on Spanish officials), while taking into account the response given by the Israeli authorities to the request for international assistance submitted by the Spanish courts.
175. The Government further contended that the effective investigation carried out by the Israeli authorities into the events proved that Spain had lacked jurisdiction. In the present factual scenario, the respondent State had had no means of enforcing its criminal jurisdiction; the validity of its Criminal Code on foreign territory could not be imposed, the events could not be directly investigated, the alleged perpetrator could not be coercively compelled to appear before its courts and, in short, the respondent State could not enforce any sentence that might be imposed. In this connection, the Government asked the Court to take into account the fact that prosecution in absentia was not legally possible in Spain.
The applicant176. The applicant argued that the domestic courts had not been exempted from exercising their jurisdiction. The investigation carried out by the IDF should not have been assimilated to an investigation conducted by a judicial body. The lack of independency and impartiality of a body of a military nature impaired the reliability of its conclusions. It could not therefore be concluded that Israel had exercised its jurisdiction in an effective manner, as argued by the Government.
177. Moreover, the applicant stressed that domestic courts should not have ruled out the intentional nature of the acts, without first conducting a more detailed and effective investigation into the facts of the case and by simply relying on a report submitted by a non-independent authority.
The Court’s assessmentAs to the applicable principles178. In its judgment in Güzelyurtlu and Others (cited above), the Court set out the principles concerning the existence of a “jurisdictional link” for the purposes of Article 1 of the Convention in cases where the death occurred outside the territory of the Contracting State in respect of which the procedural obligation under Article 2 of the Convention was said to arise. After summarising the relevant case-law up to that point, the Court held:
“(b) The Court’s approach
188. In the light of the above-mentioned case-law it appears that if the investigative or judicial authorities of a Contracting State institute their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, by virtue of their domestic law (e.g. under provisions on universal jurisdiction or on the basis of the active or passive personality principle), the institution of that investigation or those proceedings is sufficient to establish a jurisdictional link for the purposes of Article 1 between that State and the victim’s relatives who later bring proceedings before the Court (see, mutatis mutandis, Markovic and Others, cited above, §§ 54-55).
189. The Court would emphasise that this approach is also in line with the nature of the procedural obligation to carry out an effective investigation under Article 2, which has evolved into a separate and autonomous obligation, albeit triggered by acts in relation to the substantive aspects of that provision (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009, and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 132, ECHR 2013). In this sense it can be considered to be a detachable obligation arising out of Article 2 and capable of binding the State even when the death occurred outside its jurisdiction (see, mutatis mutandis, Šilih, § 159, in relation to the compatibility ratione temporis).
190. Where no investigation or proceedings have been instituted in a Contracting State, according to its domestic law, in respect of a death which has occurred outside its jurisdiction, the Court will have to determine whether a jurisdictional link can, in any event, be established for the procedural obligation imposed by Article 2 to come into effect in respect of that State. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, “special features” in a given case will justify departure from this approach, according to the principles developed in Rantsev, §§ 243-44. However, the Court does not consider that it has to define in abstracto which “special features” trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2, since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other.”
179. Applying those principles to the case at hand, the Court went on to find that a “jurisdictional link” between the applicants, who had complained under the procedural limb of Article 2 about their relatives’ deaths in the Cypriot-Government controlled part of Cyprus, and Turkey, was established on two grounds, each of which would have sufficed in itself to establish such a jurisdictional link within the scope of that case (ibid., §§ 191-96). A jurisdictional link was established, first, because the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) had instituted their own criminal investigation into the murder of the applicants’ relatives, which gave the “TRNC” courts criminal jurisdiction over the individuals who had committed the crimes wherever they were to be found on the whole island of Cyprus, and which accordingly engaged Turkey’s responsibility under the Convention. A jurisdictional link was also established because there were two special features related to the situation in Cyprus: (i) the northern part of Cyprus was under the effective control of Turkey for the purposes of the Convention; and (ii) the presence of the murder suspects in the territory controlled by Turkey had been known to the Turkish and “TRNC” authorities and prevented Cyprus from fulfilling its Convention obligations.
180. More recently, in Georgia v. Russia (II) ([GC], no. 38263/08, 21 January 2021), the Court, applying the principles set out in the Güzelyurtlu and Others judgment, held that the Russian Federation’s jurisdiction was established in respect of the complaint under the procedural limb of Article 2 of the Convention, even in respect of deaths which had taken place during the active phase of the hostilities and did not fall within the jurisdiction of the Russian Federation with respect to the substantive limb of Article 2. The Court had regard to the following “special features” of the case: the Russian Federation had an obligation to investigate the events at issue in accordance with the relevant rules of international humanitarian law and domestic law; it had established “effective control” over the territories in question shortly after the hostilities; and all the potential suspects were located either in the Russian Federation or in territories under its control, therefore preventing Georgia from carrying out an adequate and effective investigation into the allegations (ibid., §§ 329-32).
181. In Hanan v. Germany ([GC], no. 4871/16, 16 February 2021), the Court considered that the principle established in Güzelyurtlu and Others ‑ that the institution of a domestic criminal investigation or proceedings concerning deaths occurring outside the jurisdiction ratione loci of a State and not within the exercise of its extraterritorial jurisdiction was in itself sufficient to establish a jurisdictional link between that State and the victim’s relatives – did not apply to the factual scenario at issue. The Court referred to the fact that the deaths investigated by the German authorities had occurred in the context of an extraterritorial military operation within the framework of a mandate given by the United Nations Security Council acting under Chapter VII of the United Nations Charter, outside the territory of the Contracting States of the Convention (ibid., § 135). However, reiterating that even where no investigation or proceedings had been instituted in a Contracting State, the “special features” of a case could establish a jurisdictional link bringing the procedural obligation imposed by Article 2 into effect (see Güzelyurtlu and Others, cited above, § 190), the Court considered that this also applied in respect of extraterritorial situations outside the legal space of the Convention, as well as in respect of events occurring during the active hostilities phase of an armed conflict (see Hanan, cited above, § 136, with reference to Georgia v. Russia (II), cited above, §§ 329‑32).
182. The Court went on to find the following special features in the Hanan case: (i) Germany was obliged under customary international humanitarian law to investigate the air strike at issue; (ii) the Afghan authorities were, for legal reasons, prevented from instituting a criminal investigation (under the ISAF Status of Forces Agreement, the troop-contributing States had exclusive jurisdiction over personnel contributed to ISAF in respect of any criminal or disciplinary offences on the territory of Afghanistan); and (iii) the German prosecution authorities were also obliged under domestic law to institute a criminal investigation (see Hanan, cited above, §§ 137‑40). In sum, the fact that Germany retained exclusive jurisdiction over its troops with respect to serious crimes which, moreover, it was obliged to investigate under international and domestic law, constituted “special features” which, combined, triggered the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2 of the Convention (ibid., § 142). The Court emphasised, however, that it did not follow from the above that the substantive act fell within the jurisdiction of the Contracting State or that the act in question was attributable to that State (ibid., § 143).
Application of these principles to the present case183. The Court observes at the outset that the present case differs from Hanan in that the death at issue was not allegedly inflicted by members of the armed forces of the respondent State, but by the armed forces of a third State which is not a Contracting State to the Convention (compare and contrast Hanan, cited above; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011; and Jaloud v. the Netherlands [GC], no. 47708/08, ECHR 2014). The death occurred in the context of a peacekeeping mission established by the United Nations Security Council which includes monitoring the cessation of hostilities in the area and supporting the Lebanese armed forces as they deploy throughout southern Lebanon, including along the Blue Line (see paragraphs 149-54 above). These operations are indeed covered by the scope of Convention on the Safety of United Nations and Associated Personnel (see paragraph 163 above), which explicitly excludes operations under Chapter VII of the UN Charter in which any of the personnel are engaged as combatants against organised armed forces (see paragraph 164 above). Moreover, the factual and legal situation in the present case differs in several crucial respects from the Hanan case, as far as the Court’s approach to the existence of a “jurisdictional link” for the purposes of Article 1 of the Convention is concerned (see below).
184. Additionally, although under the Memorandum of Understanding between the UN and Spain in relation to UNIFIL, Spain retained exclusive jurisdiction over personnel contributed to UNIFIL in respect of any crimes or offences that might be committed by them while they were assigned to the military component of UNIFIL (see paragraph 146 above), this Memorandum does not refer to situations where such personnel are the victims of any crimes or offences committed while on duty.
185. The Court further considers neither applicable to the present case the principle according to which the institution of a domestic criminal investigation or proceedings concerning deaths occurring outside the jurisdiction ratione loci of the respondent State and not within the exercise of its extraterritorial jurisdiction – as established in Güzelyurtlu and Others – may trigger jurisdiction. It notes in this connection that although both the military judge and the central investigating judge opened a criminal preliminary investigation into the death of the applicant’s son in Lebanon, under domestic law jurisdiction could have been asserted only if the domestic courts were able to establish the existence of intent in the commission of the act which had caused the death of Lance Corporal Soria Toledo.
186. The Court notes in this regard that once the military judge transferred the case to the ordinary criminal courts and the applicant formally lodged a criminal complaint, section 23(3)(g) of the Organic Law on the Judiciary obliged the Spanish criminal courts to investigate and prosecute the crime of an attack (atentado) on the Spanish authorities or public servants (punishable under Article 550 of the Criminal Code) committed outside the national territory by Spanish nationals or foreigners (see paragraphs 125 and 128 above). This was one of the two criminal offences that the applicant claimed before the ordinary courts to be applicable to the incident, the other being terrorism. While the central investigating judge considered that it was evident that the incident was not an act of terrorism but an act of war, the relevant decision stated that “one could consider the objective existence of a crime of an attack on a Spanish public servant” (see paragraph 105 above). The judge noted however that such a crime would only be punishable under the Criminal Code when committed intentionally (dolo), which was not the case in the proceedings under examination since the act was, in his view, an act of negligence. This reasoning was upheld on appeal by the Audiencia Nacional, which noted the lack of information proving that the projectile had been directed against the multinational force and a specific component within it. Therefore, the national courts concluded that the facts did not give rise to Spain’s extra‑territorial criminal jurisdiction.
187. The Court refers to the Government’s argument concerning the scientific tests carried out (forensic evidence, explosives detection, and others), the evidence collected from the scene and the multiple witnesses who had been questioned. In addition, a detailed investigation report by UNIFIL had been requested and Spanish military personnel had also been sent to Israel to learn first-hand about the investigations carried out by the Israeli authorities themselves.
188. The Court further cannot disregard that both the military judge and the central investigating judge acted of their own motion, starting the proceedings on the same day of the events, even before the applicant lodged a complaint. Those proceedings were not confined to determination whether an award of compensation was justified, but included the determination of the specific origin of the artillery shell, the context in which it had been launched and the forces responsible for it, responsibility having been assumed by the State of Israel itself.
189. Separate investigations were carried out by the UN, the Israeli Army and the Spanish courts, acting on their own behalf. Their outcome was subject to parliamentary scrutiny when the Minister of Defence addressed the Congress of Deputies and gave full details of the results of such investigations.
190. In the light of the foregoing, the Court considers that, in the context of their preliminary investigation, there is nothing to suggest that the Spanish authorities failed in establishing whether there was Spanish jurisdiction including securing the relevant physical or forensic evidence or taking statements from the relevant witnesses in the aftermath of the incident. In this regard, the official report initiated on the same day of the events by the Spanish military authorities included photographic evidence and witness statements from the military officers who had been at UNIFIL position 4-28 at the time of the incident (see paragraphs 24 and 85 above). This evidence was later submitted, together with the concluding report drawn up on 6 February 2015, to the military judge and the central investigating judge in Madrid (see paragraph 95 above). The Court is also mindful of the restrictions on Spain’s legal powers to undertake further investigative measures on the ground in Lebanon, and that the death to be investigated occurred in the context of an exchange of fire between Israel and Hezbollah in southern Lebanon.
191. As far as the existence of “special features” is concerned, although the Court has found them even where no investigation or proceedings had been instituted in a Contracting State in respect of a death occurring outside its jurisdiction, the Court agrees with the Government that the mere nationality of the deceased does not amount to a special feature triggering the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2. It reiterates in this regard that Article 2 of the Convention does not require Contracting States’ criminal laws to provide for universal jurisdiction in cases involving the death of one of their nationals (see Rantsev, § 244, Emin and Others (dec.), Güzelyurtlu and Others, §§ 183‑184, cited above).
192. In the present case, the Court notes that the observation tower at position 4-28 where the incident occurred while the applicant’s son was on duty as a sentry was located in Sector East of UNIFIL, a sector led by Spain and commanded at the time by Spanish General/Chief R.O. However, this area is situated in Lebanon and it is neither under the effective control of Spain nor under its flag.
193. In this regard, the Court observes that, unlike in Hanan (§ 137), in the present case Spain could not be considered to be bound by any obligation of international humanitarian law to investigate the incident, as the primary responsibility for such an investigation laid on Israel, a State not party to the Convention.
194. The Court considers, secondly, that the Israeli authorities were not prevented, due to any legal or practical reasons, from themselves instituting a proper investigation, which excluded in principle the risk of a situation of impunity (see, a contrario, Hanan, § 138, Güzelyurtlu and Others, § 194 and Georgia v. Russia (II), § 331, cited above).
195. Finally, the Court takes note that there is no indication from the facts of the present case that could lead to the conclusion that Spain failed to cooperate with any Israeli investigation, in the sphere of cooperation in criminal matters and in conformity with the requirements of the procedural limb of Article 2 of the Convention (see, mutatis mutandis, Romeo Castaño v. Belgium, no. 8351/17, §§ 41 and 85, 9 July 2019).
196. In view of the above, the Court concludes that it has not identified any special features capable of bringing the facts of the present case under the jurisdiction of Spain for the purposes of Article 1 of the Convention. Moreover, the domestic decisions determining the absence of extraterritorial jurisdiction to carry on with the criminal process in application of Article 550 of the Criminal Code cannot be considered arbitrary or manifestly unreasonable.
Conclusion197. The Court concludes that the application is therefore incompatible ratione personae and ratione loci with the provisions of the Convention and, as such, it must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 28 April 2022.
Milan Blaško Georges Ravarani
Registrar President
[1] The President of the Section also accepted the Government‘s request to limit access to these documents to the applicant’s lawyer, allowing him only to consult such documents in person upon prior request to the National Defence High Command in Madrid.