CEDH · CASELAW;CLIN;ENG — 25 juillet 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary July 2024 Couso Permuy v. Spain - 2327/20 Judgment 25.7.2024 [Section V] Article 6 Civil proceedings Article 6-1 Access to court Civil rights and obligations Discontinuation of criminal proceedings investigating the killing of a Spanish journalist in Iraq for lack of jurisdiction following a legislative reform restricting the Spanish courts’ universal jurisdiction: no violation Facts – In 2003, the applicant’s brother, a camera operator of Spanish nationality, was killed by a tank shot directed at his hotel by the US military in Baghdad while covering the military invasion of Iraq. Criminal proceedings, incorporating a civil action for compensation, were initiated that year in Spain following a criminal complaint against three US servicemen lodged by the applicant and other relatives of the victim, all of whom intervened as civil parties in those proceedings. At the time, Section   23(4) of the Institutional Law no.   6/1985 on the Judiciary established a regime of absolute and unrestricted universal jurisdiction for serious crimes committed outside Spanish territory. In 2009 that provision was amended restricting the universal jurisdiction of the Spanish courts for such offences by requiring some connection or link to Spain. As the victim’s Spanish nationality was considered a sufficient link, the present proceedings continued. In March 2014, another legislative reform - Institutional Law 1/2014 - introduced new criteria, which only allowed the prosecution of alleged war crimes committed outside Spain by foreign nationals if the latter were on Spanish territory: the victim’s nationality no longer constituted a sufficient link. The new law incorporated a transition provision which established that pending cases, at the time of its entry into effect, would be provisionally discontinued until the new criteria were met. As the proceedings in the present case did not meet those criteria, the Spanish courts found that they no longer had jurisdiction to continue the investigation into the applicant’s brother’s killing. The proceedings were thus discontinued. Law – Article   6 §   1: (a) Applicability – The applicant had had the right, recognised under Spanish law, not only to become a private accusing party within the criminal proceedings which had investigated his brother’s killing, but to obtain civil compensation from the perpetrators if a criminal offence had been established and a conviction secured. Those findings applied whether the Spanish courts’ jurisdiction was established based on the commission of a crime inside Spain’s territory or based on the exercise of universal jurisdiction by Spanish criminal courts for crimes committed outside its territory. The Court thus found that there had been a genuine and serious dispute over a civil right. Conclusion : Article   6 §   1 applicable (unanimously). (b) Merits – (i) Existence of a restriction on the applicant’s right of access to a court – The proceedings in the present case had been discontinued, including the examination of the applicant’s allegations as a civil party. The legal basis for that restriction had had been the new Institutional Law 1/2014. (ii) Whether the restriction pursued a legitimate aim – The Court had already recognised in its case-law that it was not unreasonable for a State to require the existence of some links to that State in order for its universal civil jurisdiction, to prosecute some offences, to be recognised. According to the new law’s explanatory memorandum the reform had been aimed at clearly establishing – in line with the principle of legality and to reinforce legal certainty – the cases in respect of which the Spanish courts had jurisdiction to investigate and examine crimes committed outside the territory in which Spain exercised its sovereignty. In that regard, the Court recognised that extraterritorial jurisdiction was of an exceptional nature and needed to be carefully established The Government had also pointed to the risk of overburdening the domestic courts that would have resulted from an abuse of litigation on the basis of an “absolute” model of unrestricted universal jurisdiction regardless of whether or not any connection with Spain existed, as well to the practical difficulties the courts would face in adducing evidence. Further, the Constitutional Court, when dismissing the applicant’s amparo appeal, had concluded that the need for the alleged authors of crimes committed abroad to be physically on Spanish territory in order to recognise Spain’s jurisdiction in respect of such crimes had been aimed at securing the effectiveness of criminal proceedings. The above reasons taken together could be regarded as constituting an overriding reason of public interest. (iii) Whether the restriction can be considered proportionate – The scope of the State’s margin of appreciation, in regulating the right of access to a court in cases such as the present one, depended, inter alia , on the relevant international law. States which, like Spain, had conferred upon their courts jurisdiction to hear claims for reparation for war crimes or other international crimes, gave effect to the broad consensus in the international community on the existence of the right of the victims to appropriate and effective reparation – including when their claims were based on acts committed outside the geographical boundaries of the State in question. The 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) to which Spain, Iraq and the United States were parties, established an imperative model of universal jurisdiction, which imposed on any signatory State the obligation to locate war criminals when they were in their territory, and to bring them before their courts to prosecute and try them based on the nature of the crime, regardless of the place where the events had occurred and regardless of the defendants’ nationality. That mandatory jurisdiction however did not extend to an obligation for States to search for war criminals outside their territory, and to exercise jurisdiction to prosecute and try them, when there were no elements of connection. The Court stated that it was not in any way determining how the obligations established in the relevant provisions of the Fourth Geneva Convention should be enacted in national legislation, or that they should be extended beyond the territorial borders of the States Parties. Nor was the Court implying that an unrestricted model of universal jurisdiction was the most adequate legal regime to investigate prosecute and try international crimes. While the Court recognised that the existence of a duty to investigate or to hand over to another High Contracting Party for the latter to do so under international law reflected the gravity of the alleged offence, it did not flow from international law or the Convention that Contracting States were obliged to acquire universal civil jurisdiction. In the present case, the investigation had continued for some time after the entry into force of the 2014 legislation as the investigating judge had initially considered that the new provisions contravened the Fourth Geneva Convention. That decision had been confirmed by the plenary of the criminal chamber of the Audiencia Nacional, as well as by the Supreme Court. Thus, it could not be held that the intervention of the legislature – merely because the law had applied to pending cases – had rendered any continuation of the proceedings futile Furthermore, during the period between 2003 and 2015 in which Spain had had jurisdiction to investigate the case, that jurisdiction had been effectively exercised. The applicant had been able to bring his complaints before the courts, many pieces of evidence had been gathered by the investigating judge at his request and the Spanish judicial authorities had conducted a very thorough criminal investigation in order to establish the facts necessary to charge and prosecute the alleged perpetrators of the killing and to find out whether that crime had been investigated and could be prosecuted in the United States or in Iraq. The domestic courts had also requested judicial cooperation from the Iraqi authorities, which had not provided specific information on whether there had been ongoing proceedings on the events in question. A judicial commission had even carried out an on-site visit to the scene of the shooting in Baghdad. The investigation stage had concluded that it would, in any event, not have been possible to proceed to trial because the US authorities would not surrender the accused servicemen and Spanish law did not allow trials in absentia . The case had only been discontinued after the Spanish Supreme Court’s first judgment in other proceedings, interpreting the new requirements introduced by Institutional Law   1/2014 and its effects on pending cases which had been initiated under previous regulations. In that court’s view, the new wording of section 23(4) and the transition provision of Institutional Law   1/2014 had meant that the jurisdiction of the Spanish courts could be asserted only if the alleged perpetrators were present in Spain: the nationality of the victim was no longer sufficient to establish a jurisdictional link, and that applied to pending cases. The Court saw no reason to depart from the domestic courts’ interpretation of the applicable law in respect of the facts of the present case and considered that there was nothing arbitrary or manifestly unreasonable in their conclusion on their lack of jurisdiction. That interpretation had corresponded to the purpose of that law (to limit litigation based on universal jurisdiction to those cases where there was a sufficient link to Spain) and it had been within the respondent State’s margin of appreciation. Moreover, the Spanish courts had discontinued the proceedings only temporarily, without ruling out the possibility of reopening them if the defendants came under Spanish territory and therefore Spanish jurisdiction. Lastly, the applicant had complained about his right of access to a court from the perspective of a civil party to the criminal proceedings and had not argued that there had been any obstacles which would have prevented him from bringing a separate civil action outside the criminal proceedings. Accordingly, the finding of the Spanish courts, that they had no jurisdiction to hear the civil action that had been a part of the criminal action brought by the applicant in 2003 had not been disproportionate to the aims pursued. That conclusion did not call into question the broad consensus within the international community regarding the right of victims of international crimes (as defined, inter alia , in the Geneva Conventions of 1949 and the Rome Statute of the International Criminal Court of 17   July 1998 ) to obtain appropriate and effective redress or the fact that States were encouraged to give effect to that right by endowing their courts with jurisdiction to examine such claims for compensation (including where such claims were based on events that had occurred outside their geographical frontiers). In that respect, the efforts by States to render access to a court as effective as possible for those seeking compensation for international crimes were commendable. However, it did not seem unreasonable for a State, that had established universal jurisdiction, to make its exercise conditional on the existence of certain connecting factors or jurisdictional links with that State. Conclusion : no violation (unanimously). (See also Naït-Liman v.   Switzerland [GC], 51357/07, 15   March 2018, Legal Summary ; Hussein and Others v.   Belgium , 45187/12, 16   March 2021, Legal Summary ; M.M. v.   France (dec.), 13303/21 , 16   April 2024; Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 ; Geneva Conventions of 1949 ; Rome Statute of the International Criminal Court of 17   July 1998 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .