CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 20 novembre 2014

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display:inline-block } .sD1313BC6 { margin-top:12pt; margin-left:51.85pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sA3C7879F { width:189.29pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sE3540691 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:18pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       GRAND CHAMBER           CASE OF JALOUD v. THE NETHERLANDS   (Application no. 47708/08)                     JUDGMENT       STRASBOURG       20 November 2014                   This judgment is final but may be subject to editorial revision. ABBREVIATIONS AND ACRONYMS PROCEDURE THE FACTS A.     The circumstances of the case 1.     The death of Mr Azhar Sabah Jaloud 2.     The investigation 3.     Domestic proceedings B.     Weapons used in the incident 1.     Diemaco C7A1 2.     Kalashnikov AK-47 C.     The Netherlands military presence in Iraq 1.     General background 2.     The letter to the Lower House of Parliament 3.     Royal Military Constabulary presence in Iraq D.     Instructions to Netherlands SFIR personnel 1.     The aide-mémoire for SFIR commanders 2.     The SFIR soldier’s card E.     The Royal Military Constabulary F.     The Military Chamber of the Arnhem Court of Appeal G.     Relevant domestic law and procedure 1.     The Constitution of the Kingdom of the Netherlands 2.     The Criminal Code (Wetboek van Strafrecht) 3.     The Military Criminal Code (Wetboek van Militair Strafrecht) 4.     The Military Criminal Procedure Act (Wet Militaire Strafrechtspraak) 5.     The Code of Criminal Procedure (Wetboek van Strafvordering) H.     Relevant domestic case-law 1.     The Eric O. case 2.     The Mustafić and Nuhanović cases I.     Other domestic documents 1.     Evaluation report on the application of military criminal procedure in operations abroad 2.     The report of the Van den Berg Committee 3.     The final evaluation report J.     Relevant international law 1.     The Hague Regulations 2.     The Fourth Geneva Convention 3.     United Nations Security Council Resolutions 4.     Case-law of the International Court of Justice 5.     The International Law Commission’s Articles on State Responsibility K.     Documents relevant to the occupation of Iraq 1.     Coalition Provisional Authority Order no. 28 2.     The MND (SE) (Multinational Division, South East) Memorandum of Understanding 3.     The MND (C-S) (Multinational Division, Central-South) Memorandum of Understanding COMPLAINTS THE LAW I.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION A.     Admissibility 1.     The Government’s preliminary objection 2.     Conclusion on admissibility B.     Jurisdiction 1.     Arguments before the Court 2.     The Court’s assessment C.     Alleged breach of the investigative duty under Article 2 1.     Arguments before the Court 2.     The Court’s assessment II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION A.     Damage B.     Costs and expenses C.     Default interest CONCURRING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGE RAIMONDI JOINT CONCURRING OPINION OF JUDGES CASADEVALL, BERRO-LEFEVRE, ŠIKUTA, HIRVELÄ, LÓPEZ GUERRA, SAJÓ AND SILVIS CONCURRING OPINION OF JUDGE MOTOC   ABBREVIATIONS AND ACRONYMS AOR Area of operational responsibility CD-ROM Compact disc, read-only memory CENTCOM American Central Command CFLCC Coalition Forces Land Component Commander CPA Coalition Provisional Authority DARIO Draft Articles on the Responsibility of International Organisations (International Law Commission) DR European Commission of Human Rights, Decisions and Reports ECHR European Court of Human Rights, Reports of Judgments and Decisions (1999-present) EUR Euro (currency) GC Grand Chamber GST Government support teams I.C.J. International Court of Justice ICDC Iraqi Civil Defence Corps LJN Landelijk Jurisprudentienummer (National Jurisprudence Number, Netherlands) LOC Lines of communication loc. cit. loco citato (in the place cited) MND (C-S) Multinational Division, Central-South MND (SE) Multinational Division, South-East MoU, MOU Memorandum of Understanding NATO North Atlantic Treaty Organization PJCC Provisional Joint Coordination Center (emergency and local governmental services in Iraq) POD Port of disembarkation Reports European Court of Human Rights, Reports of Judgments and Decisions (1996-1998) RoE, ROE Rules of Engagement SFIR Stabilization Force in Iraq UK United Kingdom of Great Britain and Northern Ireland UNPROFOR United Nations Protection Force (Bosnia and Herzegovina 1992-1995) UNSC United Nations Security Council UNSCR United Nations Security Council Resolution US, USA United States of America VCP Vehicle checkpoint     In the case of Jaloud v. the Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President,   Josep Casadevall,   Guido Raimondi,   Ineta Ziemele,   Mark Villiger,   Isabelle Berro-Lefèvre,   Elisabeth Steiner,   Alvina Gyulumyan,   Ján Šikuta,   Päivi Hirvelä,   Luis López Guerra,   András Sajó,   Zdravka Kalaydjieva,   Aleš Pejchal,   Johannes Silvis,   Valeriu Griţco,   Iulia Antoanella Motoc, judges, and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 19 February 2014 and on 10 September 2014, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 47708/08) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Sabah Jaloud (“the applicant”), on 6 October 2008. 2.     The applicant was represented by Ms L. Zegveld and Mr A.W.   Eikelboom, lawyers practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that Article 2 of the Convention had been violated in that the investigation into the death of his son, Mr   Azhar Sabah Jaloud, had been inadequate. 4.     On 6 December 2011 the application was communicated to the Government. 5.     On 9 July 2013 a Chamber of the Third Section, composed of Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Kristina Pardalos, Johannes Silvis, judges, and also of Santiago Quesada, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court). 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. Subsequently Elisabeth Steiner, substitute judge, replaced Judge Pardalos, who was unable to take part in the further consideration of the case. 7.     The applicant and the Government each filed written observations. In addition, third-party comments were received from the Government of the United Kingdom, which had been given leave by the President to take part in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 2). The intervening Government were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 19 February 2014 (Rule 59 § 3).   There appeared before the Court:   (a)     for the respondent Government Mr   R. Böcker , Ministry of Foreign Affairs,   Agent ,   Dr   M . Kuijer , Ministry of Security and Justice,   Adviser ,   Mr   B. v an Hoek , Public Prosecution Service,   Adviser ,   Commander H . Warnar , Ministry of Defence, Military staff   Adviser ;     (b)     for the applicant Ms   L. Zegveld ,   Counsel ,   Mr   A.W. Eikelboom ,   Counsel ;   (c)     for the Third Party-State: the United Kingdom Government Ms   R. Tomlinson , Foreign & Commonwealth Office,   Agent ,   Mr   J. Eadie QC ,   Counsel ,   Mr   J. Benson , Foreign & Commonwealth Office,   Adviser ,   Ms   M . Addis , Foreign & Commonwealth Office,   Observer .   The Court heard addresses by Mr Böcker, Mr Eikelboom, Ms Zegveld and Mr Eadie, and also their replies to its questions. THE FACTS 9.     The applicant, Mr Sabah Jaloud, is an Iraqi national who was born in 1943 and lives in An-Nasiryah, Iraq. He is the father of the late Mr Azhar Sabah Jaloud, who died on 21 April 2004 at the age of twenty-nine. A.     The circumstances of the case 1.     The death of Mr Azhar Sabah Jaloud 10.     On 21 April 2004, at around 2.12 a.m., an unknown car approached a vehicle checkpoint (VCP) named “B-13” on the main supply route “Jackson” north of the town of Ar Rumaytah, in the province of Al ‑ Muthanna, south-eastern Iraq. The car slowed down and turned. From inside the car shots were fired at the personnel guarding the VCP, all of them members of the Iraqi Civil Defence Corps (ICDC). The guards returned fire. No one was hit; the car drove off and disappeared into the night. 11.     Called by the checkpoint commander, ICDC Sergeant Hussam Saad, a patrol of six Netherlands soldiers led by Lieutenant A. arrived on the scene at around 2.30 a.m. 12.     Some fifteen minutes later a Mercedes car approached the VCP at speed. It hit one of several barrels which had been set out in the middle of the road to form the checkpoint, but continued to advance. Shots were fired at the car: Lieutenant A. fired 28 rounds from a Diemaco assault rifle; shots may also have been fired by one or more ICDC personnel armed with Kalashnikov AK-47 rifles (see paragraphs 21 and 49-52 below). At this point the driver stopped the car. 13.     The applicant’s son, Mr Azhar Sabah Jaloud, was in the front passenger seat of the car. He had been hit in several places, including the chest. Netherlands soldiers removed him from the car and attempted to administer first aid. Despite this, Mr Azhar Sabah Jaloud died. He was declared dead one hour after the incident. 14.     The body was subjected to X-ray examination. The radiographs show objects identified as metallic inside the chest and elsewhere. 15.     An autopsy was performed by an Iraqi physician, who drew up a brief report in Arabic. Metal objects identifiable as bullet fragments were found in the body. 16.     It was not determined by whom the bullet or bullets had been fired, nor from what weapon. 2.     The investigation a.     Beginning of the investigation 17.     An official record by Sergeant First Class ( wachtmeester 1e klasse ) Schellingerhout of the Royal Military Constabulary ( Koninklijke marechaussee ), As-Samawah detachment, shows that a telephone call was received at 3.25 a.m. from the batallion operations room, reporting the shooting incident. A car had crashed into the VCP. Shots had been fired by Netherlands and Iraqi armed forces and the car’s passenger had been wounded. He had been taken to hospital. The Royal Military Constabulary was asked to investigate. 18.     A seven-person Royal Military Constabulary duty group ( piketgroep ), accompanied by an interpreter, had left at 3.50 a.m. and arrived on the scene at around 4.50.a.m. Royal Military Constabulary Sergeants First Class Broekman and Van Laar had begun securing evidence at 5 a.m. Also at 5   a.m., the Royal Military Constabulary staff in The Hague and the public prosecutor of the Regional Court ( rechtbank ) of Arnhem were informed of the incident. b.     Seizure of the body, the car and the personal weapons of Lieutenant A. and ICDC Sergeant Hussam Saad 19.     The body was seized by Royal Military Constabulary Warrant Officer ( adjudant-onderofficier ) Kortman at 7.30 a.m. and transported to the mobile hospital at Camp Smitty. At 11.45 a.m., after permission had been given in writing by a local court, the body was transported to the General Hospital in As-Samawah. The post-mortem examination was carried out in the absence of any police witness by an Iraqi physician. 20.     The Mercedes car was seized at around 5.10 a.m. by Warrant Officer Kortman and later towed to Camp Smitty. 21.     At around 7.50 a.m. Sergeant First Class Schellingerhout seized Sergeant Hussam Saad’s Kalashnikov AK-47 rifle; at around 11.55 a.m. he also seized Lieutenant A.’s Diemaco C7A1 rifle. Both weapons were later labelled and placed at the disposal of the Arnhem public prosecutor. c.     Statements taken down by Royal Military Constabulary officers 22.     The following statements were submitted to the investigating and judicial authorities in the domestic proceedings. i.     Mr Dawoud Joad Kathim 23.     On 21 April 2004, at around 5.05 a.m., Royal Military Constabulary Warrant Officer Mercx took a statement from the driver of the Mercedes car, Mr Dawoud Joad Kathim, with the aid of an interpreter. Mr Dawoud Joad Kathim admitted to having drunk two cans of beer, but no more, on the previous night, and did not consider himself to have been intoxicated. He stated that he had not noticed any checkpoint until it was too late to avoid hitting two barrels. It had been dark at the time, and there had been no lighting. To his complete surprise, his car had been fired at as he was driving through the checkpoint. His friend Mr Azhar Sabah Jaloud had been hit; Mr   Dawoud Joad Kathim had heard him say that he was dying. He wished to submit a complaint because the checkpoint had not been clearly marked. ii.     ICDC Sergeant Hussam Saad 24.     On 21 April 2004, at around 5.15 a.m., Royal Military Constabulary Sergeant First Class Weerdenburg took a statement from ICDC Sergeant Hussam Saad The latter stated that he had reported shooting from a car at around 2.10 a.m.; Lieutenant A. had arrived at approximately 2.30 a.m. Sergeant Hussam Saad had gone to look for spent cartridges with Lieutenant A., another Netherlands soldier and the interpreter. He had suddenly heard a bang and seen a car approaching from the direction of Ar   Ruyaythah. The car had continued to move forward, despite being ordered to stop. He had then heard shooting from the left side of the road. He had not, however, fired any rounds himself. iii.     Other ICDC personnel 25.     Sergeant First Class Weerdenburg next questioned the other Iraqi soldiers, but they provided no pertinent information. iv.     Mr Walied Abd Al Hussain Madjied 26.     On 21 April 2004, at around 7 a.m., Royal Military Constabulary Sergeant Klinkenberg took a statement from Mr Walied Abd Al Hussain Madjied, an interpreter working with the ICDC. The interpreter had been accompanying Lieutenant A.’s patrol between two checkpoints. After arriving at VCP B1.3 and being told about the first shooting incident by ICDC Sergeant Hussam Saad, he had joined Lieutenant A. and others in the search for spent cartridges. He had suddenly heard the sound of barrels falling over, turned around and seen a car approaching. He had shouted “stop, stop, stop” but the car had driven on. Across the road from where he was standing, a Netherlands soldier had fired at the car. After the car stopped, he had assisted its occupants by providing interpretation. The passenger’s left arm had been covered in blood and the driver had smelled of alcohol. v.     Sergeant Teunissen 27.     On 21 April 2004, at around 9.30 a.m., Royal Military Constabulary Sergeant First Class Van Laar and Sergeant Klinkenberg took a statement from Infantry Sergeant ( sergeant ) Teunissen. Arriving at VCP B1.3 at 2   a.m., he had been given information by the ICDC sergeant. Together with his lieutenant, the ICDC sergeant and the interpreter, he had gone up the road to look for spent cartridges. At a distance of approximately 100 metres from the VCP hut, he had turned around, startled by a sound. He had seen a car drive into the VCP at speed; when the car had passed the VCP, he had heard shooting from the VCP. The four of them had dived for cover. When the car had reached their level, shots had been fired from across the road, where the lieutenant was positioned. He had shouted “Stop firing”, but that had not been heard. When the firing stopped, the car had also stopped. The passenger had been bleeding from the lower body and the left shoulder. Sergeant Teunissen and Private Finkelnberg had removed him from the car, laid him on the ground and bandaged his wounds. He and Lieutenant A. had attempted to resuscitate the passenger until told by the doctor that there was no longer any point. vi.     Lieutenant A., first statement 28.     On 21 April 2004, at around 11.15 a.m., Royal Military Constabulary Sergeants First Class Broekman and Van Laar heard Lieutenant A. under caution. Lieutenant A. stated that he was responsible for monitoring two vehicle checkpoints, one of which was VCP B1.3 on the Jackson road north of Ar-Rumaythah. After the first shooting incident had been reported, he had arrived at VCP B1.3 at around 2.30 a.m.; he had been intending to reconnoitre the area on foot, together with Sergeant Teunissen and the ICDC sergeant. At around 2.45 a.m. he had been startled by a noise. Looking behind him, he had seen two blazing car headlights approaching. Shots had then been fired from the direction of the car; on hearing them, he had dived for cover on the verge of the road. He had been convinced that shots were being fired from inside the car. When the car had reached his level, he had cocked his weapon; when it had just passed, he had started to shoot at its rear. He had fired 28 cartridges in aimed fire. He had been responding to the danger arising from his having been fired at first. He had fired the entire contents of a magazine, 28 rounds; this had taken approximately seven seconds. The passenger being wounded, he and Sergeant Teunissen had attempted to resuscitate him until help arrived. By that time there had been no pulse. Shortly afterwards, the company commander had arrived; Lieutenant A. had briefed him. vii.     Private Finkelnberg 29.     On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Warrant Officer Kortman and Sergeant First Class Broekman took a statement from Private Finkelnberg. At 2   a.m. on 21 April 2004 he had arrived with Lieutenant A. and Sergeant Teunissen, among others, at VCP B1.4, where the ICDC sergeant reported to Lieutenant A. that there had been a shooting incident at VCP B1.3. The patrol had therefore gone to that checkpoint, arriving at 2.30 a.m. Lieutenant A., Sergeant Teunissen, the ICDC sergeant and the interpreter had gone up the road towards Hamza to look for spent cartridges. A dark-coloured motorcar had approached at high speed and driven past him through the checkpoint, hitting some barrels in the road. Through his image intensifier he had seen Lieutenant A., to the left of the road, going for cover; he had then seen muzzle flashes from several weapons on the left side of the road and heard shots from that direction. The firing was in single shots. At a certain moment he had seen the car stop. While the shots were being fired, he had heard Sergeant Teunissen shout “Stop firing”. He had gone up to the vehicle and cut the passenger’s clothes loose. While Sergeant Teunissen administered first aid, he had searched the car for weapons. He had found an icebox containing an almost empty bottle of alcoholic drink. He had then joined Sergeant Teunissen and Lieutenant A. in their attempts to resuscitate the passenger until the latter was declared dead. He was critical of Lieutenant A. for firing while his own troops were on the opposite side of the road and for firing so many rounds, and also of the ICDC for firing in the general direction of their own personnel. viii.     Cavalry Sergeant Quist 30.     On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Sergeant Major ( opperwachtmeester ) Wolfs and Sergeant First Class Van Laar took a statement from Cavalry Sergeant ( wachtmeester ) Quist. On 21   April 2004 at around 2 a.m. he had been at VCP B1.4 with Lieutenant A. and the other members of his patrol unit, which had been led by Sergeant Teunissen. There had been shooting at VCP B1.3 and they had gone there. Upon arrival, he had noticed no ICDC personnel manning the checkpoint, but had seen a group of people to the left of the road opposite the hut. After Cavalry Sergeant Quist had parked his vehicle, Lieutenant A., Sergeant Teunissen, the interpreter Walied and the ICDC sergeant had walked off north to look for spent cartridges. At a certain point, he had seen a car approaching at high speed from Ar-Rumaythah; when the car reached the checkpoint, it had hit some of the barrels or rocks placed there. He had heard automatic gunfire from where the ICDC members were, which had then stopped. There had been further firing approximately 100 metres distant from him, but he could not tell who was firing up ahead. He did think that there had been firing from a plurality of weapons. He had seen the vehicle stop 50 metres away. He had made a situation report. He had seen Lieutenant A. and Sergeant Teunissen trying to resuscitate the victim. ix.     Lieutenant A., second statement 31.     On 23 April 2004, at around 3.35 p.m., Royal Military Constabulary Sergeant First Class Broekman and Warrant Officer Kortman took a second statement from Lieutenant A. The latter stated that the very last time he had seen the ICDC sergeant the latter had been at the checkpoint, fiddling ( klungelen ) with his AK-47 rifle. Lieutenant A. had told the sergeant not to point the rifle at him. On the subject of the firing incident, he stated that as far as he remembered he had probably lain on a flat part of the road; he had not fired from a standing position. He had performed mouth-to-mouth resuscitation on the wounded passenger of the car and remembered him tasting of alcohol. The ICDC deputy company commander had given him a list of names of the ICDC personnel who had fired their weapons and the corresponding numbers of cartridges, and had asked for replacement ammunition. d.     Other investigation reports i.     Examination of the Mercedes car 32.     On 22 April 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Heijden examined the car seized by Warrant Officer Kortman the day before. It was a black Mercedes Benz 320 E AMG. It had black number plates with markings in Arabic script; these visibly covered white number plates bearing black letters in Latin script and numerals. The car had damage consistent with hitting foreign objects at speed. The rear window was shattered. Holes were found in the rear of the car, in the body on the right and left sides, and in the seats. Metal tips were found in various places; one, identified as a bullet fragment, had clearly passed through the passenger seat. The conclusion was that the car had been fired on from both the left and the right; from the left, with a weapon firing ammunition smaller than 6 mm calibre and, from the right, with a weapon firing ammunition larger than 6 mm calibre. The precise firing angles relative to the car could not, however, be determined. ii.     X-rays and photographs 33.     On 9 May 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Klinkenberg took receipt of a CD-ROM containing X-rays of Azhar Sabah Jaloud’s body. These showed fragments of metal in the left chest cavity, the left hip and the left lower arm. The X ‑ rays had been made by Warrant Officer Dalinga, X-ray technician at Camp Smitty, As-Samawah, Al-Muthanna province. 34.     The file contains photocopies of the above-mentioned X-rays and of photographs. They are accompanied by descriptions, contained in an official report by Warrant Officer Kortman. The photographs include pictures of a road and a checkpoint area, some taken by daylight, some apparently taken at night. Several of the photographs show cartridges lying on the ground, including some described as 7x39mm (as fired by the Kalashnikov AK-47 rifle) [1] , both spent and live, and a quantity of spent cartridges stated to be 5.56x45mm (as fired by the Diemaco C7A1 rifle) in a pile close together. Others show a male body with wounds to an arm, the upper left quarter of the back and the right buttock. Further pictures show a dark-coloured Mercedes motorcar; details are included of holes in the bodywork and upholstery that could be bullet holes. iii.     Report by ICDC Lieutenant Colonel Awadu Kareem Hadi 35.     On 22 April 2004 ICDC Lieutenant Colonel Awadu Kareem Hadi, the commanding officer of 603 ICDC Battalion, sent a report from his batallion headquarters to the headquarters of the Iraqi police. It reads as follows (rough handwritten translation, from Arabic into English, submitted by the applicant): “The details of the accident which is happened at date (20/04/2004) and information coming from the first batallion (Ar-Rumaytha) and the details are: At the hour (21.05 [ sic ] after the midnight) from the date (20/04/2004) [ sic ] a car type (Mercedes) coming by high speed directed from (Al Hamza) to (Al Nassiriya) and when the car is reached to the location of the checkpoint does not stop and making a crash with the obstacles present in checkpoint and he was carelessness and the soldiers shouting on him and calling to stop and he is continued and does not stop and after that Dutch soldiers see that there is no way and shoot on him and then injured person ([Azhar Sabah Jaloud]) then he is died and he was sitting near the driver. With our greetings [signed] Lieutenant Colonel Awadu Kareem Hadi A copy to / PJCC” iv.     The metal fragments 36.     An official report by Royal Military Constabulary Warrant Officer Voorthuizen, dated 21 June 2004, states that on 2 June 2004 a document was received in Arabic, which, translated orally by an interpreter, was identified as a report by the Baghdad police. The report stated that three metal fragments had been examined in Baghdad at the request of the Al ‑ Muthanna police with a view to identifying the ammunition from which they had come and the weapon from which they had been fired; however, the provenance of the metal fragments could not be determined, as they were too few in number. A copy of a document in Arabic was attached to Warrant Officer Voorthuijzen’s report. It is not stated in whose custody the metal fragments had been left or where they were being stored. e.     Iraqi document 37.     On 21 April 2004 Mr Dawoud Joad Kathim, the driver of the Mercedes car, lodged a complaint with the Iraqi police against the troops who had fired at his car. It appears from the statement, as taken down in writing, that Mr Dawoud Joad Kathim was under the misapprehension that the foreign troops involved had been Polish rather than Netherlands. Mr   Dawoud Joad Kathim also put on record that he had been told by the interpreter to say that all of the shots had been fired by the ICDC, whereas in fact he had not seen any shots fired by ICDC personnel. f.     Supplementary report, recording statements taken from the ICDC members 38.     After the Chamber’s relinquishment of jurisdiction to the Grand Chamber, the Government provided an official record of the following statements taken from the ICDC members. The following is a sworn translation subsequently submitted by the applicant: “Name: A Saad Mossah Weapon number: GL 5574 Ammunition: 4 X 30 cartridges ‘During the second incident I was lying in a position with all-round security. I saw that a car was travelling at high speed towards the checkpoint from the direction of Ar   Rumaytha. I saw that it rammed into two drums by the checkpoint and simply continued going. My commander [ICDC Sergeant Hussam Saad] walked forwards together with the interpreter and two Dutch soldiers and then I heard a large number of shots fired. I myself did not fire any shots. I cannot tell you any more than this.’ Name Haider Shareef Weapon number UE 0481 1984 Ammunition 4 Cartridge clips and 120 cartridges in total ‘1 cannot tell you anything about the first incident because I was asleep at the time in the watch hut. During the second incident I was standing by the vehicle checkpoint and I saw a Mercedes Benz driving towards the checkpoint. I saw that the Mercedes Benz rammed into two oil drums and drove on in the direction of Hamsa. I heard the Dutch soldiers shouting stop, stop, and then I heard shots being fired. I saw nothing else because I was standing behind a hut on the opposite side to the watch hut.’ INTERPRETER Name Walied Abd Al Hussain Madjied Date of birth 25-10-1969 Kuwait / Hawalli ‘We started at 0:00 hours and we drove on patrol. Up till 01:30 hours we were present here and then we drove on to the following checkpoint. When we arrived there the checkpoint commander said that shots had been fired at the previous checkpoint. I heard lieutenant V. [presumably Lieutenant A.] say that I should get into the car and we drove back to the checkpoint. When we arrived we asked for details. The checkpoint commander and sergeant Hossam of ICDC said that after we had left a truck had stopped there and its driver said that a vehicle, which was an Opel, was driving behind them. Then an Opel approached, which made a U-turn 100 metres before the checkpoint and switched off its lights. And then there were several shots fired at the checkpoint from this vehicle. Sergeant Hussam Saad then fired two of his magazines, each containing 30 cartridges, at the above-mentioned vehicle until they were empty. Sergeant Hossam’s men also fired shots. After I heard this report I went together with lieutenant V. to look for cartridge cases. We walked past the checkpoint and then I heard the sound of falling drums. I turned around and saw that a vehicle had driven into the drums and was driving towards us. I believe that the vehicle was not driving fast. I did see that the vehicle was swerving. I shouted in Arabic in a loud voice stop, stop, stop, but the vehicle continued going. The man appeared to be drunk and he closed his windows. After the vehicle had passed I heard shots being fired. A Dutch sergeant then told me to look for cover. This Dutch sergeant then shouted in a loud voice to stop firing. I also shouted this in the direction of the people from I.C.D.C. A Dutch soldier on the other side of the road continued firing. He did not stop firing, not even when the Dutch sergeant had called out to stop firing. When the vehicle stopped, on the instructions of the Dutch sergeant I tried to talk to the people in the vehicle. I told the driver to get out and to lie on the ground. He did this. When I started to talk to front-seat passenger, I heard the driver say that the front-seat passenger was injured. We then went straight to the vehicle and opened the front-seat passenger’s door. I saw that the front-seat passenger’s left arm was bloody. I then walked over to the driver of the vehicle and he said that they had been drinking and had not seen that there was a checkpoint. I could smell that the driver stank of alcohol. While the vehicle was stopped, shots were still being fired, but I do not know where these came from. When we went to pick up cartridge cases from the first incident everyone walked away from the checkpoint and there was no-one on the road and it was dark there. There were no lights showing up the checkpoint, which meant that it was not clear that there was a checkpoint there. I think it is strange that shots were fired at the vehicle because there was no firing at that moment. I think that they should have fired a warning shot, then the vehicle would have stopped. I can also tell you that, during the search for cartridge cases from the first shooting incident, I was walking on the same side together with the Dutch sergeant and the sergeant from I.C.D.C. The Dutch lieutenant was walking on the other side. I do not know how many other people were then walking behind me. I can also tell you that I do not know whether shots were fired at the checkpoint from the vehicle during the second shooting incident.’ On 21 April 2004, at around 05:15 hours was interviewed: Name; Hussam Saad, the person in question is SGT [sergeant] and local CDT [ commandant , commander] of ICDC. Weapon number: 84MD5596 and is AK 47 and at the time of the interview not loaded. He also had in his possession 2x full magazines (2x30 cartridges). 1 magazine was empty. ‘At the start of my duty I had 120 cartridges in my possession. At around 02:10 hours I fired 60 cartridges. At that moment a car came from the direction of Al   Hamza and stopped before the Traffic Control Point. The lights of this vehicle were then turned off and then the car turned back in the direction of Al Hamza. I hear shots and see muzzles pointing out of the car. I fire back with my AK 47. My position at the start of this shooting incident was in front of the watch hut. After the shooting we ran in the direction of the vehicle, together with three colleagues. These colleagues are called: -     Alla’a Adnan -     Mohammad Khazem -     Hameed Jaber. These three colleagues also fired shots. At around 02:15 hours this car suddenly drove away. After this we immediately called up the base. Lieutenant A. arrives by us about 20 to 25 minutes later. The CDT, interpreter, lieutenant A. and someone else go to look for cartridge cases. During the search a car approached the Traffic Control Point on the Main Supply Route Jackson from the direction Ruymaythah and heading in the direction of Al Hamza. The CDT was on the right-hand side of the road looking for cartridge cases, (looking in the direction of Al Hamza). Lieutenant A. was on the left-hand side of the road looking for cartridge cases, (looking in the direction of Al Hamza). Suddenly I heard the sound as if a car had driven into the drums at the Traffic Control Point. I saw that the car continued driving in the direction of Al Hamza. We tried to stop the car by shouting. Then we heard shots. I heard shots from the left-hand side of the road (looking in the direction of Al Hamza). As far as I am aware, no shots were fired from the Mercedes. A soldier from the Dutch army was standing on the right-hand side of the road. I did not fire a single shot myself in the direction of the Mercedes.’ On 21 April 2004 at around 05:30 hours was interviewed; Name: Hameed Jaber Weapon number: 84MD0596 Ammunition: 1 cartridge clip containing 15 cartridges. 2 cartridge clips, each cartridge clip containing 30 cartridges. 1 cartridge clip containing 25 cartridges. ‘At the time of the second incident I was lying behind the watch hut. I saw and I heard a car approaching from the direction of Ar Rumaytah. This vehicle drove at high speed through the checkpoint and rammed into two drums. Then I heard shooting. I do not know anything else. During the 1st incident I fired 15 cartridges.’ On 21 April 2004 at around 06:15 hours was interviewed: Name: Haider Mohsen Weapon number: GB 4140 Ammunition: 4 magazines, each magazine containing 30 cartridges. ‘I was asleep during the 1st incident. I could not go outside on account of the shots being fired at the watch hut. When I came outside I saw a car driving away in the direction of Al Hamza. During the 2nd incident I saw a Mercedes approaching. I was standing at the VCP. We had 360 degrees all-round security then. I heard the Mercedes driving into the oil drums and saw that it then drove away at high speed in the direction of Al Hamza. I heard a Dutch person shouting “stop”. However, the car did not stop. I heard shots. I heard the car stop. I heard voices coming from the car radio. This was playing very loudly. I did not see anything else.’ On 21 April 2004 at around 06:00 hours was interviewed: Name Ali Hussein Weapon number S41297 Ammunition: 3 magazines, each magazine containing 30 cartridges. 1 magazine containing 26 cartridges. ‘During the second incident I was lying within an all-round security. I saw a car driving at high speed through the VCP in the direction of Al Hamza. I heard a Dutch soldier shouting ‘stop, stop’. I did not want to shoot since our own people were walking in front of the VCP. Then I heard shots being fired. I fired 4 times during the first incident. I was standing outside the watch hut then.’ On 21 April 2004 at around 05 45 hours was interviewed. Name: Ahmed Ghaleb Weapon number S54469 Ammunition: 4x30 cartridges. ‘During the first incident I was asleep in the watch hut. I did not fire any shots then. During the second incident I was lying within an all-round security just next to the watch hut. I heard a car ramming into two drums. The car continued driving fast, (it was clearly accelerating). Then I heard shots in front of the VCP. I know nothing else.’ Name Alâa A Dnan Weapon number 84 MD 0890 Ammunition 3 magazines with 30 cartridges and 1 magazine with 22 cartridges ‘I fired shots during the first incident. These were shots. [ sic ] During the second incident I was situated in an all-round and was lying on the left-hand side of the road. I was looking in the direction of Hamza. I was [ sic ] that a car was driving from the direction of Ar Rumayta. It drove through the traffic control point and thereby rammed a couple of drums. I could not see what happened then, but I did hear shots being fired.’ Name Ilia MOHAMMED KHAZEM , corporal 2nd rank Weapon number 84 MD 6151 Ammunition 4 magazines with 120 cartridges in total ‘I did not fire a single shot last night because 1 did not receive any orders to do so. I was standing by the traffic control point facing the direction of Hamza. At a certain point I heard a car driving into an oil drum. The car continued driving in the direction of Hamza. I heard the Dutch people shouting stop at the driver of the car that had broken through. Then I heard shots. When I saw that the Mercedes had stopped I also ran in that direction. I could not see who was standing on the left and right-hand sides of the road because it was dark. Murtada Khazaat Yasser Abd Alaal Ahmed Shaker Ali Hussein The above-mentioned people came at 04:10 AM hours.’ Name SAHIB JASSIM Weapon number 84 MV 7435 Ammunition 4 magazines with 120 cartridges in total ‘During the first incident I was standing by the Traffic Control Point. I saw a truck driving from the direction of Hamza towards the traffic control point. The driver said that he was being followed by a car and he pointed to this car. The driver of the truck said that the car was an Opel. At a certain point there were many shots fired from the car. My colleagues reacted to this and all fired back at the car. We then moved into a 360 degree formation after which the car continued further. During the second incident I was lying on the ground in an all-round by the traffic control point. I saw a car coming from the direction of Ar Rumayta. The car was travelling at high speed and thereby rammed into an oil drum. The car then drove straight through the traffic point and I heard that shots were fired. I cannot tell you anything else that would further explain the situation.” 3.     Domestic proceedings 39.     On 8 January 2007 the applicant’s counsel, Ms Zegveld, wrote via the registry of the Military Chamber to the public prosecution service attached to the Regional Court of Arnhem on behalf of the next-of-kin of Mr   Azhar Sabah Jaloud. She asked to be informed of the outcome of the investigation into the latter’s death and any decisions made as to the prosecution of any suspects, with a view to bringing proceedings under Article 12 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) (see below). 40.     The public prosecutor replied on 11 January 2007, stating that the investigation had been closed in June 2004; that Mr Azhar Sabah Jaloud had presumably ( vermoedelijk ) been hit by an Iraqi bullet; that the Netherlands serviceman who had also fired at the vehicle was entitled to claim self-defence; and that for that reason no Netherlands service personnel had been designated as suspects. 41.     On 1 February 2007 Ms Zegveld wrote to the public prosecutor asking, among other things, for the Rules of Engagement and any reports of investigations by the Iraqi authorities to be added to the file. 42.     The public prosecutor replied on 14 February, declining to accede to Ms Zegveld’s requests. Referring to the Court’s Chamber judgment in the case of Ramsahai and Others v. the Netherlands , no. 52391/99, 10   November 2005, he stated that since the procedure under Article 12 of the Code of Criminal Procedure did not involve the determination of a “criminal charge”, Article 6 of the Convention did not apply and so arrangements for access to the case file in such cases were different from those applicable in ordinary criminal proceedings. 43.     On 2 October 2007 the applicant, represented by his counsel Ms   Zegveld and Mr Pestman, lodged a request under Article 12 of the Code of Criminal Procedure with the Arnhem Court of Appeal for the prosecution of Lieutenant A. He argued that there was nothing to support the suggestion that Mr Azhar Sabah Jaloud had been killed by an Iraqi bullet; that the number of shots fired by Lieutenant A. reflected disproportionate violence; that Lieutenant A. had failed to fire a warning shot and had failed to heed Sergeant Teunissen’s order to cease firing; that, in accordance with Article   50 of the First Additional Protocol to the Geneva Conventions, Mr   Azhar Sabah Jaloud ought to have been considered a civilian in the absence of any indications to the contrary and ought therefore not to have been subjected to aimed rifle fire; and that the use of lethal force by Lieutenant A. had been unnecessary in any event. He also relied on the statement made to the Iraqi police by the driver of the car, to the effect that the latter had been told to keep quiet about the involvement of Netherlands military personnel. 44.     On 28 January 2008 the Chief Public Prosecutor ( hoofdofficier van justitie ) to the Regional Court of Arnhem wrote to the Chief Advocate General ( hoofdadvocaat-generaal ) to the Court of Appeal of Arnhem, recommending that the applicant’s request be di