CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 mars 2022

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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 case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case: Spanish military presence in Lebanon 4.     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 Toledo 12.     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 proceedings 93.     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, indep