CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 juillet 2024

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SPAIN (Application no. 2327/20)   JUDGMENT   Art 6 § 1 (civil) • Access to court • Discontinuation of criminal proceedings investigating the killing of the applicant’s brother, a journalist of Spanish nationality, in Iraq for lack of jurisdiction following a legislative reform restricting the Spanish courts’ universal jurisdiction for offences committed extraterritorially • Art   6 applicable under its civil limb • Right under Spanish law for the applicant to participate as a private accusing party in the criminal proceedings and to obtain civil compensation from the perpetrators if a criminal offence was established and a conviction secured • Mandatory jurisdiction under the 1949 Fourth Geneva Convention did not extend to an obligation on a State to search for war criminals outside its territory and to claim jurisdiction to prosecute and try them, when there were no connecting factors to that State • No obligation flowing from international law or the Convention for Contracting States to acquire universal civil jurisdiction • Not unreasonable for a State to make the exercise of universal jurisdiction conditional on the existence of certain connecting factors or jurisdictional links with that State • Applicant able to bring his complaints before the Spanish courts • Effective exercise of jurisdiction by the Spanish authorities for more than twelve years prior to discontinuation • No indication of arbitrariness or manifest unreasonableness in Spanish courts’ conclusion as to a lack of jurisdiction • Finding not disproportionate to the aims pursued • Domestic courts’ interpretation corresponded to the purpose of the new law aiming to limit litigation based on universal jurisdiction to cases where a sufficient link to Spain existed and fell within the State’s margin of appreciation • Proceedings discontinued temporarily without ruling out the possibility of reopening if defendants came under Spanish territory   Prepared by the Registry. Does not bind the Court.   STRASBOURG 25 July 2024   FINAL   25/10/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Couso Permuy v. Spain, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mattias Guyomar , President ,   Carlo Ranzoni,   Mārtiņš Mits,   María Elósegui,   Kateřina Šimáčková,   Mykola Gnatovskyy,   Stéphane Pisani , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   2327/20) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr David Couso Permuy (“the applicant”), on 23 December 2019; the decision to give notice of the application to the Spanish Government (“the Government”); the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Government of the United Kingdom and Rights International Spain, a non-governmental organisation based in Spain, who were granted leave to intervene by the President of the Section; the observations submitted by the respondent Government and the applicant in reply to the comments submitted by the Government of the United Kingdom: Having deliberated in private on 25 June 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant is the brother of a journalist, Mr José Manuel Couso Permuy (hereinafter “the victim”), who was killed on 8 April 2003 by the US military in Iraq while he was on a working mission. Criminal proceedings were opened in Spain in this regard but a legislative reform that restricted the Spanish courts’ jurisdiction in respect of such cases led to the proceedings’ discontinuation in 2016. The applicant complained, under Articles 6 and 13 of the Convention, mainly of his lack of access to a court. THE FACTS 2.     The applicant was born in 1979 and lives in Valencia. He was represented by Mr E. Gómez Cuadrado, a lawyer practising in Madrid. 3.     The Government were represented by Mr A. Brezmes Martínez de Villareal, Government Agent. 4.     The facts of the case may be summarised as follows.         The applicant’s brother’s killing in Iraq 5.     Starting on 20 March 2003, a coalition of countries conducted a military invasion of Iraq. The applicant’s brother, the victim, a Spanish camera operator, was in Iraq covering the events for the Spanish TV channel Telecinco , together with many other international journalists working for different media outlets. 6.     In the early hours of 8 April 2003, the tanks of the 4th Battalion of the 64th Armoured Regiment of the 3rd Infantry Division of the US Army began approaching the centre of the city of Baghdad, Iraq. They fired on the headquarters of the Arab television channel Al-Jazeera, killing a reporter and wounding a camera operator. Soon afterwards, they also fired on the press centre of the Abu Dhabi TV, wounding twenty two journalists employed by that channel. Subsequently, the 3rd Infantry Division headed towards the Palestine Hotel, where most of the international press (around 300 journalists) – especially those of European origin – were staying. Among them was the applicant’s brother. 7.     From a distance of 1,700 metres from the Palestine Hotel, standing on the Al ‑ Yumhuria Bridge, a US battle tank (equipped with a 120 mm cannon and an optometric visor affording the user to see for 4 kilometres) fired on the hotel, hitting the fifteenth   floor. The applicant’s brother was severely wounded, and died a few hours later in a hospital in Baghdad.       The domestic proceedings before March 2014    Initiation and first discontinuation of the proceedings 8 .     Since mid-March 2003, several denuncias (“criminal reports”, which can be made by any person who learns of the commission of a crime) were lodged by different organisations and individuals with the Spanish courts concerning different actions taken during the military invasion of Iraq by, among others, the Spanish armed forces – mainly concerning the decision of the Spanish Prime Minister and Minister of Foreign Affairs to take part in the military coalition in Iraq and the alleged perpetration of crimes against humanity there. One of the denuncias , lodged on 9 April 2003, concerned the assault on the Palestine Hotel that had killed the applicant’s brother. 9 .     On 22 April 2003, central investigating court no. 6 of the Audiencia Nacional issued a decision dismissing the criminal complaint concerning the shot that led to the death of the applicant’s brother on the grounds that the Spanish courts lacked jurisdiction to examine the case because (i) the victim’s killing had allegedly been perpetrated by non-Spanish nationals (that is, members of the US military) and (ii) “it could not be considered to constitute genocide”. The remaining complaints concerning the military invasion of Iraq were sent to central investigating court no. 1 of the Audiencia Nacional , which was the court dealing with denuncias concerning the war in Iraq. 10 .     On 27 May 2003, the victim’s mother and three siblings (including the applicant) lodged a criminal complaint ( querella ) with the Audiencia Nacional to investigate the events leading to the victim’s death. The complaint was lodged against three US servicemen. According to the plaintiffs, the Pentagon (the United States military command) had been notified of the location of Al-Jazeera’s headquarters, and large flags bearing the word “TV” had been on display. Allegedly, hundreds of journalists from international press outlets had been for the most part staying at the Palestine Hotel, which was situated 500 meters away from the Al ‑ Jazeera headquarters, pursuant to instructions from the Pentagon. According to the complaint, the US Army had been aware of the fact that the building was not a military target. However, the plaintiffs asserted that the US military had had the premeditated intention of preventing international press and Al-Jazeera from continuing to depict the reality of the invasion, which was inflicting death or injury on many Iraqi civilians. The complaint stated that the above-described events had amounted, in principle, to a war crime, as defined by the Geneva Conventions of 1949 (see paragraph 80 below) and the Rome Statute (see paragraph 81 below), as well as under the Spanish Criminal Code (see paragraph 84 below). 11.     The victim’s family also lodged an appeal against the decision of central investigating court no. 6 of the Audiencia Nacional of 22   April 2003 (see paragraph 9 above), asserting that the Spanish courts did indeed have jurisdiction to investigate the case in question. On 2 June 2003, central investigating court no. 6 partially upheld the appeal, declaring void the dismissal of the criminal complaint, and sending that complaint for examination to central investigating court no. 1 of the Audiencia Nacional (hereinafter, “the investigating court” or “the investigating judge”) for it to decide whether Spanish courts had jurisdiction over such cases or not. On 17   June 2003, the Public Prosecutor’s Office submitted a report requesting that the complaint lodged by the applicant and his relatives be dismissed on the grounds that Spanish courts lacked jurisdiction to examine the events in question. 12.     Several civic organisations (namely, Politeya, Reporters Sans Frontières, Asociación Libre de Abogados, Asociación de Camarógrafos de Televisión y Vídeo and Asociación de la Prensa de Madrid) were granted leave to become a party to the proceedings ( acusación popular ). 13.     On 17 October 2003, the investigating judge ordered that three witnesses (journalists who had been present at the Palestine Hotel in Baghdad at the time of the shooting) be heard by the investigating court; those journalists were heard on 23 October 2003. 14.     On 27 October 2003, the victim’s family requested that the court hear other journalists who had been present at the time of the events in question as witnesses, and that the court also view a video recording of some television footage of the tank opening fire on the Palestine Hotel. Those witnesses were heard on 7 December 2003. The investigating court, of its own motion, requested the Spanish Ministry of Defence to submit to it all documents in its possession relating to investigations conducted by the Spanish authorities or any other investigation carried out by US military forces concerning the events of 8 April 2003 in Baghdad. The Ministry of Defence replied that it did not possess any such documents and that it was for the Ministry of Foreign Affairs to submit any such documents. 15 .     On 13 and 17 November 2003, the victim’s widow, sister and uncle also lodged a request to be admitted as private accusing parties to the proceedings. They also asked the investigating court to request the Spanish Ministry of Foreign Affairs for all the documents in its possession, and the court lodged that request. They also submitted a report from the Committee to Protect Journalists concerning the attack that had caused the victim’s death. 16.     On 30 December 2003, the Public Prosecutor’s Office lodged an appeal against the investigating judge’s decision to allow the above-mentioned request for investigative measures lodged by the victim’s family (see paragraph 15 above), on the grounds that the investigating judge still had to decide on his own court’s jurisdiction to investigate the events in question, and that no investigative measures should be undertaken before the question of jurisdiction was settled. The Public Prosecutor’s Office reiterated that its position was that the Spanish courts held no jurisdiction in respect of the instant case, and that the proceedings should therefore be discontinued. 17.     On 21 January 2004, the criminal chamber of the Supreme Court declared inadmissible the 11,691 criminal reports ( denuncias ) that had been received concerning Spain’s participation in the war in Iraq against the Spanish President and Minister of Foreign Affairs, as well as the United Kingdom’s Prime Minister, because there was no evidence that the Spanish armed forces that had participated in the Coalition which had intervened in Iraq had committed any criminal offences. 18 .     On 30 January 2004, the Ministry of Foreign Affairs submitted the correspondence exchanged between the US authorities and that Ministry   –   including a letter by which the former had informed the Spanish authorities of the results of the inquiry carried out by the US authorities into the victim’s death. The letter indicated that the victim’s death had occurred in a war zone during an ongoing battle and that, according to a U.S. military review of the incident, the US forces had responded to hostile fire that had appeared to come from a location which they later identified as the Palestine Hotel. It furthermore held that the US military had not targeted civilians or civilian structures, but that their forces nevertheless had to defend themselves when threatened or under fire. The letter stated that according to the findings of the above-mentioned inquiry, the media had been repeatedly cautioned that Baghdad would be an extremely dangerous location from which to file journalistic reports, and that news agencies had been specifically advised that the US Department of Defence could provide no guarantee of safety or any sort of specific warning of danger while journalists were working in Baghdad. The letter stated that 8   April had been a day of very intense fighting and that the US forces had been met with heavy direct and indirect enemy fire. Only after US forces had fired towards what they had identified as an enemy observation post had they became aware of the fact that the building they had fired on was the Palestine Hotel and that journalists at the hotel had been killed or injured as a result. The letter stated that they had fired in self-defence and in accordance with the US military’s rules of engagement. In the light of the above-mentioned factors, the letter concluded, the US authorities’ review of the events that had been conducted on 8 April 2003 had indicated that the use of force had been proportionate to the threat posed to US forces. The Spanish Ministry of Foreign Affairs also stated that no further investigation had been carried out by the Ministry itself because at the time of the events in question, the diplomatic staff of the Embassy of Spain in Baghdad had been evacuated to Amman, Jordan. 19 .     The victim’s family asked the investigating court to lodge a request   –   with, inter alia , the Spanish Centre of National Intelligence (“the Spanish CNI”), the US Justice Department, the US Department of Defence and the US State Department, and the Greek government (since that State had held the European Union (EU) Presidency at the time of the events in question) – that further evidence be gathered in order to clarify whether there were ongoing any investigations into the events in question and that any relevant documents concerning those events be submitted. 20.     On 23 February 2004, the Public Prosecutor’s Office lodged a complaint against the investigating judge’s failure to respond to its earlier requests that the case be discontinued on the grounds that the Spanish courts lacked the necessary jurisdiction.   On 8 March 2004, the investigating judge dismissed the Public Prosecutor’s Office’s request that the case be discontinued on the grounds that the Spanish courts lacked the necessary jurisdiction. The investigating judge’s decision explained that he had a duty to duly investigate the events in question, prior to determining whether the proceedings should be dismissed or discontinued, or proceed to the trial stage. The Public Prosecutor’s Office lodged an appeal against that decision, which was dismissed by the criminal chamber of the Audiencia Nacional on 19   November 2004. 21 .     On 20 April 2004, the investigating court – pursuant to the request lodged by the victim’s family (see paragraph 19 above) – requested the above-mentioned relevant documents and information from the Spanish CNI, the Greek government and (on the basis of the Treaty of Mutual Legal Assistance in Criminal Matters of 20 of September 1990 between the United States and the Kingdom of Spain) from the US Department of Justice, the US   Department of Defence and the US State Department. 22.     On 4 May 2004, the Spanish CNI replied that it did not have any documents or information concerning the events investigated in the proceedings, and that it had not had any personnel deployed in Iraq at the time of the events in question. 23.     On 1 October 2004, the investigating judge requested the International Judicial Cooperation Directorate of the Ministry of Justice to inform him of the status of the requests for further evidence lodged with the above ‑ mentioned US authorities (see paragraph 21 above). 24.     On 8 November 2004, the investigating judge held that he had found out through different media outlets of the existence of a report prepared by the US Department of Defence on an investigation carried out by them that had been sent to the Committee for the Protection of Journalists. That report had allegedly concluded that there had been no fault or negligence on the part of the US military. The investigating judge requested the US embassy in Madrid to submit a copy of that report (translated into Spanish). 25.     Since the US authorities had not responded, on 30 May 2005 the victim’s family requested the investigating court to lodge the request again, and to issue a judicial assistance request asking for the investigating judge to be allowed to hear the three US servicemen allegedly responsible as persons under investigation. The investigating court granted both requests on the following day (31 May 2005). 26.     On 2 June 2005, the Ministry of Justice replied that a request for information and documents had been lodged with the US authorities on 21   May 2004 and lodged again on 5 October 2004, but that no answer had been received; it stated that yet another request had been lodged on that same date (that is, 2 June 2005). 27.     On 5 June 2005, the investigating judge informed the US Attorney’s Office that in the light of the events being investigated, the three US   servicemen had been charged by the investigating court (i) under sections 611 § 1 and 608 § 3 of the Spanish Criminal Code with an offence against the international community for having targeted civilians, and (ii) under section 139(1) of the Spanish Criminal Code with murder. He requested either authorisation from the US authorities to travel to the United States with a judicial commission ( comisión judicial ) in order to hear the statements of the three persons under investigation, or authorisation for the accused men to travel to Spain to be heard by the Audiencia Nacional , under the supervision and coordination of the US embassy in Madrid. 28.     On 19 October 2005, in the light of the seriousness of the events in question (as described by the witnesses) and the lack of any response from the US authorities, the investigating court ordered that the three persons under investigation be sought and arrested, with a view to their extradition to Spain. 29.     The Public Prosecutor’s Office appealed against the above-mentioned decision, arguing that the investigating court had no jurisdiction to investigate the events in question and that, pending an explicit decision regarding the question of jurisdiction, the criminal complaint could not even be considered to have been duly admitted; therefore, the three above-mentioned US military personnel could not be technically considered to be under investigation. It furthermore requested that the search-and-arrest order be suspended until the appeal had been decided. The victim’s family opposed the appeal lodged by the Public Prosecutor’s Office, arguing that the Spanish courts did indeed have jurisdiction in respect of the matter of the victim’s killing and that it was therefore the duty of those courts to search for and prosecute those responsible for it. The civic organisations (acting as parties to the proceedings) opposed the appeal as well. 30 .     On 27 October 2005, the investigating judge requested Interpol to provide the personal details of the persons under investigation in order that he might be able to issue international arrest warrants in respect of them. 31.     On 28 October 2015, the investigating judge dismissed the appeal lodged by the Public Prosecutor’s Office and upheld the search ‑ and ‑ arrest order issued on 19 October 2005. He emphasised the need to carry out investigative measures in order to ascertain whether the proceedings should be discontinued or should proceed to the trial stage. Moreover, the decision expressly stated that the Spanish courts did have international criminal jurisdiction on the basis of (i) section 23(4)(g) of the Institutional Law on the Judiciary, as worded at the time in question (see paragraph 86 below), to hear the events in question, and (ii) an international treaty requiring Spain to prosecute war crimes – namely, the   Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the   Fourth Geneva Convention”) and its Additional Protocol I (see paragraphs   80 ‑ 81 below). The Public Prosecutor’s Office lodged an appeal with the criminal chamber of the Audiencia Nacional against the investigating court’s decision. 32.     On 7 November 2005, the investigating court issued a judicial decision whereby it officially declared admissible the criminal complaint lodged by the victim’s mother and three siblings on 27 May 2003 (see   paragraph 10 above). The Public Prosecutor’s Office lodged two appeals against that decision, insisting that the domestic courts did not have jurisdiction in respect of the events in question; however, the investigating court dismissed them on 23 November and 2 December 2005 respectively. 33 .     On 2 February 2006 the investigating judge received a response from the US Department of Justice (see paragraph 21 above) stating that it had already carried out an exhaustive and thorough investigation into the events in question in accordance with the procedure established by their domestic law. That investigation had concluded that the three US   servicemen had acted in legitimate self-defence and in accordance with the rules of war. It had accordingly found no evidence of any crime or wrongdoing, concluding that the use of force by the US military had been proportionate to the threat posed to them. As a result, the US authorities informed the Spanish courts that no criminal investigation would be conducted and that the Department of Justice would not assist the Spanish courts by making the three US soldiers available for prosecution. 34.     The victim’s family lodged a claim arguing that their request for judicial cooperation had not been properly satisfied by the US authorities, and that that request should be lodged again. On 15 February 2006, the investigating judge lodged a new request for judicial cooperation with the US   authorities; the judge observed that the US authorities had not cited any of the reasons listed as valid by the bilateral Treaty of Criminal Assistance between the US and Spain for declining to cooperate, and asked for details of any inquiries (and the conclusions thereof) conducted by the US authorities within the context of their investigation. 35.     The investigating judge also issued a reminder to Interpol regarding his request to be provided with the personal information of the three US   soldiers in order that he might be able to issue international arrest warrants in respect of them (see paragraph 30 above). Interpol informed the investigating judge that the US authorities had replied that they could not provide them with any information in the light of the Department of Justice’s decision not to authorise the prosecution of the three soldiers. 36.     On 8 March 2006, the criminal chamber of the Audiencia Nacional upheld the Public Prosecutor’s Office’s appeal and concluded that the Spanish courts did not have jurisdiction to investigate the killing of the victim. The court considered that in the light of the findings of the investigation so far, it was apparent that the targeting of the Palestine Hotel by the US military had not been aimed at killing any civilians or journalists, but had rather been an act of war against a wrongfully identified enemy. Thus, it could not be considered to constitute a war crime. As a result, – and in the light of the fact that the persons under investigation were not Spanish nationals and that the events had not taken place on Spanish territory – the Spanish courts did not have jurisdiction. Therefore, the court held that the search-and-arrest orders in respect of the persons under investigation should be revoked and the proceedings terminated. The criminal chamber of the Audiencia Nacional stated that it would be desirable for the Spanish legislature to restrict the domestic courts’ jurisdiction in respect of crimes such as war crimes or genocide by stipulating that some link to the Spanish courts (that is to say some link between the commission of such crimes and Spain) should exist in order for those courts to be able to exercise jurisdiction in respect of such crimes (as was the case in several other European States at the time in question). 37.     On 10 March 2006, the investigating judge revoked the search ‑ and ‑ arrest orders that had been issued in respect of the three US soldiers and ordered the discontinuation of the criminal proceedings.    Resumption and conclusion of the investigation stage 38.     The victim’s family and the civic organisations lodged appeals on points of law with the Supreme Court against the decision to discontinue the proceedings. 39.     On 11 December 2006, the criminal chamber of the Supreme Court upheld the appeals, holding that Spain had jurisdiction to investigate and conduct a trial in respect of the events in question, in view of the fact that section 23(4) of Institutional Law 6/1985 had established the unrestricted extraterritorial jurisdiction of the Spanish courts based on the principle of universality (“universal jurisdiction”) without any restriction other than that of res judicata . Moreover, in the present case, there was a link with the Spanish courts – namely, the Spanish nationality of the victim. In any event, further investigation of the events in question was necessary in order to establish the nature of the offence (if any offence at all had indeed been committed). Moreover, the Supreme Court held that, by declaring – without even hearing the three US servicemen – that there had been no intention on the part of those servicemen to kill the victim or other civilians when firing on the Palestine Hotel, the criminal chamber of the Audiencia Nacional had violated the claimants’ right to effective legal protection and to fair proceedings. The Supreme Court accordingly overturned the 8 March 2006 decision of the criminal chamber of the Audiencia Nacional . 40 .     On 16 January 2007, the investigating judge reissued the international search-and-arrest orders of the persons under investigation. He requested Interpol, the Spanish police and the Guardia Civil , as well as the US embassy in Madrid to provide him with personal information in respect of the three persons under investigation in order that Interpol could proceed to arrest them. The US embassy did not provide any response, and the investigating court reiterated the request. 41.     On 24 April 2007, the investigating judge initiated formal proceedings ( incoación del sumario ) aimed at investigating the alleged commission of (i)   crimes against the international community and (ii) murder. 42.     On 27 April 2007, the investigating judge charged the three US   servicemen with a war crime; specifically, launching an indiscriminate attack against the civil population – a crime prohibited by the Fourth Geneva Convention of 12 August 1949 and its Additional Protocol I of 8 June 1977, as well as by sections 608(3) and 611(1) of the Spanish Criminal Code. The judge deemed that the investigation had been concluded and the trial stage had begun (he issued a decision called auto de procesamiento ). The Public Prosecutor’s Office lodged an appeal with the investigating court against the investigating judge’s decision of 27 April 2007 to charge the military officers; however, the investigating judge confirmed that decision on 24 May 2007.    Reopening of the investigation stage and second discontinuation of the proceedings 43.     On 13 May 2008, following an appeal by the Public Prosecutor’s Office against the conclusion of the investigation and the decision to proceed to the trial stage, the criminal chamber of the Audiencia Nacional overturned the above-noted decision of 24 May 2007 (upholding the decision of the investigating judge of 27 April 2007 to charge the servicemen and to proceed to the trial stage). It held that some of the factual elements ( elementos fácticos ) needed to support the charges – in particular, the subjective element ( elemento subjetivo – that is, the intention to kill the victim) – had not been sufficiently proved. It reopened the investigation and ordered the investigating judge to gather further evidence to clarify the facts of the case. 44 .     On 20 May 2008, the investigating court ordered that several new pieces of evidence be gathered by means of, inter alia : hearing new witnesses (namely, (i) journalists who had been present at the events in question and (ii)   the former Spanish Ministers of Foreign Affairs and Defence); commissioning an armaments report from a military expert, and requesting the Iraqi judicial authorities to authorise a field visit from a judiciary commission to the site of the events in question. 45 .     On 14 November 2008, the investigating judge sent a reminder to the Iraqi authorities of his previous request for judicial cooperation, to which he had received no reply.   On 15 March 2009, the Iraqi Ministry of Foreign Affairs informed the investigating court that it was looking into the details of the victim’s death and would provide further information as soon as it had any. 46 .     Over the following months, and after several reminders sent to them by the investigating judge, the former Ministers of Foreign Affairs and Defence gave written statements, which were added to the case file. An expert report was also submitted. An account of the events in question given on a television programme by a former US military-intelligence sergeant was also added to the case file. Those journalists who had already given witness statements were again questioned. Two expert witness reports on armaments commissioned by the Ministry of Defence were also submitted. The investigating judge also gathered aerial photographs and a detailed plan of the scene of the events in order to be able to fully understand the terrain. He also asked (to no avail) whether there were any representatives from Al ‑ Jazeera or Abu Dhabi TV in Spain who could provide a witness statement; moreover, he requested the Iraqi authorities for authorisation to travel to Iraq in order to personally survey the scene of the events with a judicial commission; that request was refused. 47.     On 21 May 2009, in the light of the above-described evidence, the investigating judge adopted a new decision to charge the same US members of the military with (i) launching an indiscriminate attack against the civilian population and/or committing (or threatening to commit) acts of violence, as defined by international and national criminal law and (ii) the offence of homicide under the Spanish criminal code (see paragraph 84 below). 48.     The Public Prosecutor’s Office lodged an appeal, which was dismissed by the same court on 1 June 2009. The Public Prosecutor’s Office lodged another appeal. 49.     On 14 July 2009, the criminal chamber of the Audiencia Nacional upheld the appeal lodged by the Public Prosecutor’s Office and revoked the decision to charge the three persons under investigation. This time it did not order the undertaking of fresh investigative measures, but rather the discontinuation of the case. It deemed that the new pieces of evidence gathered were inconclusive and that those elements of the crime that had not been proved sufficiently at the time of its decision of 14 May 2008 to reopen the proceedings had not been resolved after the investigation had been resumed – despite the fresh investigative measures carried out since that resumption. The criminal chamber held that, there being reasonable doubts as to whether the actions of the persons under investigation could be considered to constitute an offence (in the light of the evidence gathered), the benefit of that doubt had to be given to the persons charged; therefore, the proceedings could not proceed to the trial stage. 50.     As a consequence, on 16 July 2009 the investigating judge ordered that the proceedings be discontinued and declared the search ‑ and ‑ arrest orders null and void. The decision was appealed against by the victim’s family (including the applicant) and by the civic organisations that were parties to the proceedings. On 23 October 2009, the criminal chamber of the Audiencia Nacional upheld the investigating judge’s decision and declared the unconditional discontinuation ( sobreseimiento libre ) of the case. The same parties lodged an appeal on points of law.    Resumption of the investigation stage of the proceedings 51.     On 13 July 2010, the criminal chamber of the Supreme Court partially upheld the appeals, revoked the discontinuation of the case, and ordered the investigating judge to carry out all investigative measures that had been planned, as well as any other measures necessary to clarify the facts of the case. It considered that the commission of the offences by the three members of the US military could not be ruled out and that the applicant’s right of access to a court and to a proper investigation into the death of his brother had been violated by the dismissal of the case. 52 .     The investigation stage was resumed. On 29 July 2010, the investigating judge asked the police to locate any witnesses that they could find from Al-Jazeera and Abu Dhabi TV. The judge also lodged for the second time a request with the Iraqi authorities for cooperation. He also again requested the US authorities to submit any and all documents concerning the events of the case; the investigating judge also asked the US government for permission to hear the three members of the US military as persons under investigation. Repeating their assertion of 2006 (see paragraph 33 above), the US authorities informed the investigating judge in March 2011 that they would not assist the Spanish courts any further. 53.     A search, arrest and imprisonment order was issued by the investigating judge against the three persons under investigation in order to effect their extradition to Spain. 54.     In October 2010, Interpol submitted that it had decided not to accept the request by the investigating court, since it found the matter in question to constitute an offence of military nature, and the US was a third-party State. The investigating judge asked Interpol to provide a more extensive explanation for its decision, and Interpol replied that its Statute strictly forbade any activity or intervention in respect of issues of a political, military, religious or racial nature. On the basis of the statement of facts that was submitted to it, it considered that the military nature of the crimes under investigation prevented Interpol from providing any assistance. The investigating judge then requested from each individual Interpol member State a different type of cooperation that would allow Interpol’s member States to arrest the persons under investigation if they were found, but without Interpol’s assistance. 55.     A journalistic report from October 2003 was added to the case ‑ file material. Some journalists from Al-Jazeera were heard as witnesses in January 2011. Another witness (a journalist) was heard on 5 July 2012. 56.     In October 2010, the investigating judge and the lawyers of the parties to the proceedings travelled to Baghdad in order to visit and inspect the scene of the shooting. The Public Prosecutor’s Office alleged that the planned visit to Iraq did not comply with the relevant international legal requirements and that it would not send any representative to take part in the visit. The judicial commission gathered some photographs and videos of the view from the Al ‑ Yumhuria Bridge. The investigating judge ordered an expert report comparing those images to the view that the above-mentioned battle tank (that had fired on the Palestine Hotel) would have had from the Al ‑ Yumhuria Bridge. The investigating judge ordered further expert report from academic physicists, and further photographs and witness statements were added to the case file. 57.     On 7 December 2010, the victim’s relatives asked the investigating judge to request a report from the Public Prosecutor’s Office, in the light of information revealed by WikiLeaks according to which there had been ongoing conversations between the Public Prosecutor’s Office and the US   authorities aimed at ensuring that all judicial decisions taken in Spain concerning the investigation into the events of the instant case and the charges against US citizens would be systematically subject to appeal, and to push for the dismissal of the case. 58.     On 5 May 2011, the investigating judge requested Interpol and Eurojust to submit further personal information in respect of the three US   members of the military under investigation. Both entities responded in 2013 that they could not grant that information. 59.     On 4 October 2011, for the third time, the investigating judge charged the three members of the military with an offence against the international community and with the offence of homicide (under Articles 611 § 1, 608   §   3, and Article 138 of the Spanish Criminal Code – see paragraph 84 below). The new decision incorporated a detailed account of the events in question, which included an aerial photograph of the terrain and conclusions obtained after the above-mentioned visual inspection in Baghdad. It also ordered that statements be taken from the charged persons’ two hierarchically superior officers. The decision was translated and sent to the US authorities. 60 .     On 17 November 2011, the Directorate-General for   International Legal Cooperation   and Human Rights ( Dirección General de Cooperación Jurídica Internacional ) received, and submitted to the judicial proceedings, the results of the investigation carried out by the US authorities (that is, the administrative authorities – criminal proceedings were never conducted) concerning the tank fire aimed at the Palestine Hotel in Baghdad on 8 April 2003; the report – whose contents amounted essentially to the same as the information that had been obtained in 2004 via correspondence between the US authorities and the Spanish Ministry of Justice (see paragraph 18 above) – explained the investigating procedure followed and the conclusion reached (which was that the above-mentioned actions of the members of the US   military had been justified). Further documents and information were attached to the report – including sworn statements given by members of the US military, and a memorandum concerning the inquiry carried out into the events in question by the Department of the Army; that memorandum also concluded that the US military’s Rules of Engagement had been observed and that the firing directed at the Palestine Hotel had constituted a proportionate and justifiable measured response in the light of the perceived threat coming from the premises. 61.     On 21 January 2013, the investigating judge asked the parties to state whether they considered that the proceedings should be dismissed, or if there was any other statement that they wished to make at that stage. The Public Prosecutor’s Office requested that the case be dismissed. The victim’s family members requested that a witness statement be taken from a former US   military-intelligence sergeant (whose statement had previously been requested but had not been taken – see paragraph 46 above)