CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 5 décembre 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s29100277 { font-family:Arial; font-weight:bold } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sBD1BE8CC { width:33.89pt; display:inline-block } .s6B870CDD { width:153.11pt; display:inline-block } .s100D1E5 { width:50.22pt; display:inline-block } .s2CF788F1 { width:132.09pt; display:inline-block }     FIFTH SECTION DECISION Application no. 3945/24 Ana Isabel LÓPEZ LUCÍA and Teodoro VIDAL RUIZ against Spain   The European Court of Human Rights (Fifth Section), sitting on 5   December 2024 as a Committee composed of:   Gilberto Felici , President ,   María Elósegui,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar , Having regard to: the application (no.   3945/24) 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”) on 23 January 2024 by two Spanish nationals, Ms A.I. López Lucía and Mr T. Vidal Ruiz, who were born in 1966 and live in Valencia (“the applicants”) and were represented by Mr J.M. Gonzalez Acuña, a lawyer practising in Valencia; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the alleged insufficiency of the investigation into the death of the applicants’ son under the procedural limb of Article 2 of the Convention, and the alleged lack of effective remedies in breach of Article   13 of the Convention. 2.     The applicants are the parents of A.V.L., a Spanish soldier who was killed in Iraq. On 8 September 2016, he was in a tank on the side of a road on vigilance duties as there were ongoing negotiations between Spanish and Iraqi soldiers which were taking place in the middle of a road. Unexpectedly, a military tanker truck approached at an extreme speed, deviated from the main road, and crashed into the tank which A.V.L. was in. The impact caused him to be thrown out and land on the road, where he was immediately run over by the same tanker truck. He died instantly. Two other soldiers were trapped inside the tank which had been hit and were wounded. 3.     A military investigation was immediately initiated by the Spanish forces deployed in Iraq, which gathered a detailed explanation of what had happened according to some of the witnesses, a written testimony by the other Spanish military members who had been present at the time of the events, A.V.L.’s death certificate, and some photographs of the scene and the body. The report reflected that the Iraqi police had also inspected the scene and had prepared their own report, which was also attached. It mentioned that the driver of the tanker truck, an Iraqi national, had been arrested. 4.     On 9 September 2016, the following day, a military court based in Madrid initiated a criminal investigation. After the repatriation, autopsy and burial of the body, and following a preliminary investigation in which they gathered the aforementioned investigative report, the medical reports of the two wounded soldiers, and the public prosecutor’s submissions, the military court was satisfied that the person responsible for the impact which had killed A.V.L. and wounded another two soldiers was an Iraqi national. It concluded that under Spanish law, the military jurisdiction was not competent to pursue the investigation of the events. 5.     On 24 January 2017 the military court relinquished jurisdiction to the ordinary courts, stating in particular that under Section 23(4) of Institutional Law on the Judiciary, the Audiencia Nacional would be competent to investigate the killing of a Spanish soldier even if it had been committed outside Spanish territory by a non-Spanish citizen, provided that the killing could be considered to amount to an offence of terrorism or an attack against a civil servant in act of service under Spanish law. The military court stated that, notwithstanding the possibility of a change following an investigation, the events at hand could preliminarily be considered to amount to terrorism or to an attack against a civil servant in act of service. 6.     On 16 February 2017 the Central Investigative Court no. 4 of the Audiencia Nacional (“the investigative court”) initiated criminal proceedings. The public prosecutor’s office lodged their submissions on 3   March 2017 observing that, in the light of the materials in its possession, it appeared that A.V.L.’s killing had been the result of a traffic accident, and that the events could not be considered to amount to “terrorism” under Spanish criminal law. As a result, the public prosecutor’s office concluded that the Spanish courts did not have jurisdiction to investigate and prosecute the killing of A.V.L, and requested the discontinuation of the case. 7.     On 7 March 2017, the investigative court concluded that there were no signs that the facts constituted either an act of terrorism, or an attack against a civil servant in act of service. As a result, the Spanish courts had no jurisdiction to prosecute acts occurred in Iraq by an Iraqi national, and discontinued the case. 8.     The applicants lodged a criminal complaint, claiming that the events which led to their son’s death could indeed amount to either terrorism or an attack on a civil servant under Spanish criminal law, and that further investigative measures were required before it could be concluded that the Spanish courts did not have jurisdiction. They submitted that, according to the available reports, the tanker truck driver had not shown any signs of reducing speed or breaking before the crash with the tank, and that the existence of precedents of Islamic terrorist attacks carried out by heavy vehicles justified considering that there had been a terrorist attack, rather than a traffic accident. They also held that it had not been established whether the driver had been a member of the Iraqi armed forces. Moreover, as pointed out in the complaint, there was no information about the judicial proceedings which were allegedly pending against that person in Iraq. Lastly, the applicants requested that further evidence be gathered. 9.     On 18 April 2018, the investigative court issued an international rogatory commission, requesting the Iraqi authorities to inform it about any investigation or proceedings which had taken place there, before it could be established whether the Spanish courts had jurisdiction over the killing of A.V.L. 10.     The Iraqi authorities sent the documents in March 2020. They were received by the investigative court on 29 October 2020 and translated. 11 .     According to the translation of the information received, the Iraqi authorities had initiated an investigation into the facts, concluding that the driver of the tanker truck was an Iraqi member of the military and that he had been “100% negligent” in his driving. He provided a statement to the police according to which, while he was driving the military tanker, he was distracted by a Spanish military vehicle in the middle of the road, and due to a technical failure in his break, he could not stop his vehicle, lost control of it and hit the tank where A.V.L. had been. He stated that he was injured himself. The tanker truck was also examined, as well as the scene of the events. The defendant, who had been legally represented, was arrested from the moment when the events had taken place until 30 October 2016 under the Iraqi Traffic Code. He was then brought before a judicial authority, provided another statement, was charged of having negligently run over A.V.L., and was released on 3 November 2016 under a bail of 15 million Iraqi dinars, pending judicial proceedings. The applicant’s representative and a legal representative of the Spanish Embassy in Iraq also provided statements. According to the Iraqi judicial decisions taken soon after the events, there had been no additional investigation of the accident by the police forces because the “Spanish party” rejected it, and requested that judicial action be taken in case there was evidence to support it. No further judicial decisions adopted within the judicial proceedings was sent by the Iraqi authorities. There was a document from the file which reflected a communication from the police to the investigative judge in Iraq according to which there had been a decision from the investigative judge of 4 December 2019 and one from a court of appeals of Baghdad of 28 November 2019. The document also mentioned an investigation report dated 16 April 2014, in the light of which a decision from “an officer” to initiate an independent investigation was mentioned. 12.     The public prosecutor’s office issued new submissions and pointed out that, in order to have jurisdiction over the facts at hand, which occurred outside Spanish territory, the following concurring requirements were needed under Spanish law: (i) that the acts were of a terrorist nature and that the victim was Spanish, or an attack against a Spanish civil servant in act of service; and (ii) that no proceedings have been initiated for the investigation and trial in the country where the facts had occurred, unless the said country had no will or no capacity to carry out such proceedings. The public prosecutor observed that the result of the rogatory commission had proven that criminal proceedings had been initiated and were ongoing in Iraq, which constituted the negative limit for the Spanish courts to prosecute the same offence. Moreover, from the result of the police investigation, it was apparent that the events could be considered a traffic accident caused by the driver’s excessive speed and a distraction, which amounted to a “100% negligence” conduct from the driver. Hence, the offence did not amount to either a terrorist act, nor a (wilful) attack against a civil servant, the only offenses over which the Spanish courts would have jurisdiction. The public prosecutor’s office requested the dismissal of the proceedings. 13.     On 20 September 2022, the investigative court dismissed the case, based on the public prosecutor’s submissions, on the grounds that (i) the Iraqi authorities had in fact initiated proceedings to prosecute the crime; and (ii) the acts were not constitutive of terrorism, and neither could it be said that there had been an intention to attack the victim as a civil servant. 14.     The applicants lodged an appeal, claiming that the Iraqi investigation had been manifestly insufficient to rule out the existence of terrorism or intention and, as a result, the Spanish courts retained jurisdiction and had the obligation to investigate. They insisted that additional evidence should have been gathered, and that there was a reasonable doubt that the Iraqi authorities’ version that the events had only amounted to a traffic accident was reliable. They considered that, in the light of the time elapsed between the date of the events and the response to the international rogatory commission, it was apparent that the Iraqi authorities did not have the will to carry out a thorough investigation, and this allowed the Spanish courts to investigate and prosecute the offence at hand. 15.     On 2 November 2022, the applicants’ appeal was dismissed by a decision of the criminal chamber of the Audiencia Nacional . That court considered that there was enough evidence of the exchanges between the police and the investigating court in Iraq, as well as with a court of appeals. It held that it was not possible to contest the fact that an investigation had been initiated, and in any case, it was not possible to infer that the events could amount to offences of terrorism or an attack against a civil servant. The dismissal of the proceedings was upheld. 16.     The applicants lodged an amparo appeal, which was declared inadmissible by the Constitutional Court for lack of constitutional relevance on 25 September 2023. THE COURT’S ASSESSMENT Alleged violation of Article 2 of the Convention 17.     The applicants complained under the procedural limb of Article   2 of the Convention that a proper investigation should have been carried out by the Spanish courts, in the absence of which their right had been violated. 18.     It is undisputed that the Spanish courts could have had jurisdiction over the facts at stake, should the legal requirements specifically provided for by Section 23(4) of Institutional Law on the Judiciary and the applicable provisions of the Criminal Code had been met (compare to Couso Permuy v.   Spain , no. 2327/20, 25 July 2024). In that case, Spain would have had the obligation to carry out an investigation under the procedural limb of Article   2 of the Convention. 19.     However, there is nothing to suggest that in the present case the Spanish authorities failed in establishing whether there was Spanish jurisdiction including securing the relevant evidence from Spanish and Iraqi authorities (see Toledo Polo v. Spain (dec.), no. 39691/18, § 190, 22   March 2022). 20.     In this regard, the investigation initiated on the same day of the events by the Spanish military authorities included photographic evidence and witness statements from the military officers who had been at the scene at the time of the incident. The Iraqi authorities also submitted information about their investigation on the case, which showed that the Iraqi driver of the truck had been detained and arrested, and was under judicial proceedings in which it had been established that his conduct had been negligent, causing a traffic accident (see paragraph 11 above). 21.     The Court is satisfied that the above elements were enough for the Spanish courts to lose their jurisdiction in favour of the Iraqi authorities, as the primary responsibility for such an investigation lay with them. There are no reasons to believe that the Iraqi authorities were unwilling or incapable of conducting an investigation. There is nothing arbitrary or manifestly unreasonable in the conclusion reached by the domestic courts about their lack of jurisdiction with regards to the present proceedings. 22.     In the light of the above, the complaint should be considered incompatible   ratione personae and ratione loci   with the provisions of the Convention and, as such, it must be declared inadmissible in accordance with Article   35 §   4 of the Convention. Alleged violation of Article 13 of the Convention 23.     The applicants also complained that they were deprived of an effective remedy against Article 13 of the Convention. 24.     However, the domestic courts gave a specific and explicit response to the subsequent appeals lodged by the applicants, who were able to make submissions in every instance before the domestic courts and obtained a well ‑ reasoned response from the judicial authorities. 25.     It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 9 January 2025.     Martina Keller   Gilberto Felici   Deputy Registrar   President