EHRM, 22-03-2022, nr. 39691/18

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.

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.

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.

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.

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.

The Spanish contingent came to have a maximum of 1,100 servicemen, but since 2012 the number has remained between 600 and 700 soldiers.

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.

Since the mission started, fifteen Spanish soldiers have lost their lives.

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.

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).

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.

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.

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.

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.

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.

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’.

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.

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.

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.

Article 15 states that ‘[e]veryone has the right to life and to physical and moral integrity and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment’.

Article 117 § 3 stipulates that the exercise of judicial authority ‘lies exclusively within the competence of the Courts and Tribunals established by law, in accordance with the rules of jurisdiction and procedure which may be established therein’. Article 117 § 5 states that ‘[t]he principle of jurisdictional unity is the basis of the organisation and operation of the Courts. The law shall regulate the exercise of military jurisdiction strictly within military limits and in cases of state of siege (martial law), in accordance with the principles of the Constitution’.

Article 12 states that negligent action and omissions will be punished only where specifically provided for by law.

Article 142 provides for imprisonment of one to four years of anyone who causes the death of an individual by gross negligence (reckless homicide).

Article 550 stipulates that anyone who attacks the authorities, its agents or public servants, or uses force against them, seriously threatens them or actively resists them in the course of their official duties or in connection therewith is guilty of an attack (atentado) on the authorities, which is punishable by a term of imprisonment of two to four years and a fine of three to six months if committed against an authority, and by a term of imprisonment of one to three years in other cases.

Article 571 § 3 defines terrorist organisations or groups as groups that, fulfilling the characteristics established in Articles 570 bis and 570 ter respectively (two or more persons who, for a definite or indefinite period of time, are each allocated tasks for the coordinated commission of crimes), have the purpose or objective of subverting the constitutional order or seriously altering the public peace by committing any of the offences provided for in the following chapter (terrorist offences). Article 572 § 1 provides for fifteen to twenty years' imprisonment of those who, while a member of, acting in the service of or collaborating with terrorist organisations or groups, commit the crimes of havoc (estragos) or arson. Article 572 § 2 states that those who, while a member of, acting in the service of or collaborating with terrorist organisations or groups commit attacks against persons are liable to a term of imprisonment of twenty to thirty years if this results in a person's death.

The following provisions of Chapter III, entitled ‘Crimes against protected persons and property in the event of armed conflict’, are relevant to the present case.

Article 608 § 3 considers civilians protected under the Fourth Geneva Convention and Additional Protocol I to fall under the scope of ‘protected persons’ for the purposes of Chapter III. United Nations personnel protected under the Convention on the Safety of United Nations and Associated Personnel of 1994 also fall into the same category (Article 608 § 6).

Article 609 stipulates that anyone who, during an armed conflict, physically abuses or seriously endangers the life, health, or integrity of any protected person, is liable to a term of imprisonment of four to eight years, without prejudice to the punishment that might be appropriate for the results caused.

Article 610 stipulates that anyone who, during an armed conflict, uses or orders methods or means of combat that are prohibited or intended to cause unnecessary suffering or superfluous harm, is liable to a term of imprisonment of ten to fifteen years, without prejudice to the relevant punishment for the results caused.

Article 611 § 1 states that anyone who, during an armed conflict, conducts or orders indiscriminate or excessive attacks or makes the civilian population the target of attacks, retaliation or acts or threats of violence, the main purpose of which is to strike fear, is liable to a term of imprisonment of ten to fifteen years. Article 611 § 7 provides for the same term of imprisonment of those who, during an armed conflict, impede or delay, without reason, the release or repatriation of civilians.

Article 612 § 10 provides for three to seven years' imprisonment of anyone who, during an armed conflict, intentionally directs attacks against personnel of the United Nations and associated personnel or those participating in peacekeeping or humanitarian missions in accordance with the UN Charter, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict, or threatens to commit any such attack with the objective of compelling a physical or legal person to commit or to refrain from committing any act.

Article 614 stipulates that anyone who, during an armed conflict, perpetrates or orders any other violations or acts contrary to the provisions of the international treaties to which Spain is a party and related to how hostilities are conducted, regulation of the means and methods of combat, protection of the wounded, the sick and shipwrecked, due treatment of prisoners of war, protection of civilians and protection of cultural property in the event of armed conflict, is liable to a term of imprisonment of six months to two years.

Section 23(3) provides that acts committed by Spanish nationals or foreigners outside Spanish territory fall under the jurisdiction of the Spanish criminal courts where they can be classified, under Spanish criminal law, as certain crimes, including the crime of an attack (atentado) on the Spanish authorities or public servants (section 23(3)(g)).

Section 23(4)(a) grants the Spanish courts jurisdiction over genocide, crimes against humanity and crimes against protected individuals and property in the event of armed conflict, perpetrated by Spanish citizens or foreigners outside Spanish territory, provided that the proceedings are brought against a Spanish citizen or a foreigner whose place of residence is in Spain, or a foreigner who is in Spain and whose extradition has been refused by the Spanish authorities. Section 23(4)(e) grants the Spanish courts jurisdiction over the crime of terrorism committed outside Spanish territory if, among other circumstances, the proceedings are brought against a Spanish citizen, the victim had Spanish nationality at the time the acts were perpetrated, or the crime was committed against official Spanish premises.

Section 23(5)(b) provides that the crimes referred to in section 23(4) will not be prosecuted in Spain where proceedings to investigate and prosecute have been initiated in the State where the acts took place, or in the State of which the individual charged is a national, where the individual charged is not in Spanish territory, among other circumstances. Nonetheless, section 23(5)(b) does not apply where the State that exercises its jurisdiction is unwilling or genuinely unable to carry out the investigation, and this is recognised by the Second Chamber (Criminal Division) of the Supreme Court. In order to determine whether unwillingness exists in a particular case, the Spanish courts will take into account whether the proceedings were initiated or are underway for the purposes of shielding the person concerned from criminal responsibility; whether there has been an unjustified delay; or whether the proceedings were not or are not being conducted independently or impartially, and were or are being conducted in a manner inconsistent with the intent to bring the person concerned to justice.

Section 23(6) stipulates that the crimes referred to in subsections (3) and (4) will only be prosecuted in Spain where proceedings have been brought by the injured party or the Public Prosecutor's Office.

Section 12(1) provides that in peacetime, the military courts are competent to prosecute the crimes included in the Military Criminal Code. Section 12(3) and (4) extends this competence in the event of permanent or temporary presence outside the national territory of Spanish military forces or units, to crimes included in international treaties, agreements or conventions to which Spain is a party, or where there are no applicable treaties, to all crimes under Spanish law, provided that the accused is a Spanish citizen and they were committed during service or in the areas occupied by Spanish military forces or units.

Section 115 stipulates that heads of independent units or the Special Forces, isolated or with military control over a territory, must, as soon as they have knowledge of the commission of a crime under military jurisdiction, perpetrated by anyone subordinate to them or committed in the place where they exercise control, communicate it to the military judge and appoint an officer under their command, assisted by a secretary, to initiate the corresponding report.

The Military Criminal Code applies only to perpetrators of a crime who, at the relevant time, were considered military personnel. Accordingly, Article 1 § 1 states that the Military Criminal Code applies to acts constituting military crimes.

Article 2 provides that, for the purposes of the Code, military personnel are those who at the time of commission of the crime were in the military.

The Constitutional Court summarised its case-law regarding universal jurisdiction in its judgment no. 140/2018 of 20 December 2018. This decision analyses the approach adopted by Parliament in 2014 (Organic Law no. 1/2014) on restricting the extraterritorial/universal jurisdiction of the Spanish courts only to cases where there is a particularly intense point of connection that would allow the effective exercise of the right of access to a court (the link of nationality of the perpetrator or victim, the nature of the crime or the obligation assumed under international treaties). The Constitutional Court considered that Organic Law no. 1/2014 was not unconstitutional.

As regards the compatibility of this approach with Spain's international obligations, the Constitutional Court observed that:

On 11 September 2020 the Audiencia Nacional found Inocente Orlando Montano Morales, a former Salvadoran army colonel serving as a government security minister, guilty of the murder of five Spanish Jesuits in 1989. The decision considered that the crimes had been committed by an organised group, which qualified as ‘terrorism’ under Spanish law.

The assassination of Ignacio Ellacuría occurred in the context of the conflict between the Farabundo Martí National Liberation Front (FMLN) and the Salvadoran army. The latter considered the Jesuits, amongst whom Ignacio Ellacuría was particularly important as rector of the Central American University (UCA), to be the ‘intellectual leaders’ of FMLN. The Inter-American Commission of Human Rights considered, along with other external observers, that there had not been a diligent and effective investigation into the events by the Salvadoran State, nor impartial and objective proceedings (Report no. 136/99, 22 December 1999).

In the first section of its legal reasoning, the Audiencia Nacional stated as follows:

With regard to the legal classification of the acts as a crime of terrorism, the judgment (section 7 of its legal reasoning) stated as follows:

Resolutions 425 (1978) and 426 (1978) of 19 March 1978 provide that UNIFIL was established for the purpose of confirming the withdrawal of Israeli forces from southern Lebanon, restoring international peace and security and assisting the Government of Lebanon in ensuring the return of its effective authority in the area.

Resolution 1701 (2006) was adopted by the Security Council at its 5511th meeting, on 11 August 2006. It expanded the mandate of UNIFIL.

In its paragraph 1, the Security Council called for:

Paragraph 7 of the Resolution reads as follows:

Paragraph 8 called for:

Paragraph 11 reads as follows:

Paragraph 12 reads as follows:

Spain signed this Convention on 19 December 1994 and ratified it on 13 January 1998. Israel is not a party to it, while Lebanon has been a party since 25 September 2003.

It applies to those engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a UN operation (‘United Nations personnel’). The Convention (Article 1) defines a ‘United Nations operation’ as:

Article 2 of the Convention defines its scope of application as follows:

Article 7 (2) states:

Article 9 (1) defines as a crime against United Nations and associated personnel the intentional commission of, inter alia, : (a) ‘a murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel’; (b) ‘a violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty’, and (e) ‘an act constituting participation as an accomplice in any such attack, or in an attempt to commit such attack, or in organizing or ordering others to commit such attack’. Article 9 (2) states that ‘[e]ach State Party shall make the crimes set out in paragraph 1 punishable by appropriate penalties which shall take into account their grave nature’.

Article 10, headed ‘Establishment of Jurisdiction’, reads as follows:

Rule 33 of the Customary International Humanitarian Law study by the International Committee of the Red Cross (ICRC) reads as follows:

According to the commentary to this Rule:

The Government contended that, according to the Court's case-law, jurisdiction was essentially territorial, which meant that extraterritorial jurisdiction was exceptional. In other words, the responsibility of the respondent State should only be extended to where it could effectively exercise its powers, not beyond. In the present case, neither Spain nor the UN had been responsible for carrying out any military action in the territory of Lebanon. On the contrary, the damage had been caused by an agent outside Spain's control (namely the Israeli army) acting from a different national territory (Israel). There had been no control over the territory in which the action had taken place, nor had it been produced by the respondent State's agent, nor had there been a subordinate local administration to which the facts might be imputable.

The Government submitted that, according to the Court's case-law (Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, 29 January 2019, §§ 181 and 183, with references cited therein), the obligation to investigate when the victim had the nationality of a State party but the death occurred outside the territory of that State rested solely with the State where the events had taken place. In the present case, that was Lebanon (where the death had occurred) or Israel (where the action that had resulted in the death had originated).

According to the Government, only the finding of a ‘special feature’ justified the extension of Spanish jurisdiction in the present case. In that regard, the Court had previously stated that the mere nationality of the deceased was not a ‘special feature’ which necessarily gave rise to a jurisdictional link with the respondent State for the purposes of Article 1 of the Convention (Rantsev v. Cyprus and Russia, no. 25965/04, § 244, ECHR 2010 (extracts), and Emin and Others v. Cyprus, Greece and the United Kingdom (dec.), nos. 59623/08 and 6 others, 3 June 2010). In the present case, the mere fact that the deceased had been a Spanish national did not therefore give rise to the emergence of jurisdiction under Article 1 of the Convention in conjunction with Article 2 under its procedural limb.

As to whether the Spanish courts had ‘institute[d] their own criminal investigation or proceedings concerning a death which ha[d] occurred outside the jurisdiction of that State’ (Güzelyurtlu and Others, cited above, §§ 188-89), the Government argued that the military judge and the central investigating judge had acted only to determine whether there was jurisdiction under domestic law. This investigative action prior to assuming jurisdiction could not amount to an implicit act of recognition of jurisdiction. After an exhaustive investigation, both judges had concluded that, in accordance with Spanish law, they lacked jurisdiction for the investigation and prosecution of the acts at issue and that the proceedings were therefore concluded. In particular, the ordinary criminal judge had concluded that the alleged crimes committed abroad in the context of an armed conflict were not among those subject to universal jurisdiction under Spanish procedural law (terrorism or intentional attack on Spanish officials), while taking into account the response given by the Israeli authorities to the request for international assistance submitted by the Spanish courts.

The Government further contended that the effective investigation carried out by the Israeli authorities into the events proved that Spain had lacked jurisdiction. In the present factual scenario, the respondent State had had no means of enforcing its criminal jurisdiction; the validity of its Criminal Code on foreign territory could not be imposed, the events could not be directly investigated, the alleged perpetrator could not be coercively compelled to appear before its courts and, in short, the respondent State could not enforce any sentence that might be imposed. In this connection, the Government asked the Court to take into account the fact that prosecution in absentia was not legally possible in Spain.

The applicant argued that the domestic courts had not been exempted from exercising their jurisdiction. The investigation carried out by the IDF should not have been assimilated to an investigation conducted by a judicial body. The lack of independency and impartiality of a body of a military nature impaired the reliability of its conclusions. It could not therefore be concluded that Israel had exercised its jurisdiction in an effective manner, as argued by the Government.

Moreover, the applicant stressed that domestic courts should not have ruled out the intentional nature of the acts, without first conducting a more detailed and effective investigation into the facts of the case and by simply relying on a report submitted by a non-independent authority.

In its judgment in Güzelyurtlu and Others (cited above), the Court set out the principles concerning the existence of a ‘jurisdictional link’ for the purposes of Article 1 of the Convention in cases where the death occurred outside the territory of the Contracting State in respect of which the procedural obligation under Article 2 of the Convention was said to arise. After summarising the relevant case-law up to that point, the Court held:

Applying those principles to the case at hand, the Court went on to find that a ‘jurisdictional link’ between the applicants, who had complained under the procedural limb of Article 2 about their relatives' deaths in the Cypriot-Government controlled part of Cyprus, and Turkey, was established on two grounds, each of which would have sufficed in itself to establish such a jurisdictional link within the scope of that case (ibid., §§ 191-96). A jurisdictional link was established, first, because the authorities of the ‘Turkish Republic of Northern Cyprus’ (‘TRNC’) had instituted their own criminal investigation into the murder of the applicants' relatives, which gave the ‘TRNC’ courts criminal jurisdiction over the individuals who had committed the crimes wherever they were to be found on the whole island of Cyprus, and which accordingly engaged Turkey's responsibility under the Convention. A jurisdictional link was also established because there were two special features related to the situation in Cyprus: (i) the northern part of Cyprus was under the effective control of Turkey for the purposes of the Convention; and (ii) the presence of the murder suspects in the territory controlled by Turkey had been known to the Turkish and ‘TRNC’ authorities and prevented Cyprus from fulfilling its Convention obligations.

More recently, in Georgia v. Russia (II) ([GC], no. 38263/08, 21 January 2021), the Court, applying the principles set out in the Güzelyurtlu and Others judgment, held that the Russian Federation's jurisdiction was established in respect of the complaint under the procedural limb of Article 2 of the Convention, even in respect of deaths which had taken place during the active phase of the hostilities and did not fall within the jurisdiction of the Russian Federation with respect to the substantive limb of Article 2. The Court had regard to the following ‘special features’ of the case: the Russian Federation had an obligation to investigate the events at issue in accordance with the relevant rules of international humanitarian law and domestic law; it had established ‘effective control’ over the territories in question shortly after the hostilities; and all the potential suspects were located either in the Russian Federation or in territories under its control, therefore preventing Georgia from carrying out an adequate and effective investigation into the allegations (ibid., §§ 329-32).

In Hanan v. Germany ([GC], no. 4871/16, 16 February 2021), the Court considered that the principle established in Güzelyurtlu and Others —. that the institution of a domestic criminal investigation or proceedings concerning deaths occurring outside the jurisdiction ratione loci of a State and not within the exercise of its extraterritorial jurisdiction was in itself sufficient to establish a jurisdictional link between that State and the victim's relatives — did not apply to the factual scenario at issue. The Court referred to the fact that the deaths investigated by the German authorities had occurred in the context of an extraterritorial military operation within the framework of a mandate given by the United Nations Security Council acting under Chapter VII of the United Nations Charter, outside the territory of the Contracting States of the Convention (ibid., § 135). However, reiterating that even where no investigation or proceedings had been instituted in a Contracting State, the ‘special features’ of a case could establish a jurisdictional link bringing the procedural obligation imposed by Article 2 into effect (see Güzelyurtlu and Others, cited above, § 190), the Court considered that this also applied in respect of extraterritorial situations outside the legal space of the Convention, as well as in respect of events occurring during the active hostilities phase of an armed conflict (see Hanan, cited above, § 136, with reference to Georgia v. Russia (II), cited above, §§ 329-32).

The Court went on to find the following special features in the Hanan case: (i) Germany was obliged under customary international humanitarian law to investigate the air strike at issue; (ii) the Afghan authorities were, for legal reasons, prevented from instituting a criminal investigation (under the ISAF Status of Forces Agreement, the troop-contributing States had exclusive jurisdiction over personnel contributed to ISAF in respect of any criminal or disciplinary offences on the territory of Afghanistan); and (iii) the German prosecution authorities were also obliged under domestic law to institute a criminal investigation (see Hanan, cited above, §§ 137-40). In sum, the fact that Germany retained exclusive jurisdiction over its troops with respect to serious crimes which, moreover, it was obliged to investigate under international and domestic law, constituted ‘special features’ which, combined, triggered the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2 of the Convention (ibid., § 142). The Court emphasised, however, that it did not follow from the above that the substantive act fell within the jurisdiction of the Contracting State or that the act in question was attributable to that State (ibid., § 143).

The Court observes at the outset that the present case differs from Hanan in that the death at issue was not allegedly inflicted by members of the armed forces of the respondent State, but by the armed forces of a third State which is not a Contracting State to the Convention (compare and contrast Hanan, cited above; Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011; and Jaloud v. the Netherlands [GC], no. 47708/08, ECHR 2014). The death occurred in the context of a peacekeeping mission established by the United Nations Security Council which includes monitoring the cessation of hostilities in the area and supporting the Lebanese armed forces as they deploy throughout southern Lebanon, including along the Blue Line (see paragraphs 149-54 above). These operations are indeed covered by the scope of Convention on the Safety of United Nations and Associated Personnel (see paragraph 163 above), which explicitly excludes operations under Chapter VII of the UN Charter in which any of the personnel are engaged as combatants against organised armed forces (see paragraph 164 above). Moreover, the factual and legal situation in the present case differs in several crucial respects from the Hanan case, as far as the Court's approach to the existence of a ‘jurisdictional link’ for the purposes of Article 1 of the Convention is concerned (see below).

Additionally, although under the Memorandum of Understanding between the UN and Spain in relation to UNIFIL, Spain retained exclusive jurisdiction over personnel contributed to UNIFIL in respect of any crimes or offences that might be committed by them while they were assigned to the military component of UNIFIL (see paragraph 146 above), this Memorandum does not refer to situations where such personnel are the victims of any crimes or offences committed while on duty.

The Court further considers neither applicable to the present case the principle according to which the institution of a domestic criminal investigation or proceedings concerning deaths occurring outside the jurisdiction ratione loci of the respondent State and not within the exercise of its extraterritorial jurisdiction — as established in Güzelyurtlu and Others — may trigger jurisdiction. It notes in this connection that although both the military judge and the central investigating judge opened a criminal preliminary investigation into the death of the applicant's son in Lebanon, under domestic law jurisdiction could have been asserted only if the domestic courts were able to establish the existence of intent in the commission of the act which had caused the death of Lance Corporal Soria Toledo.

The Court notes in this regard that once the military judge transferred the case to the ordinary criminal courts and the applicant formally lodged a criminal complaint, section 23(3)(g) of the Organic Law on the Judiciary obliged the Spanish criminal courts to investigate and prosecute the crime of an attack (atentado) on the Spanish authorities or public servants (punishable under Article 550 of the Criminal Code) committed outside the national territory by Spanish nationals or foreigners (see paragraphs 125 and 128 above). This was one of the two criminal offences that the applicant claimed before the ordinary courts to be applicable to the incident, the other being terrorism. While the central investigating judge considered that it was evident that the incident was not an act of terrorism but an act of war, the relevant decision stated that ‘one could consider the objective existence of a crime of an attack on a Spanish public servant’ (see paragraph 105 above). The judge noted however that such a crime would only be punishable under the Criminal Code when committed intentionally (dolo), which was not the case in the proceedings under examination since the act was, in his view, an act of negligence. This reasoning was upheld on appeal by the Audiencia Nacional, which noted the lack of information proving that the projectile had been directed against the multinational force and a specific component within it. Therefore, the national courts concluded that the facts did not give rise to Spain's extra-territorial criminal jurisdiction.

The Court refers to the Government's argument concerning the scientific tests carried out (forensic evidence, explosives detection, and others), the evidence collected from the scene and the multiple witnesses who had been questioned. In addition, a detailed investigation report by UNIFIL had been requested and Spanish military personnel had also been sent to Israel to learn first-hand about the investigations carried out by the Israeli authorities themselves.

The Court further cannot disregard that both the military judge and the central investigating judge acted of their own motion, starting the proceedings on the same day of the events, even before the applicant lodged a complaint. Those proceedings were not confined to determination whether an award of compensation was justified, but included the determination of the specific origin of the artillery shell, the context in which it had been launched and the forces responsible for it, responsibility having been assumed by the State of Israel itself.

Separate investigations were carried out by the UN, the Israeli Army and the Spanish courts, acting on their own behalf. Their outcome was subject to parliamentary scrutiny when the Minister of Defence addressed the Congress of Deputies and gave full details of the results of such investigations.

In the light of the foregoing, the Court considers that, in the context of their preliminary investigation, there is nothing to suggest that the Spanish authorities failed in establishing whether there was Spanish jurisdiction including securing the relevant physical or forensic evidence or taking statements from the relevant witnesses in the aftermath of the incident. In this regard, the official report 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 UNIFIL position 4–28 at the time of the incident (see paragraphs 24 and 85 above). This evidence was later submitted, together with the concluding report drawn up on 6 February 2015, to the military judge and the central investigating judge in Madrid (see paragraph 95 above). The Court is also mindful of the restrictions on Spain's legal powers to undertake further investigative measures on the ground in Lebanon, and that the death to be investigated occurred in the context of an exchange of fire between Israel and Hezbollah in southern Lebanon.

As far as the existence of ‘special features’ is concerned, although the Court has found them even where no investigation or proceedings had been instituted in a Contracting State in respect of a death occurring outside its jurisdiction, the Court agrees with the Government that the mere nationality of the deceased does not amount to a special feature triggering the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2. It reiterates in this regard that Article 2 of the Convention does not require Contracting States' criminal laws to provide for universal jurisdiction in cases involving the death of one of their nationals (see Rantsev, § 244, Emin and Others (dec.), Güzelyurtlu and Others, §§ 183–184, cited above).

In the present case, the Court notes that the observation tower at position 4–28 where the incident occurred while the applicant's son was on duty as a sentry was located in Sector East of UNIFIL, a sector led by Spain and commanded at the time by Spanish General/Chief R.O. However, this area is situated in Lebanon and it is neither under the effective control of Spain nor under its flag.

In this regard, the Court observes that, unlike in Hanan (§ 137), in the present case Spain could not be considered to be bound by any obligation of international humanitarian law to investigate the incident, as the primary responsibility for such an investigation laid on Israel, a State not party to the Convention.

The Court considers, secondly, that the Israeli authorities were not prevented, due to any legal or practical reasons, from themselves instituting a proper investigation, which excluded in principle the risk of a situation of impunity (see, a contrario, Hanan, § 138, Güzelyurtlu and Others, § 194 and Georgia v. Russia (II), § 331, cited above).

Finally, the Court takes note that there is no indication from the facts of the present case that could lead to the conclusion that Spain failed to cooperate with any Israeli investigation, in the sphere of cooperation in criminal matters and in conformity with the requirements of the procedural limb of Article 2 of the Convention (see, mutatis mutandis, Romeo Castaño v. Belgium, no. 8351/17, §§ 41 and 85, 9 July 2019).

In view of the above, the Court concludes that it has not identified any special features capable of bringing the facts of the present case under the jurisdiction of Spain for the purposes of Article 1 of the Convention. Moreover, the domestic decisions determining the absence of extraterritorial jurisdiction to carry on with the criminal process in application of Article 550 of the Criminal Code cannot be considered arbitrary or manifestly unreasonable.

The Court concludes that the application is therefore incompatible ratione personae and ratione loci with the provisions of the Convention and, as such, it must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 28 April 2022.

Milan Blaško

Registrar

Georges Ravarani

President