Information Note on the Court’s case-law 261

April 2022

Toledo Polo v. Spain (dec.) - 39691/18

Decision 22.3.2022 [Section III]

Article 1

Jurisdiction of States

Death of Spanish soldier, killed during UN peace-keeping mission by Israeli artillery in Lebanon: outside jurisdiction; inadmissible

Facts – The applicant’s son was a member of the Spanish armed forces and deployed to Lebanon at the relevant time, in the context of a peacekeeping mission established by the United Nations Security Council. He was killed while on duty and positioned in an observation tower during exchange of fire between Israel and Hezbollah, after Israeli artillery rounds hit the tower.

The applicant considered that the acts might constitute a crime under Spanish criminal law and unsuccessfully sought to bring proceedings, with the domestic courts concluding that the acts were outside the scope of Spanish criminal jurisdiction. The applicant complained before the Court that the investigation into her son’s death had been neither effective nor capable of leading to the prosecution of any individual.

Law – Article 1: The present case differed from Hanan v. Germany [GC] in that the death at issue had not allegedly been inflicted by members of the armed forces of the respondent State, but by the armed forces of a third State which was not a Contracting State to the Convention. Moreover, the factual and legal situation in the present case differed 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 was concerned.

Additionally, the Memorandum of Understanding between the UN and Spain in relation to the United Nations Interim Force in Lebanon (UNIFIL) did not refer to situations where personnel contributed by Spain were the victims of any crimes or offences committed while on duty.

The principle – that institution of a domestic criminal investigation or proceedings concerning deaths outside the jurisdiction ratione loci of the respondent State might trigger jurisdiction – was also not applicable to the present case. Although both the military judge and the central investigating judge had opened a criminal preliminary investigation into the death, under domestic law, jurisdiction could have been asserted only if the domestic courts had been able to establish the existence of intention in the commission of the act which had caused the death. The national courts had concluded that that was not the case, and that the facts therefore did not give rise to Spain’s extra-territorial criminal jurisdiction.

In the context of their preliminary investigation, there was nothing to suggest that the Spanish authorities had failed in establishing whether there had been Spanish jurisdiction. Scientific tests had been carried out, evidence had been collected from the scene and multiple witnesses had been questioned. In addition, a detailed investigation report by UNIFIL had been requested and Spanish military personnel had been sent to Israel to learn first-hand about the investigations carried out by the Israeli authorities themselves. Further, both the military judge and the central investigating judge had acted of their own motion, starting proceedings on the same day of the events, even before the applicant had lodged a complaint. Those proceedings had not been confined to determining whether an award of compensation had been justified, but had 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 had been carried out by the UN, the Israeli Army and the Spanish courts, acting on their own behalf. Their outcome had been subject to parliamentary scrutiny when the Minister of Defence had addressed the Congress of Deputies and given full details of the results of such investigations.

The Court was also mindful of the restrictions on Spain’s legal powers to undertake further investigative measures on the ground in Lebanon, and that the death had occurred in the context of an exchange of fire between Israel and Hezbollah in southern Lebanon.

The Court also did not identify any special features capable of bringing the facts of the present case under the jurisdiction of Spain for the purposes of Article 1:

– the mere nationality of the deceased did not amount to a special feature;

– the observation tower where the incident had occurred had been located in a sector led by Spain and commanded at the time by a Spanish General. However, that area was situated in Lebanon and was neither under the effective control of Spain nor under its flag;

– the Israeli authorities had not been prevented, due to any legal or practical reasons, from themselves instituting a proper investigation, which had excluded in principle the risk of a situation of impunity; and

– there was no indication that Spain had 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.

In view of the above, the domestic decisions determining the absence of extraterritorial jurisdiction to carry on with the criminal process in application of domestic law could not be considered arbitrary or manifestly unreasonable.

Conclusion : inadmissible (incompatible ratione personae and ratione loci ).

(See also Güzelyurtlu and Others v. Cyprus and Turkey [GC], 36925/07, 29 January 2019, Legal Summary ; Hanan v. Germany [GC], 4871/16, 16 February 2021, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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