The European Court of Human Rights (ECHR) ruled on Thursday that the Spanish courts’ decision to discontinue the investigation into the death of Spanish journalist David Couso Permuy in Iraq did not breach the right of access to a court under Article 6 of the European Convention on Human Rights.
The ECHR found that Spanish courts lacked jurisdiction to continue investigating Couso’s death as Spanish legislative reforms only allow for the prosecution of foreigners for alleged war crimes committed outside Spain if the foreigners are within Spanish territory. This ruling reinforces the discretion granted to national courts to limit their scope of litigation to cases with sufficient links to the country to prevent overburdening judicial resources.
The case’s discontinuation traces back to these legislative changes, which eliminated Spain’s jurisdiction over the case from 2015 onwards. However, the ECHR noted that David Couso Permuy’s brother had the opportunity to bring his complaints before Spanish courts from 2003 until 2015, during which time Spanish judicial authorities had conducted a thorough investigation into the journalist’s death. This included examining whether the alleged perpetrators could be prosecuted in the US or Iraq while Spanish courts still had jurisdiction.
The investigation initially saw homicide charges filed against three US servicemen—Sgt. Shawn Gibson, Capt. Philip Wolford, and Lt. Col. Philip DeCamp—blameworthy of the incident, arguing that it was consistent with the rules of combat and in response to hostile fire. However, these charges were dropped in 2007 due to lack of evidence, and the case saw various turns, including a reopening ordered by the Spanish Supreme Court in 2010 and dismissal due to lack of new evidence by the National Court in 2009. (For more context, see Jurist’s report).
The ECHR ruled that it is not possible to prosecute the three US servicemen named in the criminal complaint as US authorities would not surrender the servicemen and Spanish law does not permit trials in absentia. Nonetheless, the possibility remains for the case to be reopened if the servicemen were to travel to Spain.
The ruling underscores the complex interplay between national jurisdiction, international human rights law, and the practical limitations faced by judicial systems in prosecuting alleged war crimes. Legal professionals and corporate law entities will need to continue balancing these factors when dealing with transnational legal matters.