On 25 July 2024, the European Court of Human Rights (ECtHR) delivered a judgment in the case of Couso Permuy v Spain. The case before the ECtHR concerned an alleged violation of Article 6 and Article 13 of the Convention concerning the right to access to a court and to an effective remedy. The court found the claim could be observed solely under Article 6 of the Convention. The judgment was unanimous in stating there had been no violation of Article 6.
This case concerned the applicant’s brother, journalist Mr José Manuel Couso Permuy, who was killed on 8 April 2003 by the US military in Iraq while he was on a working mission. At the time he was covering the Spanish TV channel Telecinco and was staying at the Palestine Hotel in Baghdad, where most of the international press was gathered. A US battle tank opened fire on the hotel severely injuring Mr Permuy, who died a few hours later in a hospital in Baghdad. In its review of the incident the US military stated that US forces had responded to hostile fire that appeared to come from that direction. In this review the US military continued by saying that they had not targeted civilians or civilian structures, but that they were required to defend themselves when threatened.
Criminal proceedings began in Spain but legislative reform (under the law no.1/2014) restricted the Spanish court’s jurisdiction. This legislative reform led to the proceedings discontinuance in 2016. The main question for the ECtHR was therefore whether the impugned legislative reform, which led to the discontinuance of the proceedings into his brother’s killing, violated the applicant’s right of access to a court protected under Article 6?
The applicant argued that the seriousness of the crimes under investigation, amounted to special features that justified the extension jurisdiction under the Convention, beyond Spain’s territorial border even after the 2014 reform. Moreover he stated that the decision to discontinue amounted to a violation of the Fourth Geneva Convention, the Vienna Convention on the Law of Treaties and Article 6 of the Convention. The court however found that law no.1/2014 pursued a legitimate aim and was not disproportionate. The reasons for the reform being: the risk of overburdening the courts and practical difficulties in obtaining evidence in such cases. The court added that the new wording of this law meant that the national courts could only have jurisdiction if the US servicemen accused of the killing were physically present in Spain. The judgment also stressed that criminal investigations had been carried out by Spanish authorities, but could not have in any case proceeded given that the US authorities would not surrender the three accused US soldiers.
Rights International Spain, a non-governmental organisation participated in the case as a third party. One of the key points it made was that s.23 (4) of Institutional Law 6/1985 on the Judiciary had been amended several times, before the amendment implemented by law no.1/2014. Rights International Spain stressed that these amendments whether they restricted universal jurisdiction or not had not limited the possibility of prosecuting those responsible for the applicant’s brother’s death. Law no.1/2014 has been subject to severe criticism and described as an attempt by Spain’s centre right government to ‘curbed the powers of judges to prosecute human rights cases across borders’.