Related Rule
Spain
Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
Spain’s LOAC Manual (1996) provides that the right of defence must be respected during criminal proceedings in occupied territories. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.7.b.(3).
Spain’s LOAC Manual (2007) states: “All courts must … afford the accused the rights and means of defence provided for under the Third Geneva Convention [1949 Geneva Convention III]”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.7.c.(2).
The manual also states: “Before any disciplinary award is pronounced, the accused must be given … an opportunity to explain his conduct, defend himself and call witnesses.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.7.e.(2).
The manual further states that the right to defence must be respected during criminal proceedings in occupied territories. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.7.b.(3).
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995). 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
In 2010, Spain’s Supreme Court dismissed an appeal against the judgment of the National High Court and held:
B) The right to a … process with all the [judicial] guarantees – the infringement of which is denounced [in this appeal] – has a series of concrete manifestations: the right … of defence and to the assistance of a counsel, … [the right] to equality of arms, and to use the pertinent means of proof for the defence …
C) … The appeal proceedings [of the National High Court], which also allowed and led to the present appeal, in no way detract from the procedural guarantees or result in the lack of a proper defence. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section II, Primero, (B)–(C), p. 2.
With regard to the issue concerning the infringement of the right to due process, including an effective judicial review, the court stated:
B) The fundamental right invoked has a complex content which includes the right to access judges and tribunals, the right to obtain a decision founded upon rights and its enforcement, [and] the right that the proceedings are carried out in accordance with the law … [I]t does not include … the right to obtain a resolution that is in line with [a person’s own] intentions …
According to the STC 82/2001 [Constitutional Court judgment] “it may only be considered that the contested judicial proceedings violate the right to due process when the reasoning it is founded upon is of such a degree of arbitrariness, unreasonableness or mistake that … it would be obvious for any observer that the determination of the [proceedings] lacks foundation and motivation” …
C) This is not the case here; it must be said that there does not appear to be an infringement of the right to due process, as the appellant has received a ruling founded upon [the examination] of the substance of the issue raised, regardless of the [appellant’s] legitimate disagreement with the decision.
It is clear that the order by which the National High Court terminated the proceedings offered a founded and motivated decision that in no way infringed upon the fundamental right invoked by the appellants. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section I, Segundo, (B)–(C), pp. 2–3.
The Court accepted the proceeding of the National High Court and held that “it would not uphold the appeal formulated by the appellants”. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section III, p. 3.
(emphasis in original)
In 2010, in the Couso case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide an appeal in the case concerning the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America. In deciding upon one of the issues raised in the appeal on whether there was an infringement of the right to due process, including the right to a proper defence, the court held:
D) The substantive issue on the classification of the acts and … the individual responsibility of the alleged perpetrators can only be decided upon by the court through the appraisal of evidence and of the intentions of the accused, resulting in a sentence that can then be the object in certain cases of an appeal …
E) Even admitting for purely dialectic purposes that doubts could exist … concerning the rational indications of an offence found by the examining magistrate, it would still be probable that an offence was committed, which would thus have to be determined in an oral trial.
F) The [1949] IV Geneva Convention and its [1977] Additional Protocol I, incorporated to our legal system through Article 96(1) CE [1978 Spanish Constitution], which establishes the protection of persons defined as “civilians” (in particular journalists) and the obligation of aut dedere aut iudicare [has] been manifestly unfulfilled … by the US …
2. … According to STC 82/2001 [Constitutional Court judgement] “it may only be considered that the contested judicial proceedings violate the right to due process when the reasoning it is founded upon is of such a degree of arbitrariness, unreasonableness or mistake that … it would be obvious for any observer that the determination of the [proceedings] lacks foundation and motivation”.
The right to due process from the perspective of the plaintiffs … means that there is a right to access judges and tribunals to obtain justice …
… [T]he judgement of this Second Chamber of the Supreme Court of 19 May 2004 specifies that the fundamental right to due process does not include the right to obtain the conviction of the accused … [R]ather, as we have repeatedly recalled, this right has a complex content that includes the right to access judges and tribunals, the right to obtain a decision founded in law and its enforcement, and the right that the proceedings are carried out in accordance with the law … [I]t does not include … the right to obtain a resolution in line with [a person's own] intentions …
… STS 927/2005 [Supreme Court judgement] of 5 July 2005 held that the necessary reasoning for proceedings of this nature requires setting out the facts, [and] that they are considered proven …
3. In the facts under consideration, … the appealed order [presently under review] … anticipates a judgment of acquittal when the judicial proceedings have not yet been exhausted …
In addition, as alleged [by the appellants], the appealed order seems to place an emphasis, in order to terminate the proceedings, on the second section of Article 611(1) of the PC [Penal Code (1995)] … when it is clear that on the last occasion the examining magistrate also based his proceedings on the first section … [T]he latter should be evaluated by the Court, as was expressed in the dissenting opinion, according to the principles of International Humanitarian and customary law, and not in an anticipated manner. As a result the appealed order lacks the necessary reasoning, as it ignores the substantial grounds [raised] in the second indictment order …
In addition, the appealed order … reaches a conclusion concerning the termination of the proceedings in accordance with Article 637(2) LECr [Law on Criminal Prosecution of 1881] (as the facts did not constitute an offence) solely based on the allegation that there was a mistake by the acting [US] armed forces. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Segundo, §§ 1–3, pp. 7–8; see also Tercero, §§ 1–2, p. 9 and Quinto, §§ 1–2, pp. 10–11.
[emphasis in original]
On another issue raised in the appeal concerning the violation of the right to the proof of evidence, the court held:
2. This Chamber has stated that the right to use means of proof has constitutional status in our law under Article 24 CE [1978 Spanish Constitution] but it is not an absolute right. …
… As a result an appeal could be upheld when the [assessment of] evidence, or the termination of the proceedings due to the inability to [assess evidence], has been unjustifiably denied, and when … [this] could have had a decisive influence on the outcome of the proceedings …
3. … In the case under consideration, the plaintiffs … were interested: a) in receiving a declaration from the legal representative in Spain of Al Jazeera and Abu Dhabi television; b) in that … a reconstruction of facts take place in Baghdad in order to determine the optical devices of the combat vehicle that attacked [the hotel]; c) in the testimony of Sergeant Elsa (on a television program she said that the Palestine Hotel had been designated as a military objective by the chain of command of the US army despite knowledge that members of the press were staying there) … These proceedings are still of interest for the establishment of the facts; in addition “others could be carried out” as noted by the order of 16 July 2009 … for example taking the declarations of the three members of the armed forces allegedly responsible for the shooting.
Consequently, the appeal is upheld. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Cuarto, §§ 2–3, pp. 9–10.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.” 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section III, pp. 20–21.