Соответствующая норма
Spain
Practice Relating to Rule 100. Fair Trial Guarantees
Spain’s LOAC Manual (1996) provides that “the guarantee of judicial proceedings” is one of the minimum guarantees provided to prisoners of war. 
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, § 8.2.c.
Spain’s LOAC Manual (2007) states: “Any person detained for actions related to the armed conflict is entitled to legal, procedural and judicial guarantees.” 
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, § 1.4; see also § 8.2.c.
The manual also states with regard to combatants without prisoner-of-war status: “Although they are not entitled to prisoner-of-war status, they do have the right to a fair trial and all the generally recognized procedural guarantees.” 
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, § 7.3.a.(8).
Spain’s Military Criminal Code (1985) provides for the punishment of military personnel who deprive prisoners of war and civilians of their right to a regular and impartial trial. 
Spain, Military Criminal Code, 1985, Article 77(5)–(6).
Under Spain’s Penal Code (1995), depriving a prisoner of war or a civilian person of his/her right to a regular and impartial trial is an offence. 
Spain, Penal Code, 1995, Article 611(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.
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
… Article 17 of the [1998] … ICC Statute … offers certain criteria on the admissibility and inadmissibility to hear situations referred to it when certain circumstances are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by International Law, whether … [the proceedings] were or are being conducted in a manner which, in the circumstances, is inconsistent with the intention to bring the concerned person to justice. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 4–5.
In determining whether there had been a judicial process with the necessary guarantees, the court held:
[Through] an overview of the proceedings that have been and are being conducted in Israel for the criminal and civil investigation of the acts that took place … it can be deduced that there has been a genuine and real procedure, first administrative and then judicial, to ascertain the possible commission of an offence …
It cannot be claimed that an effective criminal investigation did not take place in the State of Israel based on the documentation provided by the Israeli authorities. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Quinto, p. 10.
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 … [that] constitute a set of guarantees that must inform the proceedings of the judicial bodies in a State respecting the rule of law …
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.
Spain’s LOAC Manual (1996) states that “any tribunal shall offer guarantees of independence and impartiality” and that “depriving a person of his right to be tried impartially” is a grave breach of the 1949 Geneva Conventions. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, §§ 8.7.c.(2) and 11.8.b.(1).
Spain’s LOAC Manual (2007) states: “All courts must offer guarantees of independence and impartiality … [as] 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 that “sentences may only be passed and penalties may only be executed pursuant to a judgment delivered by an impartial court”. 
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, § 1.4.
Spain’s Law on the Victims of the Civil War and the Dictatorship (2007) states:
As an expression of all citizens’ right to moral reparation and to the restoration of personal and family memory, the radically unjust nature of all convictions [and] sanctions … suffered for political, ideological or religious reasons during the Civil War as well as during the Dictatorship is hereby acknowledged and declared. 
Spain, Law on the Victims of the Civil War and the Dictatorship, 2007, Article 2(1).
The Law further states:
1. Tribunals, juries and every other criminal or administrative body established during the Civil War for the purpose of imposing personal convictions or sanctions for political, ideological or religious reasons and their decisions are hereby declared illegitimate.
2. Since they were unlawful and violated the most elementary rules enshrined in the right to a fair trial, the Tribunal for the Repression of Masonry and Communism, the Tribunal for Public Order, as well as the Tribunals for Political Responsibilities and Court Marshalls established for political, ideological or religious reasons in accordance with Article 2 of this law are hereby declared illegitimate.
3. Convictions and sanctions handed down for political, ideological or religious reasons by whichever criminal or administrative tribunal or body during the Dictatorship against those who defended the legality of the previous institutional framework and who strove to re-establish a democratic regime in Spain or who attempted to live in accordance with the rights and liberties recognised today by the Constitution are hereby declared illegitimate. 
Spain, Law on the Victims of the Civil War and the Dictatorship, 2007, Article 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.
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
… Article 17 of the [1998] … ICC Statute … lays down certain criteria on the admissibility and inadmissibility of hearing situations referred to it when certain conditions are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: … [t]he proceedings were not or are not being conducted independently or impartially. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 4–5.
In determining whether there has been a judicial process with the necessary guarantees, the court noted:
[Through] an overview of the proceedings that have been and are being conducted in Israel for the criminal and civil investigation of the acts that took place … it can be deduced that there has been a genuine and real procedure, first administrative and then judicial, to ascertain the possible commission of an offence …
In addition, calling into question the impartiality and the organic and functional separation of the Executive Power that the Israeli Military Prosecution Service, Israel’s State Prosecutor and the Investigative Commission named by the Government of Israel have, would be to ignore the evidence of the existence of the rule of law. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Quinto, p. 10.
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 to an impartial judge predetermined by law …
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.
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 … to the presumption of innocence (which implies … that the judge must form his opinion based on an evidentiary assessment carried out in full respect of the corresponding legal and constitutional exigencies). …
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.
Spain’s LOAC Manual (1996) provides: “Before a [disciplinary] decision is imposed, the accused prisoner shall be informed of the acts of which he is charged.” 
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, § 8.7.e.(2).
Spain’s LOAC Manual (2007) states: “Before any disciplinary award is pronounced, the accused must be given precise information regarding the offences of which he is accused.” 
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).
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 to be informed of the nature and cause of the accusation in a convenient manner …
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.
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.
Spain’s LOAC Manual (1996) provides that judicial criminal proceedings in occupied territory shall not last longer than the usual delay. 
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 that time limits are to apply to 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.
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
… Article 17 of the [1998] … ICC Statute … lays down certain criteria on the admissibility and inadmissibility of hearing situations referred to it when certain conditions are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: … [t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with the intention to bring the concerned person to justice. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 4–5.
In determining whether there has been a judicial process with the necessary guarantees in Israel, the court noted:
[Through] an overview of the proceedings that have been and are being conducted in Israel for the criminal and civil investigation of the acts that took place … it can be deduced that there has been a genuine and real procedure, first administrative and then judicial, to ascertain the possible commission of an offence. …
… In addition, there does not seem to be malicious or unjustified procedural delays that could interfere with the legitimate expectations of the parties to a fair and founded decision on the issues submitted to a judicial decision. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Quinto, p. 10.
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 … to be tried … without undue delay …
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.
Spain’s LOAC Manual (1996) states: “Before imposing a [disciplinary] decision, the accused prisoner … can explain his conduct and defend himself, including by presenting witnesses”. 
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, § 8.2.e.(2).
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 … to public proceedings …
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.
Spain’s LOAC Manual (1996) lists the “conditions and limits regarding proceedings” established by the law of war, inter alia, “remedies and appeal” and “time limits”. 
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 that “appeals and petitions” and “time limits” are to apply to 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 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. With regard to the Prosecution Service’s preliminary question on the inadmissibility of the appeal in question, the court held:
4. … An interpretation contrary to the feasibility of an appeal process … and a pronouncement on the substantive issues [of the case] would contradict … the fundamental right of the appellants to a due process, including the prohibition on a lack of a proper defence and the right to appeal.
It should be noted, in addition, that as judgement 4945/1990 of this Chamber of 20 January 1992 recalls, “Article 5(4) of the Law on Judicial Power [1985] establishes that the infringement of a constitutional precept is sufficient grounds for seeking an appeal if the process is to continue”. In addition, Article 5(7) of the same Law provides that “the rights and freedoms recognized in chapter 11 of title 1 of the Spanish Constitution are integrally binding on all judges and tribunals, and are guaranteed under their effective judicial protection”. It can be deduced from both provisions that any final order, the effects of which are equivalent to a sentence, must provide access to an appeal when [the order] has prevented access to the jurisdiction of the court in violation of constitutional rights. …
In addition, concerning the order to terminate the proceedings [currently under review] … the violation of the right to due process can take place not only when there is a person accused of the acts [of the case] but also when the prosecution has been circumvented by the court, thus denying the plaintiffs the possibility of defending their legitimate interests in a trial with all the [judicial] guarantees.
This broadening of the cases in which an appeal is possible, with regard to definite orders to terminate [proceedings] that affect fundamental rights, is a consequence of the “direct third-party effect of the fundamental rights” and of the general mandate of effective protection of these established in the cited Article 5(7)(1) of the Law on Judicial Power.
In the same sense, recent jurisprudence such as that emerging from STS 1172/20009 [Supreme Court judgement] of 22 October 2009 admits that the termination [of the proceedings] must be subject to an appeal, as its decision is equivalent to an acquittal …
As a result, the dismissal [of the proceedings] has denied the plaintiffs their right to a trial in which they could have defended their legally recognized interests, with a substantiation of facts that these could not contest, and despite the existence of prima facie evidence that the offences attributed to the defendants were carried out.
It is therefore appropriate to dismiss the … [preliminary question] of the Prosecution Service. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(I), Primero, § 4, p. 6; see also Section II(II), Tercero, §§ 1–2, p. 9.
[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.
Spain’s LOAC Manual (1996) provides: “Prisoners of war cannot be punished more than once for the same act or the same accusation.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 8.7.b.
Spain’s LOAC Manual (2007) states: “Prisoners of war may not be punished more than once for the same act or on the same charge.” 
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.b.
Spain’s Law on Judicial Power (1985), as amended in 2009, states:
2. … [Spanish courts] have jurisdiction over acts that constitute offences according to Spanish penal law even if these were committed outside the national territory, as long as those criminally responsible were Spanish nationals or foreigners who had acquired Spanish nationality prior to the commission of the act, and if the following conditions are met:
c. That the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence abroad. If he or she only completed it partly, this will be taken into account in order to proportionally reduce the [sentence] which he or she must complete.
4. Spanish courts have jurisdiction over offences committed by Spanish and foreign nationals outside the national territory, which constitute any of the following offences according to Spanish law:
h. Any other [act] that according to international treaties and conventions, in particular those Conventions on international humanitarian law and the protection of human rights, must be prosecuted in Spain.
Without prejudice to that disposed by the treaties and international conventions that Spain is a party to, in order for Spanish tribunals to have jurisdiction over the above-mentioned offences it must be demonstrated … that no other procedure leading to an investigation or effective prosecution, as the case may be, of the same punishable acts has been initiated in another country with jurisdiction or within an international tribunal.
The prosecution initiated before Spanish courts will be temporarily dismissed when it is established that another process on the denounced acts has been initiated in the country or tribunal referred to in the above paragraph.
5. If the prosecution is transferred to Spain according to the conditions in … paragraph 4, paragraph 2(c) of this article will in any case be applicable. 
Spain, Law on Judicial Power, 1985, as amended on 3 November 2009, Article 23(2)(c) and (4)(h) and (5).
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.
The Court noted:
B) With regard to the principle of universal justice, established in Article 23(4) of the L.O.P.J. [Law on Judicial Power (1985)], its applicability is not to be considered absolute …
a) In the legal framework, Article 23(5) of the L.O.P.J. establishes a first limitation, as Spanish courts have jurisdiction over offences committed by Spanish and foreign [nationals] outside the national territory, which may constitute acts that, according to international treaties and conventions, must be prosecuted in Spain … However, this is only the case provided that the offender has not been acquitted, pardoned or sentenced abroad or, in the latter case, has not completed his or her sentence or has only completed it partly (Article 23(2)(c) of the L.O.P.J.).
In addition, Article 17 of the [1998] … ICC Statute … offers certain criteria on the admissibility and inadmissibility to hear situations referred to it when certain circumstances are met.
In order to determine the willingness or unwillingness [of a State] to act in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: … [t]he proceedings were or are being undertaken. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
The Court further noted:
b) In jurisprudence, the principle of universal jurisdiction has also been qualified by important nuances.
a) The S.T.C. 237/05 [Constitutional Court judgement] of 26 September 2005 (Guatemala case) and STC 227/07 of 22 October 2007 (Falun Gong case) [judgement] have established the following criteria on the matter:
2.- Concerning the tension between the principle of concurrence and the principle of subsidiary [jurisdiction], it is noted that there are important reasons … that have resulted in the prioritization of the locus delicti, which is part of the body of International Criminal Law. Based on this fact, … it is true that … the principle of subsidiarity should not be seen as a rule opposed to, or diverging from, that which introduces the principle of concurrence as, in view of concurrent jurisdictions and in order to avoid the eventual duplication of processes and the infringement of the principle of ne bis in idem, the introduction of a rule of prioritization is indispensable. 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, pp. 5–6.