Соответствующая норма
Spain
Practice Relating to Rule 100. Fair Trial Guarantees
Section A. General
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.
