Court: European Court of Human Rights, Grand Chamber

Type of decision: Judgment

Date judgment: 20 November 2014

Application no.: 47708/08

Area of jurisdiction: –

Claim: Violation of Article 2 ECHR in its procedural aspect: the investigation into the death of Mr Azhar Sabah Jaloud had been insufficiently independent and insufficiently effective.

Principle legal argument(s): The members of the Netherlands patrol who had part in the incident and the members of Netherlands Royal Military Constabulary unit in Iraq who investigated the incident, shared their living quarters resulting in   insufficient distance between them;

Witnesses were not -or only cursorily- heard/prime suspect had opportunity to discuss the incident with the other witnesses beforehand and thus had opportunity to adapt his statement and had access to relevant information/missing documents in prosecution files/ inadequate autopsy and incomplete autopsy report.

Type of reparation sought:

The Netherlands must: 1) remedy the violation of Article 2 which occurred by performing, to the extent possible, another, more thorough investigation into   the death of Mr Azhar Sabah Jaloud; 2) prosecute those involved; 3) keep the applicant fully informed of both the   investigation and the prosecution, if applicable.

Applicant also claimed € 25,000 in respect of non-pecuniary damage.

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In the aftermath of the Iraqi war in 2003, a coalition of military forces, led by the United States (US) and the United Kingdom (UK), formed the Stabilization Force Iraq (SFIR) in order to rebuild Iraq through restoration of stability and security. In this context, a vehicle checkpoint was erected in an area in south-eastern Iraq where the UK was “lead nation”, holding command over the Dutch contingent of SFIR.

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In the early morning of 21 April 2004, an incident occurred where from inside a car shots were fired at members of the Iraqi Civil Defence Corps (ICDC) who were guarding a checkpoint and who returned fire. No one was hit and the car drove off. Called by the checkpoint commander, soon after the incident a patrol of six Netherlands soldiers led by Lieutenant A. arrived on the scene. Some fifteen minutes later a Mercedes car speedily approached the checkpoint. While hitting one of the barrels which had been set out in the middle of the road to form the checkpoint, the car continued to advance. Shots were fired at the car and the driver stopped. In this shooting, Mr Azhar Sabah Jaloud, seated in the front passenger seat of the car, died. The Royal Military Constabulary –attached to the Dutch military forces in Iraq- was asked to investigate this incident. In their capacity as military police or military police investigators, Royal Military Constabulary personnel are subordinate to the public prosecutor to the Regional Court of Arnhem/The Netherlands. The Dutch Public Prosecutor investigated the incident and declined to prosecute the suspect. In 2007, the applicant lodged a request with the Dutch Court of Appeal, but the Court of Appeal determined that the Public Prosecutor had rightly decided not to prosecute the suspect.

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Turning to the European Court of Human Rights, the victim’s father (the applicant) claimed that the investigation into the incident was a) insufficiently independent and b) insufficiently effective and therefore in breach of the Netherlands’ procedural obligations under Article 2 of the European Convention on Human Rights (ECHR) governing the right to life[1] (paras. 105-107).

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Jurisdiction

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The Dutch Government (the respondent) denied applicability of the ECHR, arguing that the Netherlands forces present in south eastern Iraq did not have the degree of control needed to bring the area within the jurisdiction of the Netherlands for the purposes of Article 1 ECHR[2]. More specifically, it was argued that the Netherlands – in contrast with the United States and the United Kingdom – was not an “occupying power” in Iraq and lacked public powers. Furthermore, the Netherlands set forth that the authority over the checkpoint rested with the members of the Iraqi security forces ICDC and not with the Netherlands military personnel present at the scene (paras. 112-120).

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However, the Court ruled that, although the jurisdiction of States is primarily territorial, it may be exercised outside the national territory in exceptional circumstances, inter alia when, as a consequence of (un)lawful military action, a Contracting State exercises effective control of an area outside its national territory. The Court goes on to state that the particular factual context is determinative for effective control, which here is primarily determined by considering the strength of the State’s military presence in the area (para. 139).

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Jurisdiction & international law

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Apart from the factual context, the Court also considers relevant rules of international law when assessing whether or not the Netherlands had jurisdiction over the checkpoint in this military operation. With reference to Article 42 of the Hague Regulations, the Court rules that whether or not a State is an “occupying power” is not per se determinative for having jurisdiction (para. 142). In other words, a State can have jurisdiction without having the status of occupying power. In addition, the agreements between the UK and the Netherlands that govern the allocation of Dutch military personnel to the UK in this part of south-eastern Iraq, show that the Netherlands had transferred operational control to the United Kingdom, and not exclusive control: the Netherlands retained full command over its own contingent, formulation of essential policy lay with the Netherlands, and the Netherlands assumed responsibility for providing security in that area, to the exclusion of other participating States. The fact that the check point was manned by the ICDC, does not divest the Netherlands from jurisdiction now that ICDC was supervised by and subordinated to the coalition forces (para. 142-150). This leads the Court to conclude that the Dutch contingent was not “at the disposal” of the UK and/or US, nor was it “under the exclusive direction or control” of any other State and thus the Netherlands had jurisdiction within the meaning of Article 1 of the Convention (para. 151).

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Jurisdiction & factual context

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Considering the factual context, the Court observes that Mr Azhar Sabah Jaloud was killed while advancing towards a checkpoint that was under the command and direct supervision of a Netherlands military patrol, set up for the purpose of asserting authority and control over persons passing through. This was within the limits of SFIR’s mission to restore conditions of stability and security conducive to the creation of an effective administration in the country. It follows that Mr Jaloud fell within the jurisdiction within the meaning of Article 1 of the Convention, of the Netherlands because he came within the sphere of authority and control established through the checkpoint (para. 152).

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Breach of Article 2 ECHR?

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Having determined that the Netherlands had jurisdiction and thus was bound by the rules of the ECHR, the Court must assess whether the Netherlands breached its investigative duty under Article 2 ECHR. The applicant complained that the Royal Military Constabulary failed to independently and effectively investigate his son’s death. While taking note of the difficult security conditions at the scene, the Court determines that the Netherlands where obliged to effectively investigate the breach of the right to life. This obligation of means, entails an investigation able to determine whether the force used was justified in the circumstances and must lead to the identification and possibly the punishment of those responsible. Practically, this means that the authorities must do their utmost to secure evidence (eye-witness testimony, autopsy etc.) and the persons responsible for and carrying out the investigations must be hierarchically and institutionally independent from those involved in the incident (para. 186). In addition, practical independence is required, which in this case was found to be established despite the fact that the Royal Military Constabulary unit shared its living quarters with Netherlands SFIR troops.

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Investigation & independence

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Applying these criteria to the case, the Court finds that the Royal Military Constabulary could perform the investigation independently, arguing inter alia that, although it shared its living quarters with the patrol members that where called after the first incident, the parties did not maintain close relationsthat could have affected the independence of the investigation (paras. 187-189). Nor does the Court find it established that the physical distance between the Royal Military Constabulary in Iraq and the public prosecutor in charge of its investigations located in the Netherlands, led to the subordination of the Royal Military Constabulary unit to the Netherlands Royal Army battalion commander on a day-to-day basis (para. 190).

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Investigation & effectiveness

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Firstly, the Court finds that relevant official records were not added to the file that was to be assessed by the Dutch judicial authorities, which seriously impaired the effectiveness of the judicial authorities’ examination of the case (para. 203). Secondly, the Court notes that the autopsy report had shortcomings and that the autopsy was done in the absence of a qualified Dutch official. Thirdly, important material evidence – the bullet fragments taken from the body – was mislaid in unknown circumstances. These things taken together lead the Court to the conclusion that the investigation had indeed been ineffective, and thus did not meet the standards of Article 2 EHCR (para. 227).

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Reparations

The applicant asked the Court to order the Government to “remedy the violations of Article 2” by performing another thorough investigation and to prosecute those involved. He also claimed 25,000 euros (EUR) in respect of non-pecuniary damage.

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Regarding the applicant’s request that an effective investigation be carried out, followed by  a prosecution, the Court held – relying on Article 41 ECHR – that the respondent State remains free to choose the means by which it will discharge its legal obligation to execute the judgment, provided that such means are compatible with the conclusions set out in the Court’s judgment, and that it is only in exceptional circumstances that the Court will indicate what steps should be taken (para. 234). As regards the monetary claims, the court awards the applicant a monetary compensation sum of € 25,000.-

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[1] Article 2 ECHR reads as follows:

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(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

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(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection

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[2] Article 1 ECHR on the obligation to respect Human Rights, reads:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

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