CASE OF JALOUD v. THE NETHERLANDS
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
Aleš Pejchal;Alvina Gyulumyan;András Sajó;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Gilbert Guillaume;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mark Villiger;Päivi Hirvelä;Zdravka Kalaydjieva
9. The applicant, Mr Sabah Jaloud, is an Iraqi national who was born in 1943 and lives in An-Nasiryah, Iraq. He is the father of the late Mr Azhar Sabah Jaloud, who died on 21 April 2004 at the age of twenty-nine. 10. On 21 April 2004, at around 2.12 a.m., an unknown car approached a vehicle checkpoint (VCP) named “B-13” on the main supply route “Jackson” north of the town of Ar Rumaytah, in the province of AlMuthanna, south-eastern Iraq. The car slowed down and turned. From inside the car shots were fired at the personnel guarding the VCP, all of them members of the Iraqi Civil Defence Corps (ICDC). The guards returned fire. No one was hit; the car drove off and disappeared into the night. 11. Called by the checkpoint commander, ICDC Sergeant Hussam Saad, a patrol of six Netherlands soldiers led by Lieutenant A. arrived on the scene at around 2.30 a.m. 12. Some fifteen minutes later a Mercedes car approached the VCP at speed. It hit one of several barrels which had been set out in the middle of the road to form the checkpoint, but continued to advance. Shots were fired at the car: Lieutenant A. fired 28 rounds from a Diemaco assault rifle; shots may also have been fired by one or more ICDC personnel armed with Kalashnikov AK-47 rifles (see paragraphs 21 and 49-52 below). At this point the driver stopped the car. 13. The applicant’s son, Mr Azhar Sabah Jaloud, was in the front passenger seat of the car. He had been hit in several places, including the chest. Netherlands soldiers removed him from the car and attempted to administer first aid. Despite this, Mr Azhar Sabah Jaloud died. He was declared dead one hour after the incident. 14. The body was subjected to X-ray examination. The radiographs show objects identified as metallic inside the chest and elsewhere. 15. An autopsy was performed by an Iraqi physician, who drew up a brief report in Arabic. Metal objects identifiable as bullet fragments were found in the body. 16. It was not determined by whom the bullet or bullets had been fired, nor from what weapon. 17. An official record by Sergeant First Class (wachtmeester 1e klasse) Schellingerhout of the Royal Military Constabulary (Koninklijke marechaussee), As-Samawah detachment, shows that a telephone call was received at 3.25 a.m. from the batallion operations room, reporting the shooting incident. A car had crashed into the VCP. Shots had been fired by Netherlands and Iraqi armed forces and the car’s passenger had been wounded. He had been taken to hospital. The Royal Military Constabulary was asked to investigate. 18. A seven-person Royal Military Constabulary duty group (piketgroep), accompanied by an interpreter, had left at 3.50 a.m. and arrived on the scene at around 4.50.a.m. Royal Military Constabulary Sergeants First Class Broekman and Van Laar had begun securing evidence at 5 a.m. Also at 5 a.m., the Royal Military Constabulary staff in The Hague and the public prosecutor of the Regional Court (rechtbank) of Arnhem were informed of the incident. 19. The body was seized by Royal Military Constabulary Warrant Officer (adjudant-onderofficier) Kortman at 7.30 a.m. and transported to the mobile hospital at Camp Smitty. At 11.45 a.m., after permission had been given in writing by a local court, the body was transported to the General Hospital in As-Samawah. The post-mortem examination was carried out in the absence of any police witness by an Iraqi physician. 20. The Mercedes car was seized at around 5.10 a.m. by Warrant Officer Kortman and later towed to Camp Smitty. 21. At around 7.50 a.m. Sergeant First Class Schellingerhout seized Sergeant Hussam Saad’s Kalashnikov AK-47 rifle; at around 11.55 a.m. he also seized Lieutenant A.’s Diemaco C7A1 rifle. Both weapons were later labelled and placed at the disposal of the Arnhem public prosecutor. 22. The following statements were submitted to the investigating and judicial authorities in the domestic proceedings. 23. On 21 April 2004, at around 5.05 a.m., Royal Military Constabulary Warrant Officer Mercx took a statement from the driver of the Mercedes car, Mr Dawoud Joad Kathim, with the aid of an interpreter. Mr Dawoud Joad Kathim admitted to having drunk two cans of beer, but no more, on the previous night, and did not consider himself to have been intoxicated. He stated that he had not noticed any checkpoint until it was too late to avoid hitting two barrels. It had been dark at the time, and there had been no lighting. To his complete surprise, his car had been fired at as he was driving through the checkpoint. His friend Mr Azhar Sabah Jaloud had been hit; Mr Dawoud Joad Kathim had heard him say that he was dying. He wished to submit a complaint because the checkpoint had not been clearly marked. 24. On 21 April 2004, at around 5.15 a.m., Royal Military Constabulary Sergeant First Class Weerdenburg took a statement from ICDC Sergeant Hussam Saad The latter stated that he had reported shooting from a car at around 2.10 a.m.; Lieutenant A. had arrived at approximately 2.30 a.m. Sergeant Hussam Saad had gone to look for spent cartridges with Lieutenant A., another Netherlands soldier and the interpreter. He had suddenly heard a bang and seen a car approaching from the direction of Ar Ruyaythah. The car had continued to move forward, despite being ordered to stop. He had then heard shooting from the left side of the road. He had not, however, fired any rounds himself. 25. Sergeant First Class Weerdenburg next questioned the other Iraqi soldiers, but they provided no pertinent information. 26. On 21 April 2004, at around 7 a.m., Royal Military Constabulary Sergeant Klinkenberg took a statement from Mr Walied Abd Al Hussain Madjied, an interpreter working with the ICDC. The interpreter had been accompanying Lieutenant A.’s patrol between two checkpoints. After arriving at VCP B1.3 and being told about the first shooting incident by ICDC Sergeant Hussam Saad, he had joined Lieutenant A. and others in the search for spent cartridges. He had suddenly heard the sound of barrels falling over, turned around and seen a car approaching. He had shouted “stop, stop, stop” but the car had driven on. Across the road from where he was standing, a Netherlands soldier had fired at the car. After the car stopped, he had assisted its occupants by providing interpretation. The passenger’s left arm had been covered in blood and the driver had smelled of alcohol. 27. On 21 April 2004, at around 9.30 a.m., Royal Military Constabulary Sergeant First Class Van Laar and Sergeant Klinkenberg took a statement from Infantry Sergeant (sergeant) Teunissen. Arriving at VCP B1.3 at 2 a.m., he had been given information by the ICDC sergeant. Together with his lieutenant, the ICDC sergeant and the interpreter, he had gone up the road to look for spent cartridges. At a distance of approximately 100 metres from the VCP hut, he had turned around, startled by a sound. He had seen a car drive into the VCP at speed; when the car had passed the VCP, he had heard shooting from the VCP. The four of them had dived for cover. When the car had reached their level, shots had been fired from across the road, where the lieutenant was positioned. He had shouted “Stop firing”, but that had not been heard. When the firing stopped, the car had also stopped. The passenger had been bleeding from the lower body and the left shoulder. Sergeant Teunissen and Private Finkelnberg had removed him from the car, laid him on the ground and bandaged his wounds. He and Lieutenant A. had attempted to resuscitate the passenger until told by the doctor that there was no longer any point. 28. On 21 April 2004, at around 11.15 a.m., Royal Military Constabulary Sergeants First Class Broekman and Van Laar heard Lieutenant A. under caution. Lieutenant A. stated that he was responsible for monitoring two vehicle checkpoints, one of which was VCP B1.3 on the Jackson road north of Ar-Rumaythah. After the first shooting incident had been reported, he had arrived at VCP B1.3 at around 2.30 a.m.; he had been intending to reconnoitre the area on foot, together with Sergeant Teunissen and the ICDC sergeant. At around 2.45 a.m. he had been startled by a noise. Looking behind him, he had seen two blazing car headlights approaching. Shots had then been fired from the direction of the car; on hearing them, he had dived for cover on the verge of the road. He had been convinced that shots were being fired from inside the car. When the car had reached his level, he had cocked his weapon; when it had just passed, he had started to shoot at its rear. He had fired 28 cartridges in aimed fire. He had been responding to the danger arising from his having been fired at first. He had fired the entire contents of a magazine, 28 rounds; this had taken approximately seven seconds. The passenger being wounded, he and Sergeant Teunissen had attempted to resuscitate him until help arrived. By that time there had been no pulse. Shortly afterwards, the company commander had arrived; Lieutenant A. had briefed him. 29. On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Warrant Officer Kortman and Sergeant First Class Broekman took a statement from Private Finkelnberg. At 2 a.m. on 21 April 2004 he had arrived with Lieutenant A. and Sergeant Teunissen, among others, at VCP B1.4, where the ICDC sergeant reported to Lieutenant A. that there had been a shooting incident at VCP B1.3. The patrol had therefore gone to that checkpoint, arriving at 2.30 a.m. Lieutenant A., Sergeant Teunissen, the ICDC sergeant and the interpreter had gone up the road towards Hamza to look for spent cartridges. A dark-coloured motorcar had approached at high speed and driven past him through the checkpoint, hitting some barrels in the road. Through his image intensifier he had seen Lieutenant A., to the left of the road, going for cover; he had then seen muzzle flashes from several weapons on the left side of the road and heard shots from that direction. The firing was in single shots. At a certain moment he had seen the car stop. While the shots were being fired, he had heard Sergeant Teunissen shout “Stop firing”. He had gone up to the vehicle and cut the passenger’s clothes loose. While Sergeant Teunissen administered first aid, he had searched the car for weapons. He had found an icebox containing an almost empty bottle of alcoholic drink. He had then joined Sergeant Teunissen and Lieutenant A. in their attempts to resuscitate the passenger until the latter was declared dead. He was critical of Lieutenant A. for firing while his own troops were on the opposite side of the road and for firing so many rounds, and also of the ICDC for firing in the general direction of their own personnel. 30. On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Sergeant Major (opperwachtmeester) Wolfs and Sergeant First Class Van Laar took a statement from Cavalry Sergeant (wachtmeester) Quist. On 21 April 2004 at around 2 a.m. he had been at VCP B1.4 with Lieutenant A. and the other members of his patrol unit, which had been led by Sergeant Teunissen. There had been shooting at VCP B1.3 and they had gone there. Upon arrival, he had noticed no ICDC personnel manning the checkpoint, but had seen a group of people to the left of the road opposite the hut. After Cavalry Sergeant Quist had parked his vehicle, Lieutenant A., Sergeant Teunissen, the interpreter Walied and the ICDC sergeant had walked off north to look for spent cartridges. At a certain point, he had seen a car approaching at high speed from Ar-Rumaythah; when the car reached the checkpoint, it had hit some of the barrels or rocks placed there. He had heard automatic gunfire from where the ICDC members were, which had then stopped. There had been further firing approximately 100 metres distant from him, but he could not tell who was firing up ahead. He did think that there had been firing from a plurality of weapons. He had seen the vehicle stop 50 metres away. He had made a situation report. He had seen Lieutenant A. and Sergeant Teunissen trying to resuscitate the victim. 31. On 23 April 2004, at around 3.35 p.m., Royal Military Constabulary Sergeant First Class Broekman and Warrant Officer Kortman took a second statement from Lieutenant A. The latter stated that the very last time he had seen the ICDC sergeant the latter had been at the checkpoint, fiddling (klungelen) with his AK-47 rifle. Lieutenant A. had told the sergeant not to point the rifle at him. On the subject of the firing incident, he stated that as far as he remembered he had probably lain on a flat part of the road; he had not fired from a standing position. He had performed mouth-to-mouth resuscitation on the wounded passenger of the car and remembered him tasting of alcohol. The ICDC deputy company commander had given him a list of names of the ICDC personnel who had fired their weapons and the corresponding numbers of cartridges, and had asked for replacement ammunition. 32. On 22 April 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Heijden examined the car seized by Warrant Officer Kortman the day before. It was a black Mercedes Benz 320 E AMG. It had black number plates with markings in Arabic script; these visibly covered white number plates bearing black letters in Latin script and numerals. The car had damage consistent with hitting foreign objects at speed. The rear window was shattered. Holes were found in the rear of the car, in the body on the right and left sides, and in the seats. Metal tips were found in various places; one, identified as a bullet fragment, had clearly passed through the passenger seat. The conclusion was that the car had been fired on from both the left and the right; from the left, with a weapon firing ammunition smaller than 6 mm calibre and, from the right, with a weapon firing ammunition larger than 6 mm calibre. The precise firing angles relative to the car could not, however, be determined. 33. On 9 May 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Klinkenberg took receipt of a CD-ROM containing X-rays of Azhar Sabah Jaloud’s body. These showed fragments of metal in the left chest cavity, the left hip and the left lower arm. The Xrays had been made by Warrant Officer Dalinga, X-ray technician at Camp Smitty, As-Samawah, Al-Muthanna province. 34. The file contains photocopies of the above-mentioned X-rays and of photographs. They are accompanied by descriptions, contained in an official report by Warrant Officer Kortman. The photographs include pictures of a road and a checkpoint area, some taken by daylight, some apparently taken at night. Several of the photographs show cartridges lying on the ground, including some described as 7x39mm (as fired by the Kalashnikov AK-47 rifle), both spent and live, and a quantity of spent cartridges stated to be 5.56x45mm (as fired by the Diemaco C7A1 rifle) in a pile close together. Others show a male body with wounds to an arm, the upper left quarter of the back and the right buttock. Further pictures show a dark-coloured Mercedes motorcar; details are included of holes in the bodywork and upholstery that could be bullet holes. 35. On 22 April 2004 ICDC Lieutenant Colonel Awadu Kareem Hadi, the commanding officer of 603 ICDC Battalion, sent a report from his batallion headquarters to the headquarters of the Iraqi police. It reads as follows (rough handwritten translation, from Arabic into English, submitted by the applicant): “The details of the accident which is happened at date (20/04/2004) and information coming from the first batallion (Ar-Rumaytha) and the details are: At the hour (21.05 [sic] after the midnight) from the date (20/04/2004) [sic] a car type (Mercedes) coming by high speed directed from (Al Hamza) to (Al Nassiriya) and when the car is reached to the location of the checkpoint does not stop and making a crash with the obstacles present in checkpoint and he was carelessness and the soldiers shouting on him and calling to stop and he is continued and does not stop and after that Dutch soldiers see that there is no way and shoot on him and then injured person ([Azhar Sabah Jaloud]) then he is died and he was sitting near the driver. With our greetings [signed] Lieutenant Colonel Awadu Kareem Hadi A copy to / PJCC” 36. An official report by Royal Military Constabulary Warrant Officer Voorthuizen, dated 21 June 2004, states that on 2 June 2004 a document was received in Arabic, which, translated orally by an interpreter, was identified as a report by the Baghdad police. The report stated that three metal fragments had been examined in Baghdad at the request of the AlMuthanna police with a view to identifying the ammunition from which they had come and the weapon from which they had been fired; however, the provenance of the metal fragments could not be determined, as they were too few in number. A copy of a document in Arabic was attached to Warrant Officer Voorthuijzen’s report. It is not stated in whose custody the metal fragments had been left or where they were being stored. 37. On 21 April 2004 Mr Dawoud Joad Kathim, the driver of the Mercedes car, lodged a complaint with the Iraqi police against the troops who had fired at his car. It appears from the statement, as taken down in writing, that Mr Dawoud Joad Kathim was under the misapprehension that the foreign troops involved had been Polish rather than Netherlands. Mr Dawoud Joad Kathim also put on record that he had been told by the interpreter to say that all of the shots had been fired by the ICDC, whereas in fact he had not seen any shots fired by ICDC personnel. 38. After the Chamber’s relinquishment of jurisdiction to the Grand Chamber, the Government provided an official record of the following statements taken from the ICDC members. The following is a sworn translation subsequently submitted by the applicant: “Name: A Saad Mossah Weapon number: GL 5574 Ammunition: 4 X 30 cartridges ‘During the second incident I was lying in a position with all-round security. I saw that a car was travelling at high speed towards the checkpoint from the direction of Ar Rumaytha. I saw that it rammed into two drums by the checkpoint and simply continued going. My commander [ICDC Sergeant Hussam Saad] walked forwards together with the interpreter and two Dutch soldiers and then I heard a large number of shots fired. I myself did not fire any shots. I cannot tell you any more than this.’ Name Haider Shareef Weapon number UE 0481 1984 Ammunition 4 Cartridge clips and 120 cartridges in total ‘1 cannot tell you anything about the first incident because I was asleep at the time in the watch hut. During the second incident I was standing by the vehicle checkpoint and I saw a Mercedes Benz driving towards the checkpoint. I saw that the Mercedes Benz rammed into two oil drums and drove on in the direction of Hamsa. I heard the Dutch soldiers shouting stop, stop, and then I heard shots being fired. I saw nothing else because I was standing behind a hut on the opposite side to the watch hut.’