Cable sobre conversaciones con el juez Gómez-Bermudez y con el fiscal

En mayo de 2008, la embajada informa de que la Audiencia ha vuelto a archivar el procedimiento

ID: 153919
Date: 2008-05-14 17:11:00
Origin: 08MADRID542
Source: Embassy Madrid
Classification: UNCLASSIFIED//FOR OFFICIAL USE ONLY
Dunno: 07MADRID1000 07MADRID26
Destination: VZCZCXRO4434
PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV
DE RUEHMD #0542 1351711
ZNR UUUUU ZZH
P 141711Z MAY 08
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC PRIORITY 4771
RUEKJCS/SECDEF WASHDC PRIORITY
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
RUEHGB/AMEMBASSY BAGHDAD 0194
RUEHLA/AMCONSUL BARCELONA 3422
RUEAWJA/DEPT OF JUSTICE WASHDC
RHMFIUU/HQ USCENTCOM MACDILL AFB FL
RHMFISS/HQ USEUCOM VAIHINGEN GE
RUEKJCS/JOINT STAFF WASHDC
RUCNFB/FBI WASHDC

UNCLAS MADRID 000542

SENSITIVE
SIPDIS

EUR/WE FOR ALLEGRONE AND SAMSON
L/LEI FOR PROPP, KULISH AND JOHNSON

E.O. 12958: N/A
TAGS: PREL, PGOV, MARR, SP
SUBJECT: SPAIN/COUSO CASE: NATIONAL COURT DISMISSES CHARGES
AGAINST THREE U.S. SERVICEMEN

REF: A. 2007 MADRID 1000
B. 2007 MADRID 26

1. (SBU) On May 13, Judge Javier Gomez Bermudez, President of
the Criminal Division of the National Court, and Javier
Zaragoza, Chief Prosecutor of the National Court, phoned
Charge Llorens and informed him that earlier in the day the
National Court handed down a decision dismissing the case
against three U.S. servicemen charged with war crimes in the
June 2003 death in Baghdad of Spanish television cameraman
Jose Couso. Press reports appeared later in the day
confirming the 3-1 ruling of the four-judge panel, and the
Embassy was able to obtain a copy of the legal decision in
Spanish (electronic copy forwarded to L). On May 14, the
Charge spoke again with Judge Gomez Bermudez, who emphasized
the Spanish judiciary's commitment to rule on this case based
on the facts and the law and not on the prevailing "political
and media winds." The Judge said the red notices and arrest
warrants against the servicemen were no longer in force. He
also clarified for the Charge that the court's ruling
"provisionally" archiving the case (rather than giving it a
"permanent" filing) is actually to our benefit because it
precludes the case being appealed to the Spanish Supreme
Court. The Charge also spoke with Chief Prosecutor Zaragoza,
who reiterated that he never thought the Spanish judiciary
had legal jurisdiction over this (very weak, in his words)
case and was disappointed when the Supreme Court ruled
otherwise in late 2006 (REFTEL B).

2. (SBU) Our Embassy legal advisor has briefly reviewed the
case and agrees with Judge Gomez Bermudez' conclusions that
further appeals are not possible. She said that the ruling
is described as a "preliminary dismissal" (sobreseimiento
provisional). Such a ruling applies when one of the
following situations occurs: 1) A judge rules that it has not
been duly proven that an offense has been committed or 2)
When a crime is judged to have been committed but there is no
evidence to accuse a specific person. Under the Spanish
Criminal Code, this type of dismissal has no further appeals.
Although we will have a better understanding of the
ramifications of the decision after more careful review,
yesterday's ruling appears to be good news and hopefully is
one of the final steps needed to bring this long saga to a
close. The ruling states that the ultimate decision to
dismiss the case must now come from the examining magistrate.
According to the Embassy's legal advisor, unless the
magistrate can find specific intent on the part of the
servicemen to "terrorize" (a requirement of the Spanish
Criminal Code to judge a crime of war), he will have to close
the case. The family of Jose Couso announced after the
ruling that they still plan to press forward and will try to
appeal to the Supreme Court. They also said they have
unidentified "new witnesses" who will soon come forward to
testify and hopefully reopen the case.

//COMMENT//

3. (SBU) The Couso family is understandably very emotionally
attached to this case, and they are supported by a variety of
left wing causes and organizations in Spain. It is not
likely that yesterday's ruling, however legally devastating
it may have been to their side, will convince them to give
up. All indications from our contacts within the Spanish
judiciary and Embassy's legal advisor suggest that this case
can go no further; the indictments have been revoked and the
arrest warrants invalidated. We will report further as
warranted on Couso family efforts to try and keep this case
open. It would also be useful to confirm that Interpol and
Europol diffusions on the three individuals have been
removed, allowing them once again to travel freely.
Llorens

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