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warrants against the servicemen were no longer in force.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