This was a cassation appeal filed by the appellant, gunner Rafael, against a decision issued by the Second Territorial Military Court, which convicted the appellant of the crime of abandonment of his residence, provided for in art 56 of the Military Penal Code, and sentenced him to three months and one day in prison, with military suspension of employment, public office, and the right to vote. The appellant was granted medical leave for psychological reasons, which required him to stay at his residence in the city of Melilla (in a Spanish enclave on the northern coast of Africa surrounded by Morocco), but the appellant was absent from Melilla without authorisation from 23h59 on 25 June 2020 until 1h30 on 29 June 2020, when he took a Transmediterránea ferry trip from Melilla to Malaga on the Spanish mainland and back again.

The appellant argued, among other things, that his conviction failed to apply art 3 of UNCLOS, which provides that '[e]very State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention'.

Held: Appeal dismissed.

The appellant argues that the Court below failed to assess correctly the certificate issued by the master of the ferry, which stated that the time that it took to leave the territorial waters of the autonomous city of Melilla on its journey from Melilla to Malaga was 38 minutes.

As regards the territorial sea, art 2 of UNCLOS determines:

1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.

Without the need to delve into the special rules established by UNCLOS for the delimitation of the territorial sea or the regulation of innocent passage, it is obviously a mistake to attribute to a certain autonomous community or a local administration the possession of a specific territorial sea, since only the State, as a subject of international law, is recognised as exercising sovereign rights over its territorial sea, with a series of limitations in favour of the ships of the other States.

From the perspective of domestic law, the conclusion cannot be different. In case there may still be any doubt about the incorrectness of referring to the territorial sea of ​​Melilla or the jurisdictional waters of Melilla, it is enough to pay attention to arts 2 and 27 of Organic Law 2/1995 of 13 March, of the Statute of Autonomy of Melilla. While the second cited article determines that '[a]ll the powers of the city of Melilla shall be understood to refer to its territory', the first clarifies that '[t]he territory of the city of Melilla includes the current delimitation of its municipal territory' - territory that, by definition, does not include maritime waters.

The place where the appellant had been authorised to reside during his period of medical leave was not just anywhere in the autonomous city of Melilla, but specifically at 16 Ibáñez Marín Street.

It is therefore evident that the appellant abandoned his authorised place of residence. This is regardless of the voyage undertaken by the ferry, the Spanish territorial sea generated by the coast of Melilla, or by the coast of Malaga, or other maritime zones which the Kingdom of Spain holds or claims sovereignty over, such as the contiguous zone to the territorial sea and the exclusive economic zone, some of which, by the way, are generated through the territory of the city of Melilla, although these are the subject of litigation, not having been formally recognised by the Kingdom of Morocco.

The conclusion reached by the Court below must be considered not only reasoned but also reasonable, in the sense of not being illogical or arbitrary.