THIRD SECTION
DECISION
Application no. 73911/16
María Cristina LARRAÑAGA ARANDO against Spain
and 3 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 25 June 2019 as a Chamber composed of:
Vincent A. De Gaetano, President,
Georgios A. Serghides,
Paulo Pinto de Albuquerque,
Alena Poláčková,
María Elósegui,
Gilberto Felici,
Erik Wennerström, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants, all of whom are Spanish nationals, is set out in the appendix.
2. The Spanish Government (“the Government”) were represented by their Agent, Mr R.-A. León Cavero, State Attorney.Background to the facts giving rise to the applications
3. The applicants are the relatives of persons who lost their lives in France as a result of attacks allegedly perpetrated by terrorist groups between 1979 and 1985[1].
4. The applicant in application no. 73911/16 is the widow of Enrique Gómez Álvarez, allegedly killed by members of the Batallón Vasco Español (“the BVE”) on 25 June 1979.
5. The applicants in application no. 233/17 are the brothers of José María Echaniz Maiztegui, allegedly killed by members of the Grupos Antiterroristas de Liberación (“the GAL”) on 25 September 1985.
6. The applicant in application no. 3086/17 is the mother of Ángel Gurmindo Lizárraga, allegedly killed by members of the GAL on 8 February 1984.
7. The applicants in application no. 5155/17 are the widow and the children of Justo Elizarán Sarasola, who died on 5 October 1979 after allegedly being shot by members of Acción Nacional Española (“ANE”) or Grupos Armados Españoles (“the GAE”) on 13 September 1979.
8. In application no. 5155/17 the perpetrators, four French nationals, were convicted by the Assize Court of the département of Pyrénées-Atlantiques in France on 12 December 1980. In application no. 233/17, the perpetrators, two French nationals, were convicted by a French court in 1987. In the remaining applications, the identity and nationality of the perpetrators were unknown.
9. Since the applicants were relatives of victims of a violent offence perpetrated by terrorist groups, they were entitled under Spanish law to obtain a compensation payment for their relatives’ killings. Pursuant to Law no. 32/1999 of 8 October 1999 on Solidarity with Victims of Terrorism, a lump sum of 23,000,000 pesetas (EUR 138,232.78) was awarded to the relatives of the deceased, except those in application no. 5155/17, who never requested such compensation in Spain. In accordance with Law no. 32/1999, the State was subrogated to the rights of the individuals compensated against those civilly responsible for the terrorist attack. For this purpose, the beneficiaries had to transfer the corresponding civil legal actions to the State.
10. The applicant in application no. 73911/16 was also granted a special lifelong allowance, under Royal Decree no. 851/1992 of 10 June 1992, which regulates certain special allowances for victims of terrorist attacks.
11. According to information available on the website of the Basque Government’s Secretariat for Human Rights, Coexistence and Cooperation[2], all the applicants’ relatives, except for the applicants’ relative in application no. 5155/17, appear to have been victims of terrorist groups and, at the same time, members of the terrorist organisation ETA. The applicants’ relative in application no. 5155/17 was named as having been member of ETA in an information document published by the Basque Government’s Secretariat for Peace and Coexistence in December 2014. It does not appear from the file that the applicants objected to their late relatives’ publicly recognised membership in ETA before the Basque authorities.
12. The Government submitted that none of the individuals concerned had been arrested by the Spanish authorities prior to their death, either for having escaped to or for hiding in France, and that therefore they could not have been prosecuted and convicted for belonging to ETA.Domestic proceedings
13. In 2012 the applicants applied for additional compensation from the State for the death of their relatives under Law no. 29/2011 of 22 September 2011 on the Recognition and Comprehensive Protection of Victims of Terrorism[3]. The amount claimed was EUR 111,767.22, the amount payable in the event of death (EUR 250,000), less the amount already received by each family under the previous legislation (see paragraph 9 above). The claims for this additional compensation were filed with the Ministry of Interior’s General Directorate for Support to Victims of Terrorism following the entry into force of Law no. 29/2011.
14. In 2013 the General Directorate refused to award the applicants the additional compensation claimed, on the basis of Article 3 bis § 2 of Law no. 29/2011 and the European Convention of 24 November 1983 on the Compensation of Victims of Violent Crimes, which came into effect in Spain on 1 February 2002 after ratification (see “Relevant domestic law and practice”). It relied on reports produced in 2012 and 2013 by the General Directorate of the Police and the General Directorate of the Civil Guard (Guardia Civil), which indicated that the applicants’ relatives had been members of ETA. It therefore concluded that the applicants did not meet the requirements of the current legislation, in particular those set out in Article 8 of the European Convention on the Compensation of Victims of Violent Crimes, which had been directly applicable in the Spanish legal system since its ratification and publication. The provision provided that compensation of victims of violent crimes could be “reduced or refused on account of the victim’s or the applicant’s involvement in organised crime or his membership of an organisation which engages in crimes of violence”.
15. According to the reports produced by the General Directorate of the Police included in the administrative files, the following facts were established in respect of each of the deceased individuals:
- The applicant’s husband in application no. 73911/16 had been a member of ETA from 1975 to 1979. He had been responsible for recruiting and training commandos in France and arrested by the French authorities on 23 January 1975 when training other members.
- The applicants’ brother in application no. 233/17 had been a member of ETA. He had been responsible for commandos in the Vitoria area (Spain).
- The applicant’s son in application no. 3086/17 had been a “liberated” member of ETA (member who was known to the police, was on ETA’s payroll and worked full-time for ETA) close to its main leader (D.I.A.). In 1981 he had been arrested on three occasions in France for unlawful possession of firearms, his last sentence having been three months’ imprisonment.
- The applicants’ relative in application no. 5155/17 had been part of an ETA commando of “liberated” members in Guipúzcoa (Spain) from 1974 to 1975. In 1979, in France, he had trained members of a commando and given information about a politician and a nuclear power plant for possible terrorist attacks.
16. Some of the applicants lodged administrative appeals with the Ministry of the Interior, which were dismissed.
17. All the applicants then instituted judicial proceedings (recurso contencioso-administrativo) against the decisions of the Ministry of the Interior.
18. The Audiencia Nacional (Administrative Chamber) dismissed the appeals and upheld the decisions taken by the Ministry of the Interior. The relevant part of the judgment delivered on 24 June 2015 in application no. 73911/19 reads as follows:
“SIXTH.- The first additional provision of Law no. 29/2011 deals with “Retroactive application to those who have previously obtained benefits and compensation”, without further specification, providing that “persons who, prior to the enactment of this Law, have received a total aggregate sum for compensation, or have been paid, when applicable, the amounts for civil liability established in a final judicial decision, less than the amount provided for in Annex I of this Law, may request payment of the differences to which they may be entitled, within a year of entry into force of the implementing regulation of the Law.”
In the present case, the claimant was awarded compensation for the death of Enrique Gómez Alvarez, pursuant to Law no. 32/1999 of 8 October on Solidarity with Victims of Terrorism, by means of a decision issued by the Ministry of the Interior of 4 September 2000, which amounted to EUR 138,232.79.
On the other hand, Article 8 § 2 of the European Convention on the Compensation of Victims of Violent Crimes, no. 116, adopted in 1983 by the Council of Europe, reads as follows: “Compensation may also be reduced or refused on account of the victim’s or the applicant’s involvement in organised crime or his membership of an organisation which engages in crimes of violence”.
That European Convention was ratified by Spain on 20 October 2001 and entered into force on 1 February 2002, following its publication in the State Official Gazette on 29 December 2001.
That is to say, since the date of publication in the State Official Gazette onwards, the European Convention has been part of Spanish law, and is directly applicable in accordance with Article 1 § 5 of the Civil Code.
Notwithstanding the foregoing, Law no. 29/2011 of 22 September, following the wording of Law no. 17/2012 of 27 December on the State General Budget for 2013, and in accordance with the regulation contained in the European Convention, expressly contemplates the internal applicability of this international rule by providing in Article 3 bis § 2 that the “granting of aid and benefits recognised in this Law shall be subject to the principles set forth in the European Convention on the Compensation of Victims of Violent Crimes”. Also, the ninth transitory provision of Law no. 17/2012 of 27 December provides that “the amendment of Law no. 29/2011 of 22 September on the Recognition and Comprehensive Protection of Victims of Terrorism, introduced by the twenty-seventh final provision, shall have effect from 23 September 2011.”
Such reference to the European Convention on the Compensation of Victims of Violent Crimes shall be considered essential when applying Law no. 29/2011 of 22 September, and even though its purpose, as mentioned, is to cover the difference between new benefits and those already received for the same cause, the provisions of the above-mentioned European Convention cannot be overlooked so that in the present case Law no. 29/2011 should not be applicable. Furthermore, it should be reiterated that the entry into force of the European Convention after its publication in the State Official Gazette on 29 December 2001 has already made it inapplicable.
SEVENTH.- In the case under consideration, it is noteworthy that the deceased was a member of the terrorist group ETA. In accordance with reports produced by the General Directorate of the Guardia Civil and the General Directorate of the Police on 12 December 2012 and 28 December 2013 respectively (pages 14 and 10) ...
This matter was not categorically refused by the claimant, who merely questions its certainty, even though she recognises that “he escaped from Spain because he was disseminating propaganda and feared being arrested”.
...
It is to be noted that in Fact no. 4 of the claim the applicant declares that “the reports (those of the General Directorate of the Guardia Civil and the General Directorate of the Police mentioned above) suggest that Enrique Gómez Alvarez was killed by the Batallón Vasco Español, a terrorist group acting in France and Spain at that time”. Nevertheless, those reports also point out that Enrique Gómez Alvarez was a member of ETA, but the claimant only takes into consideration what benefits her and ignores or refuses what adversely affects her, which from a logical and legal point of view, should be rejected, because without proof of his membership in ETA, it cannot be determined that his death was caused by a terrorist group, which is the basic factual requirement to be recognised as a victim of terrorism.
This requirement is met where “neither the victim nor the applicant takes part in organised crime or belongs to an organisation which engages in crimes of violence”.
In the present case, and having regard to the foregoing, it has been sufficiently proved that the victim took part and was a member of such an organisation.
Thus, contrary to what has been stated by the applicant that a final judgment is necessary, it should be noted that the perpetration of criminal offences has neither been attributed nor imputed to those responsible for them, in defiance of constitutional safeguards, because the documents examined have not been used as sufficient evidence to support a criminal conviction, but merely to meet the necessary factual requirement to grant a benefit or compensation whose scope of application, in accordance with the applicable regulation, is limited to specific conditions, one of which is the victim’s lack of involvement or membership of an organisation devoted to perpetrating violent crimes. This is a question that must unescapably be addressed by the Chamber under the terms set out therein.
This being so, it is easy to understand that the compensation already paid to the applicant was awarded at a time when the European Convention was not applicable in Spain. On the contrary, once the application for compensation has been lodged with the European Convention in force, its application is unavoidable as the positive law applicable to the present case.”
19. The judgments delivered by the Audiencia Nacional in the remaining applications were based on similar considerations.
20. During the proceedings before the Audiencia Nacional, the State Attorney submitted additional reports produced by the General Directorate of the Police and the General Directorate of the Guardia Civil referring to supplementary evidence proving the alleged ETA membership of the applicants’ late relatives. The reports referred mainly to the following sources: statements made by other alleged members of ETA to the police when they were arrested, in which they said that the applicants’ relatives had been members of ETA and described their participation in its activities and criminal actions, several publications on the history of ETA (produced by publishing houses allegedly close the organisation) in which the applicants’ relatives were named as being members of the organisation, and articles published by the press.
21. In applications nos. 233/17 and 3086/17, the reports mentioned that there had been criminal convictions against the applicants’ late relatives by the French courts. It appears that the convictions concerned the unlawful possession of firearms (no. 233/17, one conviction in 1985 resulting in three months’ imprisonment) and participation and collaboration with an illegal association, with reference to ETA (no. 3086/17, two convictions in 1977 and 1981 respectively).
22. The applicants lodged amparo appeals with the Constitutional Court, invoking a breach of Article 24 § 2 of the Constitution (right to the presumption of innocence), and in some cases also Article 24 § 1 (right to effective protection by the judges and courts). The applicants relied in their appeals on Article 6 § 2 of the Convention and the Court’s case-law in respect of that provision (see, for example, Puig Panella v. Spain, no. 1483/02, 25 April 2006, among other judgments).
23. The Constitutional Court declared the appeals inadmissible owing to the non-existence of a violation of the fundamental rights invoked or of a fundamental right protected by the amparo appeal. The decisions were delivered on 30 May (application no. 73911/16), 6 July (application no. 3086/17) and 18 July 2016 (applications nos. 233/17 and 5155/17) respectively, and were served on the applicants on 7 June (application no. 73911/16), 11 July (application no. 3086/17) and 27 July 2016 (applications nos. 233/17 and 5155/17) respectively.Relevant domestic law and practice
24. The relevant provision of the Spanish Constitution reads as follows:
Article 24
“2. Likewise, everyone shall have the right of access to a judge of ordinary jurisdiction, as predetermined by law, to defend himself and to be assisted by a lawyer, to be informed of the charges against him, to have a public trial without undue delay and attended by all safeguards, to use the evidence relevant to his defence, not to incriminate himself, not to admit guilt and to be presumed innocent.
...”
25. The European Convention on the Compensation of Victims of Violent Crimes, which opened for signature in Strasbourg on 24 November 1983, was ratified by Spain on 31 October 2001. It came into force in Spain on 1 February 2002, after being published in the State Official Gazette on 29 December 2001. The passages of that Convention relevant to the present case read as follows:
Article 2
“1. When compensation is not fully available from other sources the State shall contribute to compensate:
a. those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence;
b. the dependants of persons who have died as a result of such crime.
2. Compensation shall be awarded in the above cases even if the offender cannot be prosecuted or punished.”
Article 8
“1. Compensation may be reduced or refused on account of the victim’s or the applicant’s conduct before, during or after the crime, or in relation to the injury or death.
2. Compensation may also be reduced or refused on account of the victim’s or the applicant’s involvement in organised crime or his membership of an organisation which engages in crimes of violence.
3. Compensation may also be reduced or refused if an award or a full award would be contrary to a sense of justice or to public policy (ordre public).”
26. The Explanatory Report to the European Convention on the Compensation of Victims of Violent Crimes was prepared by a committee of governmental experts under the authority of the European Committee on Crime Problems and submitted to the Committee of Ministers of the Council of Europe. Its relevant passages read as follows:
“III. Commentary on the Articles of the Convention
...
Article 8
33. Whereas Article 7 contains an objective criterion for reducing or withholding compensation, Article 8 allows compensation to be reduced or withheld where the victim is at fault.
34. a. Improper behaviour of the victim in relation to the crime or to the damage suffered
There is frequent evidence of a degree of interaction between the victim’s behaviour and the offender’s. The first paragraph of Article 8 refers to cases where the victim triggers the crime, for example by behaving exceptionally provocatively or aggressively, or causes worse violence through criminal retaliation, as well as to cases where the victim by his behaviour contributes to the causation or aggravation of the damage (for example by unreasonably refusing medical treatment).
Refusal to report the offence to the police or to co-operate with the administration of justice may also give grounds for reducing or withholding compensation.
35. b. Membership of criminal gangs or of organisations which commit acts of violence
Where the victim belongs to the world of organised crime (for example drug trafficking) or of organisations which commit acts of violence (for example terrorist organisations), he may be regarded as forfeiting the sympathy or solidarity of society as a whole. As a consequence, the victim may be refused compensation or be paid reduced compensation, even if the crime which caused the damage was not directly related to the foregoing activities.
36. c. Compensation repugnant to the sense of justice or contrary to public policy (ordre public)
States which introduce compensation schemes usually want to retain some discretion in awarding compensation and to be able to refuse it in certain cases where it is clear that a gesture of solidarity would be contrary to public feeling or interests or would be contrary to the basic principles of the legislation of the State concerned. This being so, a known criminal who was the victim of a crime of violence could be refused compensation even if the crime in question was unrelated to his criminal activities.
37. The principles justifying the withholding or reduction of compensation are valid not only in respect of a victim in person but also in relation to dependents of a victim who has died as a result of a violent crime.”
27. Law no. 29/2011 of 22 September 2011 on the Recognition and Comprehensive Protection of Victims of Terrorism (“Law no. 29/2011”) entered into force on 23 September 2011. Its Preamble reads as follows:
“The present Law enables Spanish society, through its legitimate representatives in the Congress of Deputies and the Senate, to pay tribute to victims of terrorism and to express its ongoing commitment towards all those who have suffered or might suffer from terrorism in the future, in whatever form. This Law is therefore not only a sign of recognition and respect for their memory, but also a gesture of deserved solidarity. Inspired by the principles of remembrance, dignity, justice and truth, the comprehensive support being sought through this Law represents the joint effort of redress that the victims and their families deserve.
In fact, remembrance, dignity, justice and truth are the core principles on which the provisions of this Law are based, and which, ultimately, seek to provide full reparation to victims. Based on these four core principles, the State reiterates its commitment to bringing about a definitive defeat to all forms of terrorism, unconditionally and without concessions. ...”
28. The relevant provisions of Law no. 29/2011 read as follows:
Article 4 – Persons entitled to rights and benefits
“The following persons shall be entitled to the rights and benefits regulated in this Law:
1. Deceased persons or persons having suffered physical or psychological harm as a result of terrorist acts and who are considered as victims of terrorism for the purpose of this Law.
2. Persons that, in the event of the death of the victim referred to in the previous paragraph, and in accordance with the terms agreed and priority order set forth in Article 17 of this Law, may be entitled to financial assistance or rights on the grounds of family ties, cohabitation or dependency relationship with the deceased person.
...”
Article 17 – Compensation for death
“In the event of death, the sums referred to in Annex 1[4] shall be paid.
In accordance with Article 4 § 2, persons entitled to this right shall be, in order of priority:
a) The spouse of the deceased, if they were not legally separated, or the cohabitee having lived for at least two years with the deceased immediately before his or her death, unless they had children together, in which case mere cohabitation shall suffice; and the children of the deceased.
b) In the absence of the above, parents, grandchildren, siblings and grandparents of the deceased shall be the beneficiaries, in successive order of mutually exclusive precedence.
...”
First Additional Provision – Retroactive application to those who have
previously obtained grants and compensation
“Persons who, prior to the enactment of this Law, have received a total aggregate sum for compensation, or have been paid, when applicable, the amounts for civil liability established in the final judicial decision, less than the amount provided for in Annex I of this Law, may request payment of the differences to which they may be entitled, within a year of entry into force of the implementing regulation of the Law.”
29. Law no. 17/2012 of 27 December 2012 on the State General Budget Law for 2013 introduced Article 3 bis to Law no. 29/2011. The relevant passage of Article 3 bis reads as follows:
Article 3 bis Requirements for the granting of aid and benefits
recognised in this Law
“2. The granting of aid and benefits recognised in this Law shall be subject to the principles set forth in the European Convention on the Compensation of Victims of Violent Crimes.”
30. In accordance with the ninth transitory provision of Law no. 17/2012, the amendment to Law no. 29/2011 had effect from 23 September 2011.
31. In a reasoned decision (auto) of 27 February 2017 (appeal no. 5656-2015), the Constitutional Court examined an amparo appeal lodged by a claimant in a case similar to the present one, in which the administrative and judicial authorities had dismissed a claim for additional compensation under Law no. 29/2011 on similar grounds. It declared the appeal inadmissible owing to the non-existence of a violation of the right to the presumption of innocence. The Constitutional Court examined the Court’s case-law (see, among other authorities, Allen v. the United Kingdom [GC], no. 25424/09, ECHR 2013) and concluded that there was no link between the two sets of proceedings at issue (the compensation proceedings and the previous criminal proceedings) such as to engage Article 6 § 2 of the Convention. In its view, the subsequent compensation proceedings had not been “necessary concomitants of” or a “direct sequel to” the previous criminal proceedings. It held that in the compensation proceedings the criteria and the language used by the administrative and judicial authorities had been necessary and confined to verifying whether the exclusion clause in Article 8 § 2 of the European Convention on the Compensation of Victims of Violent Crimes was applicable to the particular case, without containing any finding of guilt. A judge appended a dissenting opinion to the decision, which another judge joined.
32. Being a member of a criminal organisation is a criminal offence under Article 570 bis of the Criminal Code 1995 currently in force. Being a member of a terrorist organisation or group is a criminal offence under Article 572 of that Code.
33. Under the Criminal Code 1973 (in force at the time of death of the applicants’ relatives), being an active member of an illegal association, the aim of which was to commit crimes or to promote their commission, was a criminal offence (Article 174). Under Organic Law no. 9/1984 of 26 December 1984 on Measures against armed groups and terrorist or rebel activities (which entered into force on 4 January 1985), membership of a terrorist organisation or an armed group was a criminal offence.
COMPLAINT
34. The applicants complained that the reasons given by the domestic authorities for dismissing their compensation claims under the legislation for victims of terrorism had breached their late relatives’ right to be presumed innocent. They stressed that the reasoning used by the domestic authorities had contained a finding that their late relatives had been members of an organisation such as ETA, which constituted a criminal offence under Spanish law. They relied on Article 6 § 2 of the Convention.
THE LAWJoinder of the applications
35. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly.Alleged violation of Article 6 § 2 of the Convention
36. The applicants complained that the reasons given by the domestic authorities for dismissing their compensation claims under the legislation for victims of terrorism had breached their late relatives’ right to be presumed innocent. They relied on Article 6 § 2 of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”The parties’ submissions
37. The Government observed that the applicants’ late relatives had not been subject to any criminal proceedings. Their possible criminal responsibility had been extinguished by their death, so they could not be subject to criminal proceedings in the future either. They claimed that there had been no connection between the administrative proceedings concerning the additional compensation claims brought by the applicants and the right of their relatives to be presumed innocent in any criminal proceedings. In their view, what had been at stake in the compensation proceedings had been whether the legal requirements to obtain additional compensation for the death of their relatives had been met, which included verifying whether the deceased relatives had been members of ETA and fell under the exception provided by Article 8 of the European Convention on the Compensation of Victims of Violent Crimes. They contended that in the context of those proceedings, and for the sole purposes of applying Article 8 of that Convention, the reports relied on by the domestic authorities had collected all the existing evidence from different sources (statements made by other ETA members, press news, publications related to ETA and information from the French authorities) proving that the deceased individuals had belonged to ETA. They submitted that the proceedings had not required the institution of criminal proceedings resulting in a criminal conviction against the applicants’ relatives. They further argued that it would have been contrary to the sense of justice and to the feelings of ETA’s victims to award the additional compensation claimed by the applicants. The Government therefore invited the Court to conclude that the present applications were manifestly ill-founded because they fell outside the subjective and objective scope of application of Article 6 § 2 of the Convention, or alternatively, to find that there had been no breach of Article 6 § 2.
38. The applicants disputed the argument that there had been no link between the administrative compensation proceedings and the criminal proceedings and contended that Article 6 § 2 had been applicable to the proceedings at issue. They stressed that the fact that the majority of cases in which the Court had applied Article 6 § 2 to subsequent non-criminal proceedings had concerned the former accused’s request for compensation for detention on remand or other inconveniences caused by the prior criminal proceedings did not mean that it could not be applied to other types of proceedings. In their view, since the legislation at issue excluded from the compensatory scheme victims of crimes who were themselves members of a criminal organisation (membership being a specific criminal offence in itself), this exclusion could only be based on a criminal conviction for that charge and not on mere suspicions contained in police reports. The applicant in application no. 73911/16 also emphasised that her late husband had never been subject during his lifetime to any criminal prosecution or arrest warrant in Spain.The Court’s assessment
(a) The applicants’ standing
39. The first question to be addressed is whether the applicants have standing as “victims” of the alleged violation of Article 6 § 2 of the Convention. The Court notes that the applicant in application no. 73911/16 is the widow of the late Enrique Gómez Álvarez. The applicants in application no. 233/17 are the brothers of the late José María Echaniz Maiztegui. The applicant in application no. 3086/17 is the mother of the late Ángel Gurmindo Lizárraga. The applicants in application no. 5155/17 are the widow and children of the late Justo Elizarán Sarasola. All the applicants’ late relatives were allegedly declared guilty of belonging to ETA after their death in the subsequent compensation proceedings brought by the applicants under the Spanish legislation for victims of terrorism. This declaration was allegedly the grounds used by the domestic authorities for not awarding the compensation claimed by the applicants in relation to the killing of their relatives. In line with its well-established case-law, the Court considers that the applicants may have a non-pecuniary interest in having their late relatives exonerated from any finding of guilt, as well as a pecuniary interest in their capacity as claimants of a right to compensation for their death under the Spanish legislation (see, mutatis mutandis, Nölkenbockhoff v. Germany, 25 August 1987, § 33, Series A no. 123, Vulakh and Others v. Russia, no. 33468/03, §§ 26-28, 10 January 2012, and Demjanjuk v. Germany, no. 24247/15, § 22, 24 January 2019). In these circumstances, the Court finds that the applicants may claim to be “victims” of the alleged violation of Article 6 § 2 of the Convention.
(b) Applicability of Article 6 § 2
40. The Court reiterates that, as expressly stated in the terms of the Article itself, the protection afforded by Article 6 § 2 applies where a person is “charged with a criminal offence” within the autonomous meaning of Article 6 (see Adolf v. Austria, 26 March 1982, § 30, Series A no. 49, and Stirmanov v. Russia, no. 31816/08, §§ 37-38, 29 January 2019). A “criminal charge” within the autonomous meaning of Article 6 §§ 1, 2 and 3 exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; Ismoilov and Others v. Russia, no. 2947/06, §§ 162-64, 24 April 2008, in an extradition context; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-11, ECHR 2017). In the absence of a “criminal charge”, where no such criminal proceedings are, or have been in existence, Article 6 § 2 has been found not to be applicable (see Zollman v. the United Kingdom (dec.), no. 62902/00, ECHR 2003‑XII; Blake v. the United Kingdom (dec.), no. 68890/01, §§ 123-24, 25 October 2005; Gogitidze and Others v. Georgia, no. 36862/05, 12 May 2015; and Sharxhi and Others v. Albania, no. 10613/16, § 178, 11 January 2018). In such circumstances, statements attributing criminal or other reprehensible conduct are relevant rather to considerations of protection against defamation and adequate access to court to determine civil rights and raising potential issues under Articles 8 and 6 § 1 of the Convention (see Zollman, cited above, and Ismoilov and Others, cited above, § 160).
41. Article 6 § 2 safeguards the right to be “presumed innocent until proved guilty according to law”. The Court has acknowledged in its case‑law the existence of two aspects to the protection afforded by the presumption of innocence: a procedural aspect relating to the conduct of the criminal trial, and a second aspect, which aims to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged (see, generally, Allen v. the United Kingdom [GC], no. 25424/09, §§ 93-94, ECHR 2013, and G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 314, 28 June 2018). Under the first aspect, the presumption of innocence imposes requirements in respect of, inter alia, the burden of proof, legal presumptions of fact and law, the privilege against self-incrimination, pre-trial publicity and premature expressions, by the trial court or by other public officials, of a defendant’s guilt (see Allen, cited above, § 93, and Lizaso Azconobieta v. Spain, no. 28834/08, §§ 37-39, 28 June 2011).
42. The second aspect of the protection of the presumption of innocence comes into play when the criminal proceedings end with a result other than a conviction (see, for example, Tendam v. Spain, no. 25720/05, §§ 35-41, 13 July 2010, and Vlieeland Boddy and Marcelo Lanni v. Spain, nos. 53465/11 and 9634/12, §§ 38-49, 16 February 2016). In such cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair‑trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory (see Allen, cited above, § 94). The Court has found that “following discontinuation of criminal proceedings the presumption of innocence requires that the lack of a person’s criminal conviction be preserved in any other proceedings of whatever nature” (see Allen, cited above, § 102). What is also at stake once the criminal proceedings have ended is the person’s reputation and the way in which that person is perceived by the public. To a certain extent, the protection afforded under Article 6 § 2 in this respect may overlap with the protection afforded by Article 8 (see, for example, Zollman v. the United Kingdom (dec.), no. 62902/00, ECHR 2003‑XII, and Taliadorou and Stylianou v. Cyprus, nos. 39627/05 and 39631/05, §§ 27 and 56-59, 16 October 2008).
43. In order for the second aspect of Article 6 § 2 to be applicable to subsequent proceedings, the Court requires an applicant to demonstrate the existence of a link between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant’s participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant’s possible guilt (see Allen, cited above, § 104).
44. In the present case, the Court notes that the applicants’ complaint concerns the dismissal by the domestic authorities of their additional compensation claims for the death of their late relatives on the grounds that their relatives had been members of ETA. In their view, without their late relatives having previously been proved guilty according to law of that charge, the domestic authorities’ decisions to refuse compensation, including the reasoning and language used therein, were incompatible with the presumption of innocence. In this connection, the Court considers that what comes into play in the present case is the second aspect of Article 6 § 2 of the Convention, the role of which is to prevent the principle of the presumption of innocence from being undermined after the relevant criminal proceedings have ended with an outcome other than a conviction (such as an acquittal, discontinuation of the criminal proceedings as statute-barred, the death of the accused, and so on). The Court’s task is therefore to examine whether there was a link between any prior criminal proceedings that might have existed against their late relatives concerning their alleged membership of ETA and the compensation proceedings brought by the applicants. In this context, the Court will examine whether each of applicants’ late relatives had been “charged with a criminal offence” for the purposes of their complaint under Article 6 § 2. It is not the Court’s role in determining these issues under Article 6 § 2 to take a stand on the applicants’ entitlement to compensation.
(i) As regards applications nos. 73911/16 and 5155/17
45. The Court notes that the applicants’ late relatives in applications nos. 73911/16 and 5155/17 do not appear to have been subject to any formal criminal investigation in Spain prior to their death in 1979 (see, conversely, Vulakh and Others v. Russia, no. 33468/03, §§ 6-8 and 33, 10 January 2012). The reports on which the administrative and judicial authorities relied to dismiss the compensation claims did not refer to any specific criminal investigation file or prosecution against them, besides the single fact that the applicant’s husband in application no. 73911/16 had been arrested in France on 23 January 1975 (see paragraph 15 above). In this connection, it has not been submitted that this arrest was carried out in connection with any pending criminal investigations in Spain or any extradition requests from the Spanish authorities. All the evidence cited in the reports was based on non-official publications (books and press) and declarations made by other alleged members of ETA incriminating the applicants’ relatives (see paragraph 20 above). Furthermore, the applicant herself in application no. 73911/16 insisted that her late husband had never been subject to any criminal prosecution or arrest warrant in Spain. Thus, it follows that there was no “criminal charge” within the meaning of the Court’s case-law (see paragraph 40 above) made by the Spanish authorities against the applicants’ relatives.
46. Hence, in the Court’s view, the domestic decisions taken in the compensation proceedings at issue could not be said to have cast doubt on any previous criminal proceedings in which the persons concerned had been “charged with a criminal offence” within Spain for the purposes of Article 6 § 2 (see, mutatis mutandis, Blake, cited above, § 124). As a result, Article 6 § 2 was not applicable to the compensation proceedings at issue.
(ii) As regards application no. 233/17
47. As regards the applicants in application no. 233/17, the Court notes that the only criminal proceedings that appear to have been instituted against the applicants’ late brother were conducted in France and concerned the unlawful possession of firearms, a different charge from that of membership of a terrorist or criminal organisation (see paragraphs 32 and 33 above). In the context of those proceedings, the applicants’ late brother was sentenced to three months’ imprisonment by a French court (see paragraph 21 above). It does not appear from the file that these procedural steps were taken in connection with either pending criminal investigations in Spain against him or specific extradition requests submitted by the Spanish authorities concerning the criminal charge of membership of an organisation such as ETA (see, conversely, Ismoilov and Others, cited above, §§ 162-64, where a close link was established between criminal proceedings pending in Uzbekistan and extradition proceedings in Russia in respect of the same individuals and concerning the same criminal charges).
48. The Court reiterates that the right to be presumed innocent under Article 6 § 2 arises only in connection with the particular offence “charged” (see, mutatis mutandis, V. v. Finland, no. 40412/98, § 88, 24 April 2007). Accordingly, even assuming that the criminal proceedings in France against the applicants’ late brother could be taken into account for the purposes of establishing a link with the compensation proceedings brought by the applicants in Spain, the Court observes that that the applicants’ late brother had not been “charged” in France with the same criminal offence in respect of which they claimed the protection of the presumption of innocence in the context of the latter proceedings. As a result, Article 6 § 2 was not applicable to the compensation proceedings at issue.
(iii) As regards application no. 3086/17
49. As regards the applicant in application no. 3086/17, the Court observes that the police reports produced in the context of the compensation proceedings before the Audiencia Nacional referred to two previous criminal convictions in France against the applicant’s son for participating and collaborating with an illegal association, with reference to ETA (in 1977 and 1981; see paragraph 21 above). It does not appear from the file that these criminal proceedings were taken in connection with either pending criminal investigations in Spain against him or specific extradition requests submitted by the Spanish authorities (see, conversely, Ismoilov and Others, cited above, §§ 162-64). No other criminal proceedings appear to have been instituted against the applicant’s late son in Spain prior to his death.
50. Even assuming that the criminal proceedings in France against the applicant’s late son could be taken into account for the purposes of establishing a link with the compensation proceedings brought by the applicant in Spain, the Court reiterates that the protection afforded by the presumption of innocence ceases once an accused has properly been proved guilty of the offence charged with (see Phillips v. the United Kingdom, no. 41087/98, § 35, ECHR 2001-VII, and Allen, cited above, § 106). Therefore, as the applicant’s late son was previously convicted in France of an equivalent charge to that in respect of which the applicant claimed the protection of the presumption of innocence (membership of an organisation such as ETA), the Court considers that Article 6 § 2 could not apply in respect of that charge in the context of the compensation proceedings at issue.
(iv) Conclusion
51. On the basis of the foregoing, the Court considers that Article 6 § 2 was not applicable to the compensation proceedings brought by the applicants in Spain.
52. The Court therefore concludes that the applications are incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), and therefore inadmissible in application of Article 35 § 4 of the Convention.
For these reasons, the Court
Decides, unanimously, to join the applications;
Declares, by a majority, the applications inadmissible.
Done in English and notified in writing on 18 July 2019.
Fatoş AracıVincent A. De Gaetano
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
1
73911/16
29/11/2016
María Cristina LARRAÑAGA ARANDO
30/07/1954
Ascain
María José GURRUCHAGA BASURTO
2
233/17
23/12/2016
Mikel ECHANIZ MAIZTEGUI
05/03/1959
Urretxu
Xabier ETXANIZ MAIZTEGI
28/09/1956
Urretxu
Iñigo IRUIN SANZ
3
3086/17
20/12/2016
Ignacia LIZÁRRAGA ALDABURU
31/07/1920
Olazagutia
Iñigo IRUIN SANZ
4
5155/17
26/12/2016
María Belén AGUILAR PÉREZ
05/10/1955
San Sebastián
Ugaitz ELIZARÁN AGUILAR
10/08/1976
Bilbao
Aitor ELIZARÁN AGUILAR
30/06/1979
San Sebastián
Iñigo IRUIN SANZ
[1]. According to reports from the Ministry of the Interior, the killings of the applicants’ relatives were attributed to the following terrorist groups: the Batallón Vasco Español (“the BVE”), the Grupos Antiterroristas de Liberación (“the GAL”), Acción Nacional Española (“ANE”) and Grupos Armados Españoles (“the GAE”). The BVE was a right-wing group active from 1975 to 1981, primarily in the French Basque Country. The GAE was a right-wing group active from 1979 to 1980. The GAL was active from 1983 to 1987. It has been proven that some of the actions attributed to the GAL were financed by officials within the Spanish Ministry of the Interior to fight ETA, under Spanish Socialist Workers Party (PSOE)-led governments (see, for instance, concerning the criminal conviction of the former State Secretary for Security at the Ministry of the Interior, Rafael Vera, and the former Minister of the Interior, José Barrionuevo, for misappropriation of public funds and kidnapping, Vera Fernández-Huidobro v. Spain, no. 74181/01, §§ 8-10, 49 and 61-62, 6 January 2010; see also Saiz Oceja and Others v. Spain, no. 74182/01 and Others (dec.), 2 May 2007, concerning the conviction of three police officers on the same facts; see Vaquero Hernández and Others v. Spain, nos. 1883/03 and 2 others, §§ 8-10 and 54, 2 November 2010, concerning the criminal conviction of the applicants, four Guardia Civil officers and the former Civil Governor of Guipúzcoa, for the premeditated murder of two presumed members of ETA and unlawful imprisonment).
[2]. http://www.euskadi.eus/web01-apvictim/es/o11aConsultaWar/victima?locale=es (last accessed on 24 June 2019)
[3]. In application no. 233/17, the original claimant was the father of José María Echaniz Maiztegui. After the claimant’s death in 2014, the applicants (the victim’s brothers) continued the compensation proceedings before the domestic courts.
[4]. Compensation in the event of death: EUR 250,000.
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