THIRD SECTION
DECISION
Applications nos. 75529/16 and 79503/16
Karmele MARTÍNEZ AGIRRE and Nagore OTEGI MARTÍNEZ against Spain and
Maria Antonia IBARGUREN ASTIGARRAGA against Spain
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 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.
A. Background to the facts giving rise to the applications
3. The applicants are the relatives of people who lost their lives in France as a result of attacks allegedly perpetrated by terrorist groups in 1985[1].
4. The applicants in application no. 75529/16 are the wife and daughter of Juan María Otegui Elicegui, allegedly killed by members of the Grupos Antiterroristas de Liberación (“the GAL”) on 2 August 1985.
5. The applicant in application no. 79503/13 is the mother of José Sabino Echaide Ibarguren, allegedly killed by members of the GAL on 25 September 1985.
6. In application no. 79503/16, the perpetrators, two French nationals, were convicted by a French court in 1987. In application no. 75529/16, the identity and nationality of the perpetrators were unknown.
7. 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. 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.
8. One of the applicants in application no. 75529/16 (the wife of the deceased) also received a grant of 10,000,000 pesetas (EUR 60,101.21) as a result of a national lottery draw held to help victims of terrorism in 1997.
9. According to information available on the website of the Basque Government’s Secretariat for Human Rights, Coexistence and Cooperation[2], the applicants’ relatives appear to have been victims of the GAL and, at the same time, members of the terrorist organisation ETA. It does not appear from the file that the applicants objected to their late relatives’ publicly recognised membership of ETA before the Basque authorities.
10. 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. It appears however from the documents submitted by the Government (police reports included in the administrative and judicial proceedings) that the applicants’ relatives had been subject to detention and/or criminal investigation in Spain before moving/fleeing to France (see paragraph 18 below).
B. Domestic proceedings
11. 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. 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 7 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.
12. 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”.
13. 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 applicants’ relative in application no. 75529/16 had been a member of ETA and had participated in several murders and terrorist attacks committed in Spain from 1976 to 1980. He had been arrested in France in January 1979 and deported to the Provence region.
- The applicant’s son in application no. 79503/16 had been a member of ETA and had been arrested in San Sebastian (Spain) in 1979 accused of being member of a commando. In 1983 he had joined a commando of “liberated” members (members who were known to the police, were on ETA’s payroll and worked full-time for ETA).
14. The applicants lodged administrative appeals with the Ministry of the Interior, which were dismissed.
15. The applicants then instituted judicial proceedings (recurso contencioso-administrativo) against the decisions of the Ministry of the Interior.
16. 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. 79503/16 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 the 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 José Sabino Echaide Ibarguren, 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 24 April 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.
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, where it is stated that José Sabino Echaide Ibarguren was “a member of ETA, that he died with three other members of the terrorist group when they were shot on 25 September 1985 in a bar in Bayonne (France), an action attributed to the Grupos Antiterroristas de Liberación (“the GAL”)” (page 22) ...
In a report produced by the General Directorate of the Police it is stated as follows: “Member of military ETA. In 1979 he was detained in San Sebastian accused of being part of an information commando and in 1983 joined a commando of ‘liberated’ members”.
Furthermore, in a report of the ... General Directorate of the Guardia Civil, dated 9 March 2014, which is part of the file, it is stated as follows:
“On 31 October 1979, José Sabino Echaide Ibarguren was detained in San Sebastian (Guipúzcoa) for his presumed links with ETA. He was brought before a judge and placed in detention.
On 23 May 1980, he was released from the prison in Soria and granted bail at 200,000 pesetas, being subject to investigation no. 107/79 by investigating judge no. 2 of the Audiencia Nacional for cooperation with an armed group.
On 11 August 1982, central investigating judge no. 2 of the Audiencia Nacional issued a search an arrest warrant within investigation no. 44/1982 for murder.
...
José Sabino ECHAIDE UBARGUREN is named as an “ETA activist” in volume VII of the encyclopedia “EUSKADI ETA ASKATASUNA” (ETA), published by Txalaparta. The publication explains in eight volumes the history of ETA during the years 1952-1992, from the point of view of the terrorist group and of the structures and organisations which form its support network.
...
This report, being the result of in-depth research by the security forces of the State, details in an exhaustive way the activities of José Sabino Echaide Ibarguren, as a member of the terrorist group ETA.
Even if no credibility was given to the declarations of the detainees, on the grounds that their statements were given to the Guardia Civil or the Police without the necessary safeguards, as maintained by the claimant in her written observations to the said report, without the assistance of a lawyer (an unproven fact), we have at our disposal the sources of the milieu (entorno) of the terrorist group, volume VII of the encylopedia which was found on the computer of ...,the head of the “political apparatus” of ETA ....
That is to say, besides the information given by the Guardia Civil and the Police, the terrorist organisation itself recognises José Sabino Echaide Ibarguren as its member. Therefore, all the arguments used by the claimant to deny that fact are unsuccessful.
... in the present proceedings, there is no evidence rebutting the certainty of what is expressed in those documents.
...
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.”
17. The judgment delivered by the Audiencia Nacional in application no. 75529/16 on 15 July 2015 was based on similar considerations.
18. During the judicial 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 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 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. It appears from these reports that the applicants’ relative in application no. 75529/16 had allegedly participated in the commission of several terrorist attacks and murders, and that in 1980 central investigating judge no. 2 of the Audiencia Nacional had issued two search and arrest warrants against him in connection with the investigation of some of those crimes. The applicant’s late son in application no. 79503/16 had been detained in San Sebastian on 31 October 1979 accused of being a member of an ETA commando, placed in pre-trial detention and released on 23 May 1980. He had been investigated for collaboration with ETA and murder in the context of criminal investigations opened by central investigating judge no. 2 of the Audiencia Nacional, who had issued a search and arrest warrant against him on 11 August 1982 for murder (see paragraph 16 above). The applicant’s late son had also admitted to the police while in detention in 1979 that he had been a member of a commando since August 1978.
19. 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 application no. 75529/16 also Article 24 § 1 (right to effective protection by the judges and courts). The applicants relied 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).
20. The Constitutional Court declared the appeals inadmissible owing to the non-existence of a violation of the fundamental rights invoked (application no. 75529/16) or of a violation of a fundamental right protected by the amparo appeal (application no. 79503/16). The decisions were delivered on 30 May (application 75529/16) and 22 June 2016 (application no. 79503/16) respectively, and were served on the applicants on 7 June (application no. 75529/16) and 24 June 2016 (application no. 79503/16) respectively. In its decision of 30 May 2016 (application no. 75529/16), the Constitutional Court noted that the applicants had failed to present evidence to challenge the reports submitted by the administrative authorities.
C. Relevant domestic law and practice
21. 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...”
22. 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).”
23. 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.”
24. 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 ...”
25. 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[3] 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 the payment of the differences to which they may be entitled, within a year of entry into force of the implementing regulation of the Law.”
26. 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.”
27. 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.
28. 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.
29. Being a member of a criminal organisation is a criminal offence under Article 570 bis of the Criminal Code of 1995 currently in force. Being a member of a terrorist organisation or group is a criminal offence under Article 572 of that Code.
30. Under the Criminal Code of 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
31. 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 LAW
A. Joinder of the applications
32. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly.
B. Alleged violation of Article 6 § 2 of the Convention
33. 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.”
1. The parties’ submissions
34. 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.
35. The applicants in application no. 75529/16 argued that Article 6 § 2 could apply to administrative proceedings such as the proceedings at issue in the present case. They stressed that the presumption of innocence could only have been rebutted in the context of those proceedings on the basis of previous decisions taken by the competent courts following the examination of all the evidence available, and not on mere suspicions contained in police reports.
36. The applicant in application no. 79503/16 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 the 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 the 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.
2. The Court’s assessment
(a) The applicants’ standing
37. 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 applicants in application no. 75529/16 are the widow and daughter of the late Juan María Otegui Elicegui, and that the applicant in application no. 79503/16 is the mother of the late José Sabino Echaide Ibarguren. Both 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
(i) General principles
38. 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).
39. 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).
40. 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).
41. 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).
42. In the past, the Court has been called upon to consider the application of Article 6 § 2 to judicial decisions taken following the conclusion of criminal proceedings, either by way of discontinuation or after an acquittal (see the list of examples in Allen, cited above, § 98).
(ii) Application of the general principles to the present case
43. 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 the 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.
44. The Court notes at the outset that the police reports on which the domestic authorities based their findings referred to previous criminal investigations opened in Spain in connection with the applicants’ relatives’ involvement in ETA and its activities and crimes. The applicants’ relative in application no. 75529/16 had been subject to two criminal investigations opened by the Spanish courts for terrorist attacks and murder, in the context of which the latter had issued two search and arrest warrants in 1980 (see paragraph 10 above). The applicant’s son in application no. 79503/16 had been arrested in 1979 accused of being a member of an ETA commando and placed in pre-trial detention until 23 May 1980; he had then been subject to two criminal investigations for collaboration with ETA and murder (see paragraph 10 above). In respect of the latter investigation, the Spanish judicial authorities had issued a search and arrest warrant in 1982. In both cases, it appears that the arrest warrants were not enforced because the applicants’ relatives had fled to France, and that they never stood trial in Spain. However, given that these criminal investigations were related either to membership of ETA or active participation in its crimes and activities, the Court is ready to accept that the applicants’ relatives had been “charged with a criminal offence” in Spain within the autonomous meaning of this term and in respect of the criminal charge for which the applicants claimed the protection of the presumption of innocence.
45. The Court further observes that although the parties have not submitted any information on the formal discontinuation of those investigations or proceedings, the applicants’ relatives were killed in 1985 and their possible criminal liability was extinguished by their death, as admitted by the Government. The Court therefore assumes that the criminal proceedings against the applicants’ late relatives were discontinued as a result of their death (compare Vulakh and Others, §§ 8 and 33, and Demjanjuk, § 9, both cited above).
46. The Court’s task at this stage of its analysis is to examine whether there was a link between the discontinued criminal proceedings against the applicants’ late relatives and the compensation proceedings brought by the applicants for their killings, having regard to the general considerations set out above (see paragraph 41 above). In this connection, the Court observes that the compensation proceedings brought under Law no. 29/2011 were administrative in nature and aimed at determining whether the applicants had a right to obtain additional compensation from the State for the killings of their relatives by terrorist groups in 1985. The subject matter of those proceedings was legally and factually different from that of the criminal proceedings or investigations instituted against their relatives prior to their death for alleged participation or collaboration with ETA.
47. The Court notes that the administrative proceedings at issue did not concern the applicants’ right to compensation for detention on remand or other inconveniences caused by the previous criminal investigations instituted against their late relatives, or request the reimbursement of costs incurred during those proceedings (see, conversely, Englert, § 35; Nölkenbockhoff, § 35; and Tendam, §§ 36-38; all cited above; see also Rupp v. Germany (dec.), nos. 60879/12 and 60892/12, §§ 64-65, 17 November 2015). In cases concerning these issues, the Court found that the rulings on the applicants’ entitlement to costs and/or compensation were “consequences and necessary concomitants of”, or a “direct sequel to”, the conclusion of the criminal proceedings (see Englert, § 35, and Nölkenbockhoff, § 35, both cited above) or that the applicants’ compensation claim “not only followed the criminal proceedings in time but was also tied to those proceedings in legislation and practice, with regard to both jurisdiction and subject matter” (see O. v. Norway, no. 29327/95, § 38, ECHR 2003‑II). In the case of Allen (cited above) concerning a compensation claim for a miscarriage of justice following the quashing of a prior conviction, Court observed that the domestic authorities had been required to have regard to the judgment in the criminal proceedings when making and reviewing the decision on compensation, and therefore concluded that there existed a link between the previous criminal proceedings and the subsequent compensation proceedings (see Allen, cited above, §§ 107-08).
48. Unlike in those cases, the Court notes that in the present case the Ministry of the Interior and the courts in the judicial proceedings were not required under Law no. 29/2011, in order to examine whether the applicants should be awarded compensation, to have regard to the contents or the outcome of the previous criminal proceedings. In fact, this Law, as well as the exclusion clause in Article 8 § 2 of the European Convention on the Compensation of Victims of Violent Crimes on which the domestic authorities relied, did not require that the alleged membership of the person concerned of a criminal/violent organisation be established by a previous criminal conviction following criminal proceedings. This is shown by the fact that in other cases in which compensation was refused under this Law, the individuals concerned had never been subject to criminal proceedings for involvement or membership of such an organisation[4]. The domestic authorities could in practice rely on other sources of evidence, such as non-official publications on the history of the terrorist organisation in which those persons were named as having been members, as well as statements made by other alleged members of ETA. In other words, the domestic authorities could in practice establish that the individuals concerned had been members of ETA for the purposes of the compensation proceedings, regardless of any previous conviction in Spain for membership of a terrorist organisation.
49. The Court observes that in the present case, while the police reports on which the domestic authorities relied on contained some references to the previous criminal investigations concerning the applicants’ late relatives for alleged involvement or participation in ETA activities (see paragraphs 10, 13 and 16 above), these were not the only elements taken into account for establishing that the latter had been members of ETA. The police reports also relied on non-official publications allegedly close to the organisation in which the individuals concerned were named as being members of ETA, as well as on statements made by other alleged members of the organisation. Therefore, it does not appear that the contents or the outcome of those previous criminal investigations against the applicants’ relatives were decisive for the impugned proceedings.
50. In any event, the Court notes that the Ministry of the Interior and the Audiencia Nacional did not engage in a review or evaluation of the concrete evidence included in the criminal files against the applicants’ relatives. Nor did they analyse the decisions taken by the investigating authorities in those proceedings or reassess the applicants’ relatives’ participation in the events leading to the criminal charges at issue. The domestic courts limited themselves to taking into account, among other elements, the previous criminal investigations instituted against the applicants’ relatives as mentioned in the police reports. The Court also takes note of the Government’s argument that those investigations could not have led to a prosecution or conviction in Spain prior to their death owing to the fact that they had fled to France.
51. Lastly, the Court notes that the Audiencia Nacional stated in its judgment of 24 June 2015 (application no. 79503/16) that the purpose of the compensation proceedings had been to determine whether the applicant had a right to compensation in accordance with the applicable regulations concerning victims of terrorism, which provided an exception where the alleged victims had been members of an organisation devoted to perpetrating violent crimes. It explicitly distinguished this issue from the question of criminal liability of the applicant’s relative, which was not a matter for examination in the context of the compensation proceedings. The Court accepts that the rules of evidence and the burden of proof before administrative courts may be different from those applicable in the context of criminal proceedings.
52. The Court therefore concludes that the applicants have not demonstrated the existence of the necessary link between the discontinued criminal proceedings against their relatives and the compensation proceedings brought by them (see, mutatis mutandis, Kaiser v. Austria (dec.), no. 15706/08, 13 December 2016). It follows that Article 6 § 2 was not applicable to the latter proceedings. Accordingly, the applications are incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), and must be declared 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
75529/16
02/12/2016
Karmele MARTÍNEZ AGIRRE
12/07/1948
Bilbao
Nagore OTEGI MARTÍNEZ
06/02/1983
Bilbao
Ibon ALTUNA GOIRIZELAIA
2
79503/16
02/12/2016
Maria Antonia IBARGUREN ASTIGARRAGA
18/04/1938
Zestoa
Iñigo IRUIN SANZ
[1]. According to reports from the Ministry of the Interior, the killings of the applicants’ relatives were attributed to the Grupos Antiterroristas de Liberación (“the GAL”). 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]. Compensation in the event of death: EUR 250,000.
[4]. See for instance the case of Larrañaga Arando and Others v. Spain (dec.), nos. 73911/16 and 3 others, 25 June 2019.
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