ECHR judgment of 09 July 2019 in the case of Romeo Castano v. Belgium (application No. 8351/17).
In 2017, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Belgium.
The case has successfully examined the application about the authorities 'refusal to execute warrants for the arrest of a person accused of killing the applicants' father hiding in Belgium. The case has violated the requirements of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
In 1981, the applicants' father was assassinated by an armed unit belonging to the ETA terrorist organization. In 2007, all members of this unit were convicted by the Spanish courts, with the exception of N.J.E., who had fled to Belgium.
ETA is an abbreviation of the name in Basque, founded in Spain in the early 1960s by the anti-government armed separatist organization "Association of Freedom Fighters of the Basque Country".
In 2004, 2005 and 2015, the investigating judge of Spain issued European arrest warrants (hereinafter warrants) in respect of N.J.E. with the aim of prosecuting him. However, in 2013 and 2016, the Belgium Indictment Chamber refused to comply, believing that there were serious reasons to believe that this would violate the fundamental rights of N.J.E. The Belgian Federal Prosecutor's Office filed a cassation appeal against these decisions. However, in 2013 and 2016, the Court of Cassation dismissed these complaints.
The applicants complained that the refusal of the Belgian authorities to execute orders issued within the framework of the system created in the European Union (“the EU”) prevented the Spanish authorities from prosecuting N.J.E.
QUESTIONS OF LAW
Regarding compliance with Article 1 of the Convention (territorial jurisdiction). The applicants' complaint in respect of Belgium, based on Article 2 of the Convention, concerns the alleged refusal of the Belgian authorities to cooperate with the Spanish authorities by taking the necessary measures to bring the alleged killer of their father, who was hiding in Belgium, to trial in Spain. Thus, this complaint was not based on the allegation that the Belgian authorities violated a possible procedural obligation to independently investigate the murder.
As part of the criminal law cooperation obligations that bind the two states through a European arrest warrant, the Belgian authorities were notified of the intention of the Spanish authorities to prosecute N.J.E. and they were required to detain him and transfer him to the Spanish authorities.
These circumstances are sufficient to suggest that there has been a jurisdictional relationship between the applicants and the Belgian authorities within the meaning of Article 1 of the Convention in respect of the applicants' complaint of an alleged violation of Article 2 of the Convention in its procedural aspect.
RESOLUTION
The preliminary argument is rejected (adopted unanimously).
Regarding compliance with Article 2 of the Convention (procedural aspect). As part of the execution of an order by an EU Member State, it is necessary to avoid the automatic and mechanical application of a system of mutual recognition to the detriment of fundamental rights. Taking into account the presumption of observance by the state that issued the warrant of fundamental rights that prevails within the framework of a system of mutual trust between the EU Member States, the refusal to execute the warrant must be substantiated by substantial evidence indicating an obvious danger to the fundamental rights of the person concerned and able to refute the presumption mentioned above . In the present case, the Belgian judicial authorities justified their refusal to execute the warrants issued by the investigating judge of Spain with the risk that if N.J.E. may be detained in conditions contrary to Article 3 of the Convention. This explanation may constitute a legitimate reason for refusing to execute the order and, therefore, for cooperation with the Spanish authorities. However, for this it is necessary, in view of the rights of third parties, that a statement of such a risk be based on sufficient factual evidence.
The Belgian prosecution chamber referred mainly to international reports from 2011–2014, as well as to the context of Spain’s “modern political history”. She did not conduct a thorough and relevant analysis of the situation in 2016 and did not seek to establish a real and individualizable risk of violation of the rights provided for in the Convention in respect of N.J.E. nor structural flaws in the conditions of detention in Spain.
Prior to this, many orders were issued and executed with respect to the alleged members of the ETA organization, while the countries where the orders were executed, including Belgium, did not see any risks of violating the fundamental rights of the persons in respect of whom the order was issued.
The circumstances of the present case and the interests raised therein should have prompted the Belgian authorities, when seizing the opportunity that they were given by the legislation of the country, to request additional information on the application of the N.J.E. in custody, in particular with regard to the place and conditions of his detention, in order to verify the existence of a specific and real risk of a violation of the Convention in the event of his extradition.
Thus, the analysis carried out by the Belgian authorities during the extradition proceedings was not comprehensive enough to hold that the reasons they referred to for refusing to extradite N.J.E. to the detriment of the applicant's rights, supported by sufficient factual grounds. Accordingly, the Belgian authorities violated the obligation of cooperation arising for them from Article 2 of the Convention in its procedural and legal aspect. Consequently, there was a violation of this Article of the Convention in the case.
Such a conclusion does not necessarily imply that the Belgian authorities were required to extradite N.J.E. to the authorities of Spain. The Court's finding of a violation of Article 2 of the Convention is based on a lack of factual grounds for refusing extradition. This does not relieve the Belgian authorities of the obligation to ensure that, if extradited to the Spanish authorities, N.J.E. will not be at risk of treatment incompatible with Article 3 of the Convention. In a broader sense, this Regulation cannot be interpreted as reducing the obligation of states not to extradite a person to a country that requires his extradition, if there are good reasons to believe that if extradited, this person would be at real risk of being subjected to treatment incompatible with Article 3 of the Convention, and therefore ensure that there is no such risk.
RESOLUTION
The case contained a violation of Article 2 of the Convention (adopted unanimously).
COMPENSATION
In application of Article 41 of the Convention. The Court awarded each of the applicants EUR 5,000 in respect of non-pecuniary damage.