THIRD SECTION

DECISION

Application no. 3087/17 Maria Isabel ITURBE ABASOLO and Alaitz PEREZ DE ARENAZA ITURBE against Spain

The European Court of Human Rights (Third Section), sitting on 16 March 202 1 as a Committee composed of:

Georgios A. Serghides, President,

María Elósegui,

Peeter Roosma, judges,

and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 19 December 2016,

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 . The applicants, Ms Maria Isabel Iturbe Abasolo and Mr Alaitz Perez de Arenaza Iturbe, are Spanish nationals, who were born in 1955 and 1980 respectively and live in Arrasate - Mondragon and Arrasate. They are represented before the Court by Sir I. Iruin Sanz , residing in Donostia-San Sebastian.

2 . The Spanish Government (“the Government”) were represented by their Agent, Mr A. Brezmes Martínez de Villarreal, State Attorney.

3 . The applicants are the widow and daughter of P.A.S., who was killed in a terrorist attack on 23 March 1984 in Biarritz (France). The terrorist attack was vindicated by a terrorist group called G.A.L.

4 . Since the applicants were relatives of a victim of a violent offence perpetrated by a terrorist group, they were entitled under Spanish law to obtain a compensation payment for their relative ’ s death. Pursuant to Law no. 32/1999 of 8 October 1999 on Solidarity with Victims of Terrorism, in 2000 a lump sum of EUR 69.116,21 was awarded to each of the applicants .

5 . It appears from the documents submitted by the Government that the applicant ’ s relative had been investigated in the preliminary case-file 128/1992 by the Investigating Central Court nº 2 of the Audiencia Nacional , for alleged collaboration with armed and organised groups. He was detained on 23 September 1982 and the case was provisionally discontinued in October 1982.

6 . The domestic proceedings are similar to those described in Larra ñ aga Arando and Others v. Spain (dec.), (no. 73911/16, 25 June 2019) and Martínez Agirre and Others v. Spain (dec.), (nos. 75529/16 and 79503/16, 26 June 2019).

7 . In 2012 the applicants applied to the Ministry of Interior ’ s General Directorate for Support to Victims of Terrorism, for an additional compensation for the death of their relative under Law no. 29/2011 of 22 September 2011 on the Recognition and Comprehensive Protection of Victims of Terrorism. The amount claimed was the amount payable in case of death, less the amount already received by the applicants under the previous legislation (see paragraph 4 above).

8 . 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 (ECVVC). It relied on reports produced in 2012 by the General Directorate of the Police and the General Directorate of the Civil Guard ( Guardia Civil ), indicating that the applicants ’ relative had links with 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 ECVVC, which had been directly applicable in the Spanish legal system since its ratification and publication. The provision provided that compensation to 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”.

9 . According to the reports produced by the General Directorate of the Police and the General Directorate of the Guardia Civil included in the administrative files, the applicants ’ late relative was arrested in 1982 as an alleged member of ETA, and after being discharged he left Spain to live in France. The preliminary investigation concluded on 6 October 1982. The applicants ’ relative was not held in detention or subject to any investigation after that date.

10 . The applicants instituted judicial administrative proceedings ( recurso contencioso-administrativo ) against the decisions of the Ministry of the Interior.

11 . By a Judgement of 23 September 2015, the Audiencia Nacional (Administrative Chamber) dismissed the appeal and upheld the decision taken by the Ministry of the Interior. The relevant part of the judgment reads as follows:

“ [T]he contested decision confirms the denial of [compensation] on the basis of the concurrence of legal circumstances calling for the refusal or reduction of the said compensation as “in order to verify if such circumstance applies in this case, a report was requested to the competent body, the Secretary of State for security at the Ministry of Interior, which confirmed that P.A.S. was a member of ETA.”

The report of the General Directorate of the Guardia Civil of 12 December 2012, shows that P.A.S. was involved with the terrorist group ETA, and so does the report issued by the General Directorate of the Police, dated 24 February 2014.

On the other hand, the State Attorney provides an extended report, dated 27 February 2014 and issued by the Directorate General of the Civil Guard, outlining P.A.S. track record with ETA and his activity within the organization ’ s network.

This Chamber, evaluating the reports submitted by the Administration, comes to the conclusion that P.A.S. “participated” in the terrorist group ETA by carrying out tasks or collaborative functions with the organization.

(...)”.

12 . During the judicial administrative 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 links of the applicants ’ late relative with ETA. The reports referred to the following sources: police records, statement made by P.A.S. himself when he was arrested in 1982; statements given after 1982 by other investigated members of the terrorist group; open sources recording the tribute paid to the applicant ’ s relative after his death by the leaders of the terrorist organization and official documentation concerning the judicial decisions concerning the illegality of a political party, associations and organizations around the ETA, with which P.A.S. was closely connected.

13 . It appears from these reports that the applicants ’ late relative was arrested in September 1982 in Mondragon for his connections with ETA. During the house search at his home a publication related to ETA (ZUTIK) was seized. In his statement to the police, P.A.S. admitted to having facilitated contacts between the criminal organization and those obliged to pay the “revolutionary tax”. He also admitted to having informed ETA of the police road controls and to have made money deliveries. He admitted being the brother in law of two important leaders of ETA, organization with which he collaborated, though he said he was not a member. After his death, he was subject to different acts of tribute, both in France and Spain, by members of ETA. His coffin was transported to the town Council of Mondragon, while 2000 people shouted their support to ETA. The “ eusko gudariak ” (hymn to the Basque warrior, linked to the funerals of ETA activists) was sang. This tribute was repeated years later in September 2012, in an act organised to remember all the Basque warriors, especially those who had died during terrorist acts. The reports include statements made by other suspects during different investigations, which confirmed P.A.S. collaboration with the terrorist organisation. In 1986, M. admitted to distributing ETA ’ s propaganda, provided by the applicants ’ relative who had given him instructions to flee the country to avoid detention. Similar statements were given in 1987 by another suspect, I., with whom P.A.S. had collaborated withing the terrorist organisation, distributing leaflets and helping others to escape the country.

14 . The applicants lodged an amparo appeal with the Constitutional Court. They relied on Article 6 § 2 of the Convention and the Court ’ s case-law in respect of that provision (referring to Puig Panella v. Spain , no. 1483/02, 25 April 2006).

15 . On 28 of June 2016, the Constitutional Court declared the appeal inadmissible

16 . Concerning the relevant provisions of the Spanish law and practice, the Court refers to cases Larrañaga Arando and Others v. Spain (dec.), no. 73911/16, § § 24-33, ECHR 2019, and Martínez Aguirre and Others v. Spain (dec.), nos. 75529/16 and 79503/16, § § 21-30, ECHR 2019.

COMPLAINT

17 . 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 relative ’ s right to be presumed innocent. They relied on Article 6 § 2 of the Convention.

THE LAW

18 . The applicants complained that the right of their late relative to be presumed innocent has been breached. 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.”

19 . The Government observed that the applicants ’ late relative ’ s criminal responsibility had not been determined by any final criminal judgment as the preliminary investigation was discontinued in 1982. His participation or involvement in the terrorist group ETA was determined by the administrative court, taking into account the police reports of 2014, which indicated that P.A.S. had carried out certain tasks for ETA. In the Government ’ s view, what was at stake in the compensation proceedings was whether the legal requirements to obtain additional compensation for the death of the applicants ’ relative were met, which included verifying whether the deceased had been a member of ETA and thus fell under the exception provided by Article 8 of the ECCVV. The Government highlighted the similarities with the case of Larrañaga Arando and Others v. Spain (cited above) and therefore invited the Court to conclude that the present application fell outside the scope of application of Article 6 § 2 of the Convention, or alternatively, to find that there had been no breach of Article 6 § 2.

20 . The applicants argued that prior to their administrative claim, P.A.S had been subject to criminal proceedings which did not end with a criminal conviction, as they had been terminated in 1982. They assumed a link between those criminal proceedings and the administrative proceedings rejecting the additional compensation. They contended that the administrative judgment of the Audiencia Nacional had taken for granted, in breach of Article 6 § 2, that the applicants ’ late relative was guilty, even though he had not been convicted by the criminal courts.

21 . Concerning the question of the applicants standing as “victims” and the general principles applicable to the present case, reference is made to the decisions in cases Larrañaga Arando and Others , §§ 39-43, and Martínez Agirre and Others , §§ 37-42, both cited above.

22 . 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 relative on the grounds that he had been a member of ETA, which they consider incompatible with the presumption of innocence. Once again, 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, a discontinuation of the criminal proceedings as statute-barred, the death of the accused, and so on). Therefore, the Court must examine whether there was a link between any prior criminal proceedings against the applicants ’ late relative and the administrative compensation proceedings brought by the applicants 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 applicant ’ s entitlement to compensation.

23 . The Court notes that the applicants ’ late relative was indeed involved in criminal proceedings which included his arrest and a search of his house, but no formal indictment was actually made. The Court is ready to accept that the applicants ’ late relative 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.

24 . 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 relative and the compensation proceedings brought by the applicants for his killing, having regard to the general considerations set out above (see Larrañaga Arando and Others , § 43, and Martínez Agirre and Others , § 41, both cited above).

25 . The Court notes that in the present case the Ministry of the Interior and the Audiencia Nacional relied not only on some references to the previous criminal investigation concerning the applicants ’ late relative ’ s alleged involvement or participation in ETA activities (see paragraphs 8 and 9 above) included in the police reports, but also on other elements pointing at his collaboration with ETA (paragraphs 11-13 above). The Audiencia Nacional did not engage in a review or evaluation of the concrete evidence included in the criminal file against P.A.S., not did it analyse or reassess the applicants ’ relative ’ s participation in the events leading to the criminal charges at issue. Therefore, it does not appear that the contents or the outcome of those previous criminal investigations against the applicants ’ late relative were decisive for the impugned proceedings.

26 . Lastly, the Court notes that the purpose of the compensation proceedings before the Audiencia Nacional had been to determine whether the applicants had a right to an increase of the compensation already awarded for their relative ’ s death as a result of the shooting in Biarritz in 1984, in accordance with the applicable regulations concerning victims of terrorism, which provided an exception where the alleged victims were involved or had been members of an organisation devoted to perpetrating violent crimes. It is only with the purpose of determining this exception, that the domestic court had to analyse the evidence presented regarding the applicants ’ relative ’ s involvement with ETA, leaving out of their ruling any question of criminal liability, as it is 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. The different facts and elements included in the police reports were considered enough by the Ministry of Interior and by the administrative court, to conclude to the exception to the right of compensation.

27 . On the basis of the foregoing, the Court concludes that the applicants have not demonstrated the existence of the necessary link between the criminal proceedings against their relative and the compensation proceedings brought by them (see, Martínez Agirre and Others , § 52, cited above). It follows that Article 6 § 2 was not applicable to the latter proceedings. Accordingly, the application is 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, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 April 2021 .

Olga Chernishova Georgios A. Serghides Deputy Registrar President