THIRD SECTION

DECISION

Application no. 68291/17 Ane MUGURUZA BARTOLOME and Elena BARTOLOME LLAMAZARES against Spain

The European Court of Human Rights (Third Section), sitting on 16 March 2021 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 1 September 2017,

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 Ane Muguruza Bartolome and Ms Elena Bartolome Llamazares, are Spanish nationals, who were born in 1989 and 1958 respectively and live in Bilbao. They were represented before the Court by Mr I. Altuna Goirizelaia and Mr O. Peter, lawyers practising in Bilbao and Genève.

2 . The Spanish Government (“the Government”) were represented by their Agent, Mr R-A. Leon Cavero, Senior State Attorney.

3 . The applicants are the daughter and the partner of J.M.G., who was killed on 20 of November 1989, as a result of gunshots during an attack in a hotel in Madrid, the same day he had taken office as a member of parliament from the political party Herri Batasuna.

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 2001 a lump sum of EUR 138,232.78 was awarded to the applicants.

5 . It appears from the documents submitted by the Government (police reports included in the administrative and judicial proceedings) that J.M.G. had been subject to detention, extradition and pretrial detention for belonging to ETA.

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 . On 21 September 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, following the entry into force of 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 they had already received 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 J.M.G. had been a member of ETA and noting his position as a congressman representing Herri Batasuna . 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 violence”.

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

10 . By a judgment of 24 June 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 reduction or refusal of the said compensation, as “according to the reports issued by the General Directorate of the Guardia Civil and the General Directorate of the Policia Nacional , dated 12 and 28 December 2012, at the time of his death, [the applicants ’ relative] was an elected congressman of the political party Herri Batasuna. On the other hand, the reports dated 23 and 30 May 2013, certify that E.B.L. [the second applicant ] was arrested for alleged collaboration with the military terrorist group ETA and that she was a member of Herri Batasuna, Euskal Herritarrok and other political parties declared illegal.”

In this case, the State Attorney provides an extended report, dated 27 March 2014, outlining J.M.G. ’ s activities and relations with ETA and identifying the source of the collected data; the Chamber acknowledges the report and refers to its content.

This Chamber, evaluating the reports submitted by the Administration, as well as the various judicial and administrative decisions, comes to the conclusion that J.M.G. “participated” in the terrorist group ETA by carrying out tasks or functions, so that he was even considered to be a member of that terrorist group by the group itself.

On the other hand, according to the judgement 29/89 of 8 March 1989 of the Audiencia Nacional (Section II of the Criminal Chamber), the criminal liability of J.M.G. ’ s crime of membership of a terrorist group is declared extinguished, but this is not an acquittal, as the applicants sustain ...

Thus, the key element to refuse or reduce compensation, ... is to analyse the belonging ... to an organisation engaging in violent crimes; in the case of J.M.G., ... the mere fact of having been elected as a congressman for the political party Herri Batasuna is not enough to [refuse or reduce compensation], as his position of a victim, opening the possibility of a compensation, dates back to the time when the political party had no legal obstacle to participate in elections; ...therefore we must refer to the time when the violent [terrorist] act took place, which triggered the personal and material damages to which the condition of victim is attached...”

11 . 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; statements made by J.M.G. himself when he was arrested; official documentation concerning the candidates who stood for elections in the Basque Country; judicial records; the ETA manual, found in the computer seized from the leaders of ETA ’ s political branch and several press articles.

12 . It appears from these reports that between 1977 and 1978, J.M.G. had several meetings with the leader of ETA ’ s political Branch E.E.A. Next year he travelled to France to meet one of the leaders of the terrorist group and was asked to draft a report on the political situation in his area; several meetings followed, with other leaders of the terrorist group in France. After his girlfriend ’ s arrest in 1981, he fled to France to avoid his own detention. During his time in France, he had meetings with the leaders mentioned above, was instructed about ETA ’ s structure and was in charge of press relations for ETA ’ s refugee committee in France, being paid for his work by ETA ’ s leader J.M.P.G. In 1985 he became press correspondent for the newspaper Egin , in the French Basque country. In 1987 he was arrested by the French police in Anglet and handed over to the Spanish Guardia Civil . He was in pretrial detention until he was finally released in November of the same year. In 1988, he was designated member of the national board of the political party Herri Batasuna, which led him to become a member of the Spanish Parliament, where he took office on 20 November 1989. He was murdered on the same day.

13 . The applicants lodged an amparo appeal with the Constitutional Court against the judgment of the Audiencia Nacional of 24 June 2015. On 27 February 2017 the Constitutional Court declared the appeal inadmissible.

14 . 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

15 . 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

16 . 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.”

17 . The Government observed that 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 fell under the exception provided by Article 8 of the ECVVC. 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 proving that the deceased had belonged to ETA (see paragraph 10 above) . The Government invited the Court to conclude that the present application fell outside the scope of application of Article 6 § 2 of the Convention, or alternatively, t o find that there had been no breach of Article 6 § 2.

18 . The applicants argued that since 1981, there was no record of J.M.G. ’ s involvement in activities linked to ETA, either in Spain or in France. What the domestic court considered as proof of the applicants ’ late relative ’ s membership of ETA, was in fact a friendly relationship with J.M.P.G. None of the facts established by the Government could be used to confirm the applicants ’ late relative belonging to ETA. The judgment of the Audiencia Nacional (Administrative Chamber), given 30 years after J.M.G. ’ s death, violated his right to be presumed innocent.

19 . 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.

20 . 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 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, 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 applicants ’ entitlement to compensation.

21 . The Court notes, as it has been stated in the compensation proceedings ’ judgment (see paragraph 10 , above) that the applicants ’ late relative was indeed involved in criminal proceedings before the Criminal Chamber of the Audiencia Nacional . The judgement delivered in the criminal case considered established the crime of collaboration with an armed organization. No penalty was set, however, as the proceedings were statute-barred, since J.M.G. had fled to France for a period of five years in the course of those proceedings. However, given that this criminal investigation was related to membership of ETA or collaboration in its crimes and activities, 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.

22 . The Court ’ s task at this stage of its analysis is to examine whether there was a link between the 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 Larra ñ aga Arando and Others, § 43, and Martínez Agirre and Others, § 41, both cited above ).

23 . The Court notes that in the present case the Ministry of the Interior and the Audiencia Nacional relied not only on the criminal judgement mentioned above for the alleged involvement or participation of J.M.G. in ETA activities mentioned and included in the police reports, but also on other elements (see paragraphs 10-12 above). Regarding the criminal case, the Administrative Chamber of the Audiencia Nacional did not engage in a review or evaluation of the concrete evidence included in the facts nor did it analyse or reassess the applicants ’ late relative ’ s participation in the events leading to the judgement, but limited itself to state that it was not simply an acquittal as the applicants sustained.

24 . 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 the killing of their relative in 1989 , 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. The question of criminal liability of the applicants ’ late relative 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 in such context may be different from those applicable in the context of criminal proceedings.

25 . 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 late 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