THIRD SECTION

DECISION

Application no. 9295/17 Ainhoa IJURCO ILLARRAMENDI and O thers against Spain

The European Court of Human Rights (Third Section), sitting on 9 February 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 19 January 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 . A list of the applicants is set out in the appendix.

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 two daughters of J.M.I.O., who was severely injured on 28 March 1980 in Rentería (Spain) as a result of the explosion of a bomb attached to the underside of his car. The attack was vindicated by Batallón Vasco Españ . T he identity and nationality of the perpetrators were unknown. J.M.I.O. died in 1992.

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 injuries. Pursuant to Law no. 32/1999 of 8 October 1999 on Solidarity with Victims of Terrorism, in 2001 a lump sum of EUR 96,161.93 was awarded to the applicants, given the degree of disability J.M.I.O. was diagnosed with, as a result of the injuries suffered in the terrorist attack.

5 . The Government submitted that the J.M.I.O. had not been prosecuted and convicted for belonging to the terrorist organisation ETA . It appears however from the documents submitted by the Government (police reports included in the administrative and judicial proceedings) that J.M.I.O. had been subject to detention in Spain for collaboration with ETA (see paragraphs 8 and 12 below).

6 . In 2012 the applicants applied for an additional compensation from the State for the injuries 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 being diagnosed with total disability for work (EUR 180,000), less the amount already received by J.M.I.O. under the previous legislation (see paragraph 4 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.

7 . 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 2013 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 Gestoras Pro ‑ Amnistía and was a member of Herri Batasuna , which lead to his arrest in 1978 for alleged collaboration 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 European Convention on the Compensation of Victims of Violent Crimes (ECVVC), 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”.

8 . 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 1978 for alleged collaboration with ETA, when he was in possession of publications and accountability documents related to ETA-Vª Asamblea . He had links with Gestoras Pro- Amnistía and was a member of Herri Batasuna when he suffered the terrorist attack (1980). Afterwards, he was a candidate for Herri Batasuna in the elections to the Juntas Generales of the Basque Country (1983 and 1987) and to the Basque Parliament (1984). In 1989 he participated with a group of other people in threatening the Governor of Guipúzkoa , an action for which criminal proceedings were initiated, although he was not convicted as he passed away before the judgment was delivered in 1995. The other persons involved in the same facts were convicted on charges of assault and injuries.

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

10 . 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 delivered on 24 June 2015 reads as follows:

“THIRD – ...[I]t must be pointed out that Article 8 of the Ratification Instrument of the CVVC adopted in Strasbourg on 24 November 1983 (...) states that:

“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.”

(...)

FOURTH – As we have previously mentioned, the contested decision applies the aforementioned ECVVC , in relation to Article 3 § 2 of Law no. 29/2011, of 22 September 2011, relying on the following reasons:

...“ the deceased had links with Gestoras Pro- Amnistía and was a member of Herri Batasuna , which led to his arrest in 1978 for alleged collaboration with ETA (according to the report of the Central Intelligence Unit)” ...

The [applicants] contest the evidential value of the said reports, on the basis that the circumstances of “participation” or “membership” in an organisation that is engaged in violent criminal actions can only be determined in a criminal judgment, and that the facts reflected in some [police] reports lack evidential value because they have not been presented in judicial proceedings with the procedural and constitutional safeguards that any incriminating charge demands.

...The right to the presumption of innocence, recognised in Article 24 of the Spanish Constitution, means that any person accused of a crime or misdemeanor must be considered innocent until proven guilty, according to Article 11 of the Universal Declaration of Human Rights, Article 6 § 2 of the European Convention on Human Rights and Fundamental Freedoms, and Article 14 § 2 of the International Covenant on Civil and Political Rights. This, in turn, implies that evidence of the charges has been presented according to the constitutional and legal provisions and safeguards; constituting therefore a valid procedural activity, the incriminatory contents of which, rationally evaluated according to the rules of logic, the lessons of experience and scientific knowledge, may reveal sufficient elements to outweigh the initial presumption, allowing the court to reach an objective certainty on the facts and, relying on the latter, to declare them as proven.

However, we must note that, in the present case, we are to consider a specific rule which requires the concurrence of certain requirements. The concurrence of these requirements must be proven in administrative proceedings, which are subject to judicial review.

In this sense, in the same way that there are requirements for the recognition of a victim ’ s entitlement to the compensations stipulated in the regulations, the conditions for being declared a “victim of terrorism” are regulated in Article 3 bis (...) of Law no. 29/2011, which states:

“1. Those for which any of the following two requirements concur will be beneficiaries of the aid and services regulated in the present law:

When, by virtue of a final judgment, a right to be compensated has been recognised as civil responsibility for the facts and damages included in this law.

When, there being no such judgment, due judicial proceedings have been carried out, or criminal proceedings have been initiated, for the prosecution of the crimes. In these cases, the condition of victim or of their successors, the extent of the damages, the nature of the facts or the causal acts, and the rest of the legally established conditions, may be proven before the competent body of the State ’ s General Administration, by any means of legally admissible evidence.”

These are the conditions in order to be “entitled to” the aid and services established in this Law ...

As can be seen above, in the absence of a “final judgment”, Article 1(b) allows for the possibility that the “condition of victim (...) may be proven (...) by any means of legally admissible evidence”.

...

Therefore, in the administrative proceedings, in which the validity of the claim to compensation is decided, the circumstances of “membership” or “participation” referred to in the provisions [cited above] and applied to deny the requested compensation, have a different dimension than that of criminal determination, given the principles and the context that govern this matter. In this sense, the aforementioned Article 3 of Law no. 29/2011 establishes:

“2. The granting of aids and services recognized in the present law shall be subject to the principles that, to receive compensation, are set forth in the European Convention on the Compensation of Victims of Violent Crimes”.

The wording of the applied Articles does not require that such circumstances are stated in a “final judgment”.

FIFTH - As previously stated, the contested decision sustains the denial of the request on the basis that the concurrence of the legal circumstances resulting in the “suppression” or “reduction” of the compensation had been established, because "the deceased was linked to Gestoras Pro- Amnistía and was a member of Herri Batasuna , which led to his arrest in 1978 for alleged collaboration with the ETA (according to the report of the Central Intelligence Unit).

The Report of the General Directorate of the Civil Guard of February 2013 refers to the arrest on 3 January 1978 of [J.M.I.O. ], and indicates that publications and accountability documents related to ETA-Vª Asamblea were found in his possession.

On the other hand, the State Attorney provides an extended report, dated 21 February 2014, of the Directorate General of the Civil Guard, outlining [J.M.I.O.] ’ s activities and relations with the ETA and identifying the source of the collected data; as well as in the report dated 3 March 2014, from the Directorate General of the Police.

This Chamber, evaluating the reports submitted by the Administration, as well as the various judicial resolutions submitted, both administratively and judicially, comes to the conclusion that [J.M. I. O.] “participated” in the terrorist group ETA by carrying out tasks or functions, so that he was even considered as a member of such a terrorist group by the group itself. ”.

11 . 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 links of the applicants ’ late relative with ETA. The reports referred to the following sources: police records, statements made by J.M.I.O. himself when he was arrested by the police, a report of the J.M.I.O. ’ s house search in 1978, official documentation concerning the candidates who stood for elections in the Basque Country and several press articles.

12 . It appears from these reports that the applicants ’ late relative was arrested in January 1978 when he was in possession of documentation of ETA – Vª Asamblea . A house search at his home was authorized by the Investigating Judge no. 2 of San Sebastián, during which several publications related to ETA were seized (ZUTIK, HASI GARA, ASKATASUN IPUINA , and a summary of the organization KAS ), as well as money belonging to the Gestora Pro- Amnistía of Rentería . In his statement to the police, J.M.I.O. admitted to having taken part in the actions carried out by the Gestora Pro- Amnistía of Rentería and explained that he had actively participated in the campaign to free the ETA member “APALA”, who had been arrested by the French authorities. He also explained that he had received publications from ZUTIK, that leaflets and stickers found at his house came from young people he knew in Rentería , that ETA- V a Asamblea ’ stickers and the money found at his home were given to him at the end of a political rally held by Gestora Pro- Amnistía in Rentería , and that he was to give the money to the Treasurer of the Gestora . The applicants ’ relative was released within 24 hours after his arrest. It does not appear from the documents submitted to this Court whether criminal charges were instituted against him for these facts, or whether proceedings were brought against other persons. After the terrorist attack that J.M.I.O. and his wife suffered in March 1980, Herri Batasuna issued a statement in which the couple was referred to as members of the political party, highlighting their frequent contacts with Gestora Pro- Amnistía . Also in 1980, and according to another press article, J.M.I.O. was given a job as a concierge in the City Hall of Rentería , a post that was offered to him after a meeting of the town council that was attended only by the members of Herri Batasuna , and that the rest of the councillors refused to attend as a sign of protest. In 1983 and 1984 J.M.I.O. stood for election as the candidate for Herri Batasuna in the elections to the Juntas Generales (1983 and 1987) and to the Basque Parliament (1984) and was in fact elected as town councilman in Bidasoa-Oiartzun ( Guipúzcoa or Gipuzkoa) in 1983. In October 1984 J.M.I.O. and one of his daughters were arrested in Rentería for participating in activities in support of ETA (it is not stated in the documents submitted to the Court whether criminal proceedings were brought against J.M.I.O. for these facts). In September 1989 J.M.I.O. was arrested, together with six other people, while shouting his support to ETA (“Gora ETA”), for threatening and insulting the Civil Governor of Gipuzkoa and his police escorts, while the latter attended the funeral of a postman who died after the explosion of a parcel bomb. According to a press article, the applicants ’ relative was indicted for these facts (although no other reference has been submitted to the Court concerning this indictment). J.M.I.O. was not convicted because he had passed away before the judgment was delivered in 1995. The other six defendants in the case were convicted on charges of assault and injuries. After J.M.I.O. ’ s death in 1992, Gestoras Pro- Amnistía and Herri Batasuna published obituaries in his honour in the newspaper Egin. The police report included a reference to a report edited in 2004 by the Society of Basque Studies, in which J.M.I.O. was referred to as a member of Herri Batasuna who held office in the Juntas Generales of Gipuzkoa between May 1983 and April 1987. The police report also included a copy of a document called “ Glencree Initiative”, dated 2012, in which the applicants ’ relative was mentioned as an active member of Herri Batasuna and Gestoras . However, contrary to what the Audiencia Nacional states in its judgment (paragraph 10 above), no statement from the terrorist group itself has been found regarding J.M.I.O. ’ s membership in ETA.

13 . 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 (in particular, Puig Panella v. Spain , no. 1483/02, 25 April 2006).

14 . The Constitutional Court declared the appeal inadmissible owing to the non-existence of a violation of the fundamental rights invoked. In its decision of 18 July 2016, the Constitutional Court noted that the Audiencia Nacional had assessed the administrative documents correctly and according to the law, and that the applicants had failed to present evidence which challenged the contents of the reports submitted by the administrative authorities. The decision was served on the applicants on 27 July 2016.

15 . 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

16 . 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 stressed that the reasoning used by the domestic authorities had contained a finding that their late relative had been a member 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

17 . The applicants complained that the reasons given by the domestic authorities for dismissing their compensation claim 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, which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

18 . The Government observed that the applicants ’ late relative ’ s criminal responsibility had not been determined by any final criminal judgment as his possible criminal responsibility was extinguished by his death. His participation or involvement in the terrorist group ETA was determined by the administrative court, taking into account the police reports and his links with the political party Herri Batasuna and Gestoras Pro- Amnistía . According to the Government, the Audiencia Nacional did not dismiss the applicants ’ claim for compensation on the sole basis of their late relative ’ s relationship with a political party which, at the moment was legal, but rather on the police reports. These reports gave abundant evidence of J.M.I.O. unquestionable ETA membership. In the Government ’ s view, what had been at stake in the compensation proceedings had been whether the legal requirements to obtain additional compensation for the death of the applicants ’ relative had been met, which included verifying whether the deceased had been a member of ETA and fell under the exception provided by Article 8 of the ECV VC . 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 highlighted the similarities with the case of Larrañaga Arando and Others (cited above) and invited the Court to conclude that the present application was manifestly ill-founded because it 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.

19 . The applicants argued that J.M.I.O. was subject to criminal proceedings prior to the administrative claim made by his relatives and that none of the criminal proceedings ended up with a criminal conviction. The applicants underlined the existence, from their point of view, of a link between those criminal proceedings in which their late relative had not been formally accused, and the administrative proceedings rejecting the additional compensation claims brought by them. The presumption of innocence could only have been rebutted in the context of the latter on the basis of previous criminal courts decisions following the examination of all evidence available and not only on mere suspicions contained in police reports. These suspicions did not prove any involvement of their late relative in a terrorist group. The applicants argued that their late relative ’ s membership to Herri Batasuna and Gestoras was legal at the time and could not be taken into account by the Audiencia Nacional to refuse compensation. They claimed that the Audiencia Nacional shared such view in a similar case (case 287/2013 from the same court).

20 . Concerning the question of the applicants standing as “victims”, the Court refers to its decisions in cases Larra ñ aga Arando and Others , § 39, and Martinez Agirre and Others , § 37 (both cited above) and concludes that they may claim to be “victims” of the alleged violation of Article 6 § 2 of the Convention.

21 . Concerning the general principles applicable to the present case, reference is made to the decisions in cases Larra ñ aga Arando and Others , §§ 40-43, and Martínez Agirre and Others , §§ 38-42, 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 severe injuries 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 evidence 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

23 . The Court notes that the applicants ’ late relative was indeed involved in two different criminal proceedings. The first one, in 1978, included his arrest and a search in the applicants ’ late relative ’ s house, but no formal indictment was actually made (see paragraph 12 above). During the second one, in 1989, J.M.I.O. was arrested with six other people, leading to criminal proceedings which ended in the conviction of the latter, excluding the applicants ’ late relative who had died three years prior to the judgment. Even though no documentation has been submitted in this regard, 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 further observes that although the parties have not submitted any information on the formal discontinuation of that investigation or proceedings, the applicants ’ relative died in 1992 and his possible criminal liability was extinguished by his death, as admitted by the Government. The Court therefore assumes that the criminal proceedings against the applicants ’ relative were discontinued as a result of his death .

25 . 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 ’ relative and the compensation proceedings brought by the applicant 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 ). The Court observes that compensation proceedings were administrative in nature and aimed at determining whether the applicants had the right to obtain additional compensation for their late relative ’ s severe injuries as a result of the explosion of a bomb attached to the underside of his car (paragraph 3 above) .

26 . 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 investigations concerning the applicants ’ late relative ’ s alleged involvement or participation in ETA activities mentioned above (see paragraphs 8 and 10 above) included in the police reports, but also on other elements such as the statements made by J.M.I.O. himself when he was arrested, the report of the search of his house conducted in 1978, the official documentation concerning the candidates who stood for elections in the Basque Country and various press articles (paragraphs 11 and 12 ). The Audiencia Nacional did not engage in a review or evaluation of the concrete evidence included in the criminal file against J.M.I.O. nor did it analyse or reassess the applicants ’ relative ’ s participation in the events leading to the criminal charges at issue. The fact that J.M.I.O. was a member of a political party and his relationship with Gestoras Pro- Amnistía are by far not the only elements taken into consideration in the present case; otherwise it could have led to a judgement awarding the compensation claimed, as stated by the applicants (paragraph 19 above). 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.

27 . 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, 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 (see paragraphs 11 and 12 , above), were considered enough by the Ministry of Interior and by the administrative court, to conclude to the exception to the right of compensation.

28 . 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 11 March 2021 .

Olga Chernishova Georgios A. Serghides Deputy Registrar President

Appendix

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Ainhoa IJURCO ILLARRAMENDI

1972Spanish

Oiartzun

2Maria Nerea IJURCO ILLARRAMENDI

1964Spanish

Oiartzun

3Maria Carmen ILLARRAMENDI CADENAS

1942Spanish

Oiartzun