Information Note on the Court’s case-law 231

July 2019

Romeo Castaño v. Belgium - 8351/17

Judgment 9.7.2019 [Section II]

Article 1

Jurisdiction of States

Belgian jurisdiction arising out of the refusal to execute a European arrest warrant, thus impeding a murder investigation in Spain

Article 2

Article 2-1

Effective investigation

Refusal to execute a European arrest warrant, thus impeding a murder investiga tion in Spain, on the grounds of an insufficiently substantiated risk of poor conditions of detention: violation

Facts – In 1981 the applicants’ father was murdered by a commando unit belonging to the terrorist organisation ETA. In 2007 all the members of the commando unit were convicted by the Spanish courts, with the exception of N.J.E., who fled to Belgium.

A Spanish investigating judge issued European arrest warrants in respect of N.J.E. in 2004, 2005 and 2015, with a view to criminal proceedings. Howev er, in 2013 and 2016 the Indictments Division of the Belgian court refused execution of the warrants, finding that there were substantial reasons to believe that execution would infringe N.J.E.’s fundamental rights. The Belgian Federal Prosecutor’s Office lodged appeals on points of law against those judgments, but they were dismissed by the Court of Cassation in 2013 and 2016.

The applicants complained that the Spanish authorities were being prevented from prosecuting N.J.E. as a result of the Belgian authorities’ refusal to execute the European arrest warrants under the system operated within the European Union (EU).

Law

Articl e 1 ( jurisdiction ratione loci): The applicants’ complaint under Article 2 of the Convention concerning Belgium related to the alleged failure of the Belgian authorities to cooperate with their Spanish counterparts by taking the necessary steps to enable t he suspected murderer of the applicants’ father, who had fled to Belgium, to be tried in Spain. Hence, the complaint was not based on an alleged failure on Belgium’s part to fulfil a possible procedural obligation to itself investigate the murder.

In the c ontext of the existence of mutual undertakings by the two States concerned to cooperate in criminal matters under the European arrest warrant procedure, the Belgian authorities had been informed of the Spanish authorities’ intention to prosecute N.J.E. and had been requested to arrest and surrender her.

These circumstances sufficed for the Court to find that a jurisdictional link existed between the applicants and Belgium for the purposes of Article 1 with regard to the applicants’ complaint under the proce dural limb of Article 2.

Conclusion : preliminary objection dismissed (unanimously).

Article 2 ( procedural aspect ): In the context of execution of a European arrest warrant by an EU member State, the mutual recognition mechanism should not be applied automatically and mechanically, to the detriment of fundamental rights. In view of the presumption of respect for fund amental rights by the issuing State which underpinned the concept of mutual trust between EU member States, a refusal to surrender an individual had to be justified by detailed information pointing to a clear risk to the person’s fundamental rights capable of rebutting that presumption. In the present case the Belgian courts had justified their decision not to execute the European arrest warrants issued by the Spanish investigating judge by referring to the risk that, in the event of her surrender to Spain, N.J.E. would be detained there in conditions contrary to Article 3 of the Convention. That could constitute a legitimate ground for refusing to execute the arrest warrant and thus for refusing cooperation with Spain. However, in view of the presence of th ird-party rights, the finding that such a risk existed had to have a sufficient factual basis.

The Indictments Division had based its decision mainly on international reports from 2011 and 2014 and on the context of “Spain’s contemporary political history” . It had not conducted a detailed, updated examination of the situation as it applied in 2016 and had not sought to identify a real and individual risk of a violation of N.J.E.’s Convention rights or any structural shortcomings with regard to conditions of detention in Spain.

Numerous European arrest warrants had been executed in the past in respect of alleged members of ETA without the executing States, including Belgium, discerning a risk of a violation of the fundamental rights of the person whose surren der was requested.

In view of the circumstances of the case and the interests at stake, the Belgian authorities, making use of the possibility afforded by domestic law, should have requested further information concerning the application of the prison regi me in N.J.E.’s case, and more specifically concerning the place and conditions of detention, in order to verify whether her surrender would entail a real and concrete risk of a violation of the Convention.

Hence, the scrutiny performed by the Belgian court s during the surrender proceedings had not been sufficiently thorough for the Court to find that the ground they had relied on in refusing N.J.E.’s surrender, to the detriment of the applicants’ rights, had had a sufficient factual basis. Belgium had there fore failed in its obligation to cooperate arising out of the procedural aspect of Article 2, and there had been a violation of that provision.

That finding did not necessarily imply that Belgium was required to surrender N.J.E. to the Spanish authorities. It was the lack of sufficient factual basis for the refusal to surrender her that had led the Court to find a violation of Article 2. That in no way lessened the obligation for the Belgian authorities to verify that N.J.E. would not run a risk of treatmen t contrary to Article 3 if she were surrendered to the Spanish authorities. More generally, the present judgment could not be construed as diminishing States’ obligation to refrain from extraditing a person to a requesting country where there were substant ial reasons for believing that the person concerned, if extradited to that country, would run a real risk there of being subjected to treatment contrary to Article 3, and hence to verify that no such risk existed.

Conclusion : violation (unanimously).

Artic le 41: EUR 5,000 to each of the applicants in respect of non-pecuniary damage.

(See also Soering v. the United Kingdom , 14038/88, 7 July 1989; Mamatkoulov and Askarov v. Turkey [GC], 46827/99 and 46951/99, 4 February 2005, Information Note 72; Rantsev v. C yprus and Russia , 25965/04, 7 January 2010, Information Note 126; Trabelsi v. Belgium , 140/10, 4 September 2014, Information Note 177; Avotiņš v. Latvia [GC], 17502/07, 23 May 2016, Information Note 196; Pirozzi v. Belgium , 21055/11, 17 April 2018; Güzelyu rtlu and Others v. Cyprus and Turkey [GC], 36925/07, 29 January 2019, Information Note 225; and the Factsheet on Case-law concerning the European Union )

© Council of Europe/Europ ean Court of Human Rights This summary by the Registry does not bind the Court.

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