The non-extradition of a murder suspect from Belgium to Spain did not have a sufficient real basis.
JUDGMENT
Romeo Castaño v. Belgium 09.07.2019 (no. 8351/17)
SUMMARY
Not extradiction of a murder suspect. Incomplete research for extradiction. The negative decision did not have a sufficient real basis. Infringement of the procedural aspect of the right to life.
The applicants complained that their right to effective investigation had been violated due to the refusal of the Belgian authorities to execute the European arrest warrants issued by Spain with regard to NJE, a person suspected of having shot his father, Lieutenant Ramón Romeo, who was murdered in 1981 by a group of commandos claiming to belong to the terrorist organization ETA. The Belgian courts have held that the publication of N.J.E. would violate fundamental rights under Article 3 of the Convention.
The Court observed that there was a risk for the person who had been surrendered to be subjected to inhuman or degrading treatment, which could be a legitimate reason for refusing to execute a European arrest warrant and thus denying the requested cooperation. However, the finding that such a risk existed had to have a sufficient effective basis.
In particular, the Court held that the review carried out by the Belgian courts during the delivery procedure was not sufficiently detailed to find that the refusal to surrender NIE to the detriment of the applicants’ rights had a real basis. Among other things, the Belgian authorities did not attempt to identify a real and individual risk of violation of the contract rights of N.J.E. or any structural deficiencies in the conditions of detention in Spain.
However, the Court emphasized that the finding of a violation does not necessarily mean that Belgium had to deliver the N.J.E. to the Spanish authorities. The lack of sufficient evidence to support the refusal to deliver it, which led the Court to find a breach of Article 2. This in no way reduced the Belgian authorities’ obligation to verify that NJ would not be treated contrary to Article 3 of the Convention if handed over to the Spanish authorities.
PROVISION
Article 3
PRINCIPAL FACTS
The applicants are five Spanish nationals who were born between 1959 and 1964 and live in Spain.
They are the children of Lieutenant Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by
a commando unit claiming to belong to the terrorist organisation ETA.
In 2004 and 2005 a Spanish judge of the Audiencia Nacional issued two European arrest warrants in
respect of N.J.E., a Spanish national of Basque origin suspected of shooting the applicants’ father.
In 2013 N.J.E., who was in Belgium, was placed in detention by an investigating judge of the Ghent
Court of First Instance. A few days later the Committals Division of the same court declared the arrest warrants to be enforceable. However, on appeal, the Indictments Division refused execution of the warrants, finding that there were substantial reasons to believe that execution would infringe N.J.E.’s fundamental rights. N.J.E. was released.
The Federal Prosecutor’s Office lodged an appeal on points of law which was dismissed by the Court of Cassation.
In 2015 an investigating judge of the Audiencia Nacional issued a new European arrest warrant in
respect of N.J.E. The Belgian authorities refused to execute it on the same grounds as before.
THE DECISION OF THE COURT
Article 2 (right to life)
Spain had requested Belgium’s cooperation in the context of the Framework Decision on the
European arrest warrant. In that regard, the Court considered that it should examine (1) whether
the Belgian authorities had responded properly to the request for cooperation, and (2) whether the
refusal to cooperate had been based on legitimate grounds.
As to the first question, the Court observed that the Belgian authorities had provided their Spanish
counterparts with a properly reasoned response.
In 2013 the Belgian Court of Cassation had held that the refusal to execute the European arrest
warrants had been legally justified because of the risk that N.J.E.’s fundamental rights would be
infringed in the event of her surrender to Spain, and in particular the risk that she would be detained
in conditions contrary to Article 3 of the Convention. In 2016 the Indictments Division had found that
the fresh information relied on in the new arrest warrant did not lead to a different assessment, and
that the earlier assessment had in fact been confirmed by the observations issued by the United
Nations Human Rights Committee in 2015 (the Committee’s sixth periodic report on Spain, which,
among other things, urged the Spanish authorities to put an end to incommunicado detention).
The Court therefore considered that the approach taken by the Belgian courts was compatible with
the principles set out by the Court in its judgment in Pirozzi v. Belgium, according to which, in the
context of execution of a European arrest warrant by a European Union member State, the mutual
recognition mechanism should not be applied automatically and mechanically to the detriment of
fundamental rights.
As to the second question, the Court emphasised that a risk to the person whose surrender was
requested of being subjected to inhuman or degrading treatment on account of the conditions of
detention in Spain could constitute a legitimate ground for refusing to execute the European arrest
warrant and thus for refusing cooperation with Spain. Nevertheless, the finding that such a risk
existed had to have a sufficient factual basis, in view also of the presence of third-party rights. In
that regard the Court made the following observations.
In 2013 the Indictments Division had based its decision mainly on international reports and on the
context of “Spain’s contemporary political history”. It had also referred to the report prepared
following the CPT’s4 periodic visit in 2011. In 2016, despite the information provided in support of
the European arrest warrant issued on 8 May 2015, particularly regarding the characteristics of
incommunicado detention, the Indictments Division had found that the information received did not
enable it to depart from the assessment it had made in 2013, but had not conducted a detailed,
updated examination of the situation as it applied in 2016. Likewise, it 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. Furthermore, the Belgian authorities had not availed
themselves of the possibility under Belgian law (section 15 of the European Arrest Warrant Act) to
request further information concerning the application of the prison regime in N.J.E.’s case, and in
particular 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. Consequently, the scrutiny
performed by the Belgian courts during the surrender proceedings had not been sufficiently
thorough for the Court to find that the ground they relied on in refusing N.J.E.’s surrender, to the
detriment of the applicants’ rights, had had a sufficient factual basis. Accordingly, Belgium had failed
in its obligation to cooperate arising out of the procedural aspect of Article 2 of the Convention.
There had therefore been a violation of that provision.
However, the Court stressed that the finding of a violation 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
treatment contrary to Article 3 of the Convention if she were surrendered to the Spanish authorities.
More generally, the Court’s judgment could not be construed as diminishing States’ obligation to
refrain from extraditing a person to a requesting country where there were substantial reasons for
believing that the person concerned, if extradited to that country, would run a real risk of being
subjected there to treatment contrary to Article 3, and hence to verify that no such risk existed.
Just satisfaction (Article 41)
The Court held that Belgium was to pay the applicants 5,000 euros (EUR) each in respect of
non-pecuniary damage and EUR 7,260 jointly in respect of costs and expenses.
Separate opinion
Judge Spano expressed a concurring opinion, joined by Judge Pavli(echrcaselaw.com).
