Compensation for terrorists relatives and the presumption of innocence.
Presumption of innocence and compensation for death of a relative by terrorists. The applicants complained under Article 6 § 2 (presumption of innocence) that they had been denied the state compensation they were entitled to as relatives of victims of terrorism, because their relatives were allegedly involved in these terrorist groups themselves.
The Court held that the contractual provision relied on by the applicants (Article 6 § 2) did not apply to their cases. There was no link between the criminal charges in Spain against the relatives of the applicants for membership in a terrorist organization and the decision of the courts and authorities to refuse to pay further state compensation for these deaths. The ECtHR overwhelmingly dismissed the appeals as inadmissible.
Article 6 § 2
The applicants in these two case were 10 Spanish nationals, three of whom live in Bilbao, two in San
Sebastian and Urretxu, and one each in Ascain (France), Olazagutia and Zestoa. A full list can be
found in the decisions published in the Court’s Hudoc database.
According to reports from the Ministry of the Interior, the relatives were killed between 1979 and
1985 by terrorist groups, the Batallón Vasco Español (BVE), the Grupos Antiterroristas de Liberación
(GAL), Acción Nacional Española (ANE) or the Grupos Armados Españoles (GAE), while they were
living in France.
As families of the victims of terrorism, most of the applicants were paid compensation under a
Spanish law of 1999, while one was also granted a special lifetime allowance under a royal decree.
The applicants applied for further compensation in 2012 under a new 2011 law on compensating the
victims of terrorism. However, the authorities declined to pay, citing a provision of the 2011 law and
the European Convention on the Compensation of Victims of Violent Crimes, which allowed them to
refuse compensation for the killing of people who had themselves been involved in terrorism.
The authorities’ decisions were upheld by the Audiencia Nacional (Administrative Chamber), which
found that Article 8 § 2 of the European Convention on the Compensation of Victims of Violent
Crimes, in force in Spain since 2002, allowed the State to reduce or refuse compensation on account
of a victim’s involvement in organised crime or membership of an organisation which engaged in
crimes of violence.
The administrative authorities and the courts cited police reports which indicated that the
applicants’ relatives’ had been members of the ETA terrorist organisation. These reports referred to
different sources (statements made by other ETA members, press articles, and publications related
THE DECISION OF THE COURT…
Article 6 § 2
The Court joined the applications in both cases owing to the similarity of the subject matter.
The Government submitted that the applicants’ relatives had never faced criminal proceedings in
Spain and that their possible criminal responsibility had been extinguished by their death. All the
authorities and courts had had to do for the compensation question was to examine whether the
legal requirements to obtain additional compensation for the death of the applicants’ relatives had
been met, which included verifying whether they had been members of ETA and whether the
provision of the European Convention on the Compensation of Victims of Violent Crimes could be
applied to them.
The applicants in both cases disputed the argument that there had been no link between the
compensation and criminal proceedings. They stressed in particular the fact that as the
compensation scheme excluded people who were members of a criminal organisation, that
exclusion could only be based on a criminal conviction and not on mere suspicions in police reports.
The Court reiterated that Article 6 § 2 applied to people who had been “charged with a criminal
offence”. It also considered that what came into play in these two cases was the second aspect of
the protection the provision offered, namely preventing the principle of the presumption of
innocence from being undermined after any proceedings that had ended without a conviction.
The Court’s task in these cases was to examine whether there was a link between any prior criminal
proceedings against the applicants’ relatives concerning their alleged membership of ETA and the
compensation proceedings. However, it did not take a stance on the applicants’ right to
compensation per se.
The Court noted that the men concerned in applications 73911/16 and 5155/17 — respectively
Enrique Gómez Álvarez, allegedly killed by members of the Batallón Vasco Español in June 1979, and
Justo Elizarán Sarasola, who died in October 1979 after allegedly being shot by members of Acción
Nacional Española or Grupos Armados Españoles — did not appear to have faced any formal criminal
investigation in Spain before their deaths. Mr Gómez Álvarez had been arrested in France in January
1975, but that had not been due to criminal proceedings in his home country.
Furthermore, part of the evidence used in the compensation proceedings to establish the two men’s
ETA activities had come from books and the media and declarations by other alleged ETA members.
It was therefore clear that there had been no “criminal charge” within the meaning of the Court’s
case-law by Spain against the applicants’ relatives. The compensation decisions could therefore not
have cast doubt on any previous criminal case and Article 6 § 2 did not apply to them.
The only criminal proceedings brought against the man concerned by application 233/17, José María
Echaniz Maiztegui, allegedly killed by members of the Grupos Antiterroristas de Liberación in
September 1985, had been conducted in France for the unlawful possession of firearms.
He had been given a prison sentence, but those proceedings had not been linked to any Spanish
investigation or extradition request. Furthermore, the applicants had not claimed the protection of
the presumption of innocence in relation to that criminal charge , rather they had been concerned
about membership of a terrorist organisation. Article 6 § 2 was thus not applicable to the
The Court noted that the police reports produced for the compensation proceedings concerning the
man involved in application no. 3086/17, Ángel Gurmindo Lizárraga, allegedly killed by members of
the Grupos Antiterroristas de Liberación in February 1984, had referred to previous criminal
convictions in France for association with an illegal group, referring to ETA.
The French convictions had not had any link to Spanish criminal proceedings. Even if a link could be
established between the French convictions and the Spanish compensation case, the presumption of
innocence ended after a conviction. As the French convictions had been for a charge which was
equivalent to the one for which the applicants had claimed the protection of Article 6 § 2, that
provision could not apply to the compensation proceedings.
Applications 73911/16, 5155/17, 233/17 and 3086/17 thus had to be rejected as inadmissible for
being incompatible with the provisions of the Convention.
The Court’s considerations were slightly different for the men concerned in the second case,
applications 75529/16 and 79503/16. They were respectively Juan María Otegui Elicegui and José
Sabino Echaide Ibarguren, both allegedly killed by members of the Grupos Antiterroristas de
Liberación in August 1985 and September 1985.
Given that in this case there had been criminal investigations into the men in Spain for activity
related to ETA (in respect of which the Spanish authorities had issued search and arrest warrants
against them) before they had left for France, the Court accepted that they had been charged with a
criminal offence within the meaning of the Convention. It also assumed that those criminal
proceedings had been discontinued as a result of their death.
Nevertheless, the Court noted that the compensation cases had not required the authorities or
courts to have regard to the contents or outcome of the previous criminal proceedings. In fact, the
use of the exception clause to deny compensation did not require the alleged membership of a
criminal or violent organisation to be established by criminal proceedings and the authorities could
in practice rely on other sources for such information, as they had done.
The police reports on the two men used in the compensation proceedings had indeed referred to
the previous investigations, but they were not the only elements taken into account to find they had
been members of ETA and they had therefore not been decisive for the compensation issue. The
Court also took note of the Government’s argument that the investigations could not have led to a
prosecution or conviction as the men had fled to France.
Lastly, the Court noted that the Audiencia Nacional judgment in application no. 79503/16 had
explicitly distinguished the issue of determining the family’s right to compensation for the death of
their relative from the question of that relative’s criminal liability. The burden of proof and the rules
of evidence could also be different before administrative and criminal courts.
The Court held that the applicants in these two applications had not demonstrated the necessary
link between the discontinued criminal proceedings relating to their relatives and the compensation proceedings, meaning that Article 6 § 2 was not applicable to the latter. The applications had to be declared inadmissible for being incompatible with the provisions of the Convention (echrcaselaw.com).