Victims of terrorist acts
THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 29. The applicants alleged a violation of Article 2 of the Convention by the Belgian authorities, arguing that the decision not to execute the European arrest warrants prevented the suspected perpetrator of their father’s murder from being prosecuted by the Spanish authorities. The applicants also raised an issue of access to a court under Article 6 of the Convention. 30. The Court reiterates that it has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). 31. In the instant case, noting that the applicants’ complaints cover the same ground, it considers it appropriate to examine them under Article 2 of the Convention alone. The relevant parts of that Article provide: “1. Everyone’s right to life shall be protected by law. ...” AdmissibilityWhether the applicants come within Belgium’s jurisdiction Whether the applicants come within Belgium’s jurisdiction Whether the applicants come within Belgium’s jurisdiction 32. Article 1 of the Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” (a) The parties’ submissions 33. The Government submitted that the present case did not fall within the jurisdiction of the Belgian State within the meaning of Article 1 of the Convention. The applicants were in Spain and the proceedings concerning their father’s murder had been conducted, and continued to be conducted, in the Spanish courts. Moreover, the murder had taken place in Spain and no connection with Belgium had been invoked. Furthermore, the Belgian authorities’ refusal to execute the European arrest warrant had been based on considerations relating to the treatment of prisoners in Spain. While it was true that N.J.E now came prima facie within the jurisdiction of the Belgian courts, it could not be inferred from this that the same applied to the victims, who had no connection to that country. While acknowledging that the procedure for the execution of a European arrest warrant did not allow the applicants to intervene and that the decisions complained of had had an (indirect) impact on their interests, the Government nevertheless stressed that the applicants had never been parties to proceedings in Belgium. 34. The Government submitted that the applicants essentially came within Spain’s jurisdiction and should therefore have lodged a complaint against Spain with the Court. It was primarily Spain’s responsibility to conduct an investigation into their father’s murder in 1981 and to prosecute the suspected perpetrators and N.J.E, in accordance with Article 2 of the Convention. The present case was to be distinguished from cases in which the Court had recognised that the State to which the suspected perpetrator had fled could have jurisdiction within the meaning of Article 1 of the Convention. Firstly, Belgium had never instituted an investigation into the murder of the applicants’ father. Secondly, it could not be argued that the Belgian State had any obligation under Article 2 to obtain evidence. There had never been any question of this in the proceedings concerning the European arrest warrant, and in view of the time elapsing between the murder and the first set of proceedings in Belgium, the idea of still being able to gather evidence was somewhat illusory. Thirdly, the Government stressed that Belgium had cooperated with Spain and that it was only in the course of that cooperation that the Belgian courts, applying Article 3 of the Convention in particular, had decided not to surrender N.J.E. From that standpoint it was clear that the harm alleged by the applicants did not stem from the conduct of the Belgian authorities, but rather from the situation in Spanish prisons at the time of the refusal decision. 35. The applicants argued that although, from a criminal-law perspective, prosecution of the offence in the present case was a matter for the Spanish judicial authorities, it had not been possible to bring that prosecution to a successful conclusion as the actual perpetrator had escaped the jurisdiction of the Spanish courts. In their view, it was not for the Belgian authorities to carry out any investigative measures, as that stage had already been completed in Spain; their task was to allow N.J.E. to be tried in Spain, by executing the European arrest warrant issued in 2015. The Spanish authorities had done everything in their power to investigate the case by instituting an independent investigation and carrying out all the necessary inquiries in order to establish the facts and the persons responsible. (b) The Court’s assessment 36. The Court reiterates that “jurisdiction” under Article 1 of the Convention is a threshold criterion and is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 178, 29 January 2019). 37. The Court further observes that, in the context of the procedural limb of Article 2 concerning deaths occurring under a different jurisdiction from that of the State in respect of which the procedural obligation is said to arise, the Grand Chamber has recently specified that, where no investigation or proceedings have been instituted in the respondent State in respect of a death which has occurred outside its jurisdiction, a jurisdictional link may nevertheless be established and a procedural obligation may arise for that State under Article 2. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, “special features” in a given case may justify departure from this approach (ibid., § 190, referring to Rantsev v. Cyprus and Russia, no. 25965/04, §§ 243-44, ECHR 2010 (extracts)). 38. In the present case the applicants’ complaint under Article 2 of the Convention with regard to Belgium concerns the alleged failure of the Belgian authorities to cooperate with the Spanish authorities by taking the necessary steps to enable the suspected murderer of the applicants’ father, who had fled to Belgium, to be tried in Spain. 39. Hence, unlike in the cases of Güzelyurtlu and Others and Rantsev, cited above, the Article 2 complaint is not based on the assertion that the Belgian authorities failed to fulfil a procedural obligation to investigate the murder themselves. 40. That being said, the Court does not see this as a reason for distinguishing the present case for the purposes of determining whether there is a jurisdictional link with Belgium, and considers it appropriate to apply the principles set forth in that regard in Güzelyurtlu and Others. 41. Applying, mutatis mutandis, the case-law cited above (see paragraph 37), the Court notes that N.J.E., the suspected perpetrator of the killing, fled to Belgium and remains there to this day. In the context of the mutual undertakings given by the two States in the sphere of cooperation in criminal matters, in this instance under the European arrest warrant scheme (see paragraphs 23-24 above), the Belgian authorities were subsequently informed of the Spanish authorities’ intention to institute criminal proceedings against N.J.E., and were requested to arrest and surrender her. 42. These special features of the case suffice for the Court to consider that a jurisdictional link exists between the applicants and Belgium for the purposes of Article 1 of the Convention with regard to the applicants’ complaint under the procedural limb of Article 2 of the Convention (see, mutatis mutandis, Güzelyurtlu and Others, cited above, §§ 194-96). 43. The Court therefore concludes that the Government’s preliminary objection of incompatibility ratione loci should be dismissed. In assessing the complaint on the merits, it will have to determine the scope and extent of the procedural obligation on Belgium to cooperate in the circumstances of the present case. Whether the applicants have victim status (a) The parties’ submissions 44. The Government questioned the existence of a causal link between the refusal of the Belgian courts and the hypothetical failure ultimately to recognise N.J.E.’s responsibility. The option of the European arrest warrant had been chosen by the Spanish authorities. When the Belgian authorities had refused execution, the Spanish authorities could also have explored other avenues. Other procedures, such as conducting proceedings in absentia in Spain, should have been possible. The applicants’ argument that the Spanish Constitution prohibited such proceedings, and that the Belgian authorities should therefore be more “cooperative”, was problematic in that it made Belgium’s obligations under Article 2 of the Convention contingent on the provisions of the Spanish Constitution; at the same time, Belgium could not be criticised for complying with its obligations under Article 3 of the Convention. 45. The applicants, relying on the Court’s case-law, submitted that they had victim status as the children of the murder victim. In view of the provisions of both Spanish and Belgian law, the issuing of a European arrest warrant by the Spanish authorities was the only appropriate means of securing N.J.E.’s prosecution. In their view, the fact that no proceedings could be brought against N.J.E. was attributable solely to the conduct of the Belgian authorities. In that connection the applicants asserted that the reason why sentence could not be passed in absentia in Spain was in order to prevent infringements of the right to a fair trial under Article 24.1 of the Spanish Constitution. The prohibition applied to acts punishable by a custodial sentence of more than one year (Article 841 of the Code of Criminal Procedure). (b) Observations of the third-party interveners 46. The Spanish Government confirmed that the refusal of the Belgian judicial authorities meant that the requested person would never be prosecuted for her involvement in the murder. If she was not surrendered she could not be tried in the Spanish courts. Furthermore, according to the Belgian courts’ own findings, N.J.E. could under no circumstances be tried in the Belgian courts if she was not surrendered to Spain. 47. N.J.E. stressed that victims who lodged a civil claim could not intervene in the proceedings for execution of a European arrest warrant, since the investigating courts did not rule on the merits of the case or on damages, but simply returned a suspect to the country where he or she was the subject of an ongoing judicial investigation. Likewise, civil parties did not fall within the jurisdiction of the aforementioned courts, as the procedure for execution of a European arrest warrant was an inter-State procedure, as was clear from the EU framework decision and the Belgian legislation on the European arrest warrant. (c) The Court’s assessment 48. The Court refers to the applicable principles regarding victim status for the purposes of Article 34 of the Convention, as set out in particular in its judgment in Vallianatos and Others v. Greece ([GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). 49. The Court observes, in particular, that it has accepted that close family members of a person whose death or disappearance is alleged to engage the responsibility of the State can themselves claim to be indirect victims of the alleged violation of Article 2 of the Convention (see, for instance, McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 ‑ III (in relation to children), and Van Colle v. the United Kingdom, no. 7678/09, § 86, 13 November 2012 (in relation to parents)). 50. Regard being had to this case-law, the Court considers that the applicants in the present case have victim status for the purposes of Article 34 of the Convention. Exhaustion of domestic remedies (a) The parties’ submissions 51. The Government submitted that the applicants had not exhausted domestic remedies. While one of the applicants had joined the criminal proceedings in the Spanish courts as a civil party, this was irrelevant in so far as their application was only against Belgium. Although the application was directed solely against the Belgian State, the applicants had not taken any procedural steps in Belgium apart from the “informal courtesy correspondence” between one of the applicants and the President of the Court of Cassation. The Government conceded that the applicants could not be criticised for not intervening in the proceedings for execution of the European arrest warrant as victims of the alleged offence, since those proceedings mainly concerned the public prosecutor’s office and the arrested person whose surrender was requested. However, it was clear from the letter of 27 November 2014 from the President of the Court of Cassation (see paragraph 16 above) that the door had been open to dialogue in order to explore with the federal prosecuting authorities possible means of overcoming the refusal to execute the European arrest warrant. In their additional observations the Government also referred to the option available to the applicants of making an application under the urgent procedure or bringing an action for damages. 52. For their part, the applicants argued that they had exhausted domestic remedies in Spain, as one of the applicants had participated as a civil party in the criminal proceedings in the Spanish courts concerning their father’s murder. As to Belgium, they contended that domestic remedies had been exhausted by means of the appeals lodged by the Federal Prosecutor’s Office, given the latter’s task of representing victims, and that they could not lodge any other appeal or take other procedural steps. In their view, the letter they had received from the President of the Court of Cassation was to be regarded purely as a courteous and informal reply to the victims. (b) The Court’s assessment 53. The Court reiterates that the rule on the exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, given the context of protecting human rights. The Court has also accepted that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014, and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-84, 9 July 2015, with further references). 54. As regards the burden of proof, it is incumbent on the respondent Government to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others, cited above, § 77, and Gherghina, cited above, §§ 88-89, with further references). 55. Turning to the particular circumstances of the present case, the Court notes that the Spanish authorities instituted a criminal investigation into the case and that one of the applicants joined the criminal proceedings against N.J.E. in Spain as a civil party. However, the present case concerns the proceedings for execution of the European arrest warrant in the Belgian courts, which are the direct source of the current inability to prosecute N.J.E.; there is no provision, either under the framework decision or under Belgian law, for the applicants to take part or intervene in those proceedings. 56. As to the Government’s argument concerning the letter from the President of the Court of Cassation and their contention that the applicants could have contacted the Belgian Federal Prosecutor’s Office with a view to finding a means of overcoming the refusal to execute the European arrest warrant, the Court considers that this option is vague and speculative and cannot be regarded as capable of remedying directly the impugned state of affairs or offering reasonable prospects of success (see, in particular, paragraphs 11 and 26 above). 57. As regards an urgent application or an action for damages, the Court notes that the Government did not produce any evidence in support of their claim apt to demonstrate that these remedies would be effective in the present case. 58. Hence, while it is true that the applicants did not make use of the remedies suggested by the Government, the Court considers that the Government, with whom the burden of proof lies in this regard (see paragraph 54 above), have not demonstrated that the use of the remedies to which they referred would be capable of affording redress in respect of the applicants’ complaint under Article 2 of the Convention. 59. In view of the foregoing, the Court considers that the application should not be dismissed for failure to exhaust domestic remedies. The six-month time-limit (a) The parties’ submissions 60. Lastly, the Government raised an objection of failure to comply with the six-month time-limit. They argued that the harm alleged by the applicants did not stem from the refusal to execute the 2015 European arrest warrant, but rather from the decision of the Indictments Division of 31 October 2013, upheld by the Court of Cassation on 19 November 2013, refusing to execute the European arrest warrants issued in 2004 and 2005. They therefore criticised the applicants for not challenging this first refusal decision before the Court. Moreover, the Indictments Division had held on 14 July 2016 that the 2015 arrest warrant did not contain any new information compared with the warrants issued in 2004 and 2005. 61. The applicants argued that the information concerning the follow-up by the CPT, referred to in the European arrest warrant issued on 8 May 2015, had clarified the situation in Spanish prisons and the conditions of the detention regime applicable to suspected terrorists, prompting the Spanish judicial authorities to issue this new arrest warrant, the refusal to execute which had triggered the start of a new six-month period. They therefore submitted that this period had started running on 27 July 2016, the date of the final Court of Cassation judgment terminating the domestic proceedings. (b) The Court’s assessment 62. In the present case the Court notes that, although the first set of surrender proceedings indeed ended with a Court of Cassation judgment of 19 November 2013, the Government did not adduce any evidence demonstrating that the applicants, who had not been parties to the proceedings in question, had been informed of this development at that time. Only as of the time when the applicants wrote to the President of the Court of Cassation, on 17 November 2014 (see paragraph 16 above), can it be said with certainty that they were aware of the Belgian authorities’ refusal. On 8 May 2015, that is, within six months of that contact, a fresh European arrest warrant based on new information was issued by the Spanish courts (see paragraph 17 above). There followed a new set of proceedings for execution of the arrest warrant, which terminated with a Court of Cassation judgment of 27 July 2016. 63. Reiterating that Article 35 § 1 of the Convention cannot require an applicant to lodge his or her complaint with the Court before his or her position in connection with the matter has been finally settled at the domestic level, the Court considers that the six-month period in the present case began running on 27 July 2016. 64. In the light of the foregoing, the Court concludes that the Government’s objection that the application was lodged out of time should be dismissed. Conclusion as to admissibility 65. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 66. The applicants contended that the Belgian State’s refusal to execute the European arrest warrants issued by the Spanish authorities in respect of the suspected perpetrator of their father’s murder was unjustified and manifestly unreasonable, and was therefore in breach of the procedural aspect of Article 2 of the Convention. Taking as its basis an arbitrary assessment of one of the exceptions allowed to the execution of a European arrest warrant, it made it effectively impossible for the suspected perpetrator of their father’s murder to be tried. 67. In the applicants’ view, even if the Belgian courts had noted a risk of a breach of N.J.E.’s fundamental rights, they should not have refused to surrender her on that ground alone. The Belgian courts had had a duty to specify the alleged risk in the individual case by examining the specific and practical impact which the surrender was liable to have on N.J.E. In order to do that, they should have requested more information from the Spanish authorities concerning the conditions of detention to which N.J.E. would have been subjected. This would have enabled Spain, as the State issuing the European arrest warrant, to provide assurances that N.J.E. would not be subjected to inhuman or degrading treatment. 68. As to the reasons given by the Belgian courts, the applicants contended that these were political rather than legal and that they were inaccurate. During the second set of surrender proceedings the Belgian courts had merely echoed the arguments advanced by the Indictments Division of the Ghent Court of Appeal in its order of 31 October 2013, thereby reproducing a “false, mistaken and inappropriate” portrayal of Spain. 69. In contrast to the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), the international reports in the present case were not sufficient to rebut the presumption of observance of human rights. The shortcomings that had been highlighted related solely to the conditions of incommunicado detention, which did not apply in the case of a surrender requested for the purposes of a criminal prosecution, as in the present case. In view of the time that had elapsed since the events in issue and the fact that “the legal criteria for application” were not met (see paragraph 78 below), and given that the other members of the commando unit had already been convicted, the regime of incommunicado detention in police custody would in no circumstances be applied in N.J.E.’s case, and she would be brought directly before the judicial authorities. The applicants criticised the Belgian authorities for not obtaining this information from their Spanish counterparts. 70. Lastly, relying on a report from the State Secretariat for Security of the Spanish Interior Ministry, the applicants asserted that between 2011 and 2017 European arrest warrants issued by the Spanish judicial authorities, concerning 70 individuals linked to the terrorist organisation ETA, had been executed and that the countries executing the warrants (including France, the United Kingdom and Italy) had not identified any risk of a violation of the fundamental rights of the persons to be surrendered. Moreover, it emerged from the report that Belgium itself had executed four European arrest warrants issued by the Audiencia Nacional in respect of suspected members of ETA (in 2005, 2010 and 2011). (b) The Belgian Government 71. The Belgian Government stressed that the obligations arising under the procedural limb of Article 2 lay first and foremost with the Spanish State. While it was true that the Court had found that, where several States were involved, the other States could also have obligations under Article 2 of the Convention, the Court should find in the present case that Belgium had fulfilled its obligation to cooperate. The Belgian judicial authorities had arrested N.J.E. Only later, during the proceedings before the investigating courts, had it become clear that N.J.E. could not be surrendered owing to the real risk that she would be subjected to ill-treatment in Spanish prisons. Hence, although the Belgian authorities had wished to cooperate with Spain, their obligations under Article 3 of the Convention had prevented this cooperation from resulting in N.J.E.’s surrender. 72. The Government emphasised the very awkward situation facing the Belgian authorities in that regard. Whatever option they chose they were in danger of breaching the Convention. That situation was especially regrettable given that Belgium was not responsible either for the criminal investigation in Spain or for the situation in Spanish prisons and that no investigation was being conducted in Belgium. 73. In such a situation the Court’s role was to ascertain whether the national authorities had struck a fair balance between the competing rights and had taken all the relevant factors into account. In that connection, given the absolute nature of Article 3, it should be regarded as normal for the Belgian judicial authorities to give precedence to the protection of this absolute right over their duty to cooperate in the context of the procedural limb of Article 2. 74. The Government further stressed that the Belgian courts had based their decisions on reports by the CPT and the United Nations Human Rights Committee. Consequently, they could not be said to have taken those decisions lightly, in arbitrary fashion or without credible supporting information. 75. Lastly, the Government argued that the presumption of protection of human rights which underpinned the system of mutual trust between EU member States, of which the European arrest warrant formed a part, was not an “irrebuttable presumption”. Referring to recitals 12 and 13 of the Framework Decision on the European arrest warrant and to section 4(5) of the Belgian European Arrest Warrant Act, they argued that the principle of mutual trust could not displace the obligation of States Parties to the Convention to satisfy themselves that a person’s removal was not liable to result in an infringement of his or her fundamental rights in the requesting State. 76. Pointing out that in the present case nobody questioned the fact that N.J.E. was of Basque origin and was suspected of involvement in ETA’s activities, the Government submitted that the two criteria laid down by the Court with regard to Article 3 of the Convention – namely, the availability of reliable international reports demonstrating the existence of the risks in question and the ability of the applicant to demonstrate that he or she belonged to a group targeted by the measures allegedly contrary to that provision – had been met in the present case. 77. The Government concluded that in view of the information available to the Belgian courts at the time they took their decisions, and of the obligations flowing from Article 3 of the Convention, those courts had acted in full compliance with Belgium’s obligations under the Convention and could not be said to have infringed Article 2 of the Convention. (c) Observations of the third-party interveners 78. The Spanish Government contended that the Belgian authorities’ refusal to execute the European arrest warrant had been based on general, erroneous considerations rather than on any actual circumstance applicable to the requested person. They argued in particular, citing the report on the Spanish legislation concerning incommunicado detention in police custody referred to in the European arrest warrant, that the legislation in question was not applicable in N.J.E.’s case, as the legal regime in question applied only for the first five days following the initial detention of a suspected terrorist, in order to prevent evidence being lost or the damage caused to the victims being aggravated, and to prevent further attacks. Moreover, Spain was a democracy of almost forty years’ standing, with one of the most advanced constitutions with regard to human rights protection, and was the country with the fewest cases before the Court in relative terms. Relying on the Court’s case-law, the Spanish Government concluded that there was no real or substantial risk that N.J.E. would be subjected to any violation of Article 3 if she were tried before the Spanish courts. The Court’s assessment 79. Having already concluded that the applicants come within Belgian jurisdiction, the Court must now determine the extent and scope of Belgium’s procedural obligation to cooperate in the circumstances of the present case (see paragraphs 42-43 above). It will then have to ascertain to what extent Belgium complied with that obligation. 80. The Court observes that the applicants’ complaint under Article 2 of the Convention stemmed from the refusal of the Belgian courts to execute the European arrest warrants issued by the Spanish authorities in respect of N.J.E. They complained that the Belgian authorities’ refusal to execute the European arrest warrants deprived them of the enjoyment of their right to an effective official investigation by Spain. As the Court has already stressed, it is therefore not called upon to determine whether Belgium is responsible for any acts or procedural omissions in the context of an investigation into the case, which falls exclusively within the jurisdiction of the Spanish authorities. 81. That being said, the Court observes that in its judgment in Güzelyurtlu and Others (cited above, §§ 232-35), it found as follows in this regard: “232. The Court has previously held that in interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms ... This collective character may, in some specific circumstances, imply a duty for Contracting States to act jointly and to cooperate in order to protect the rights and freedoms they have undertaken to secure within their jurisdiction ... In cases where an effective investigation into an unlawful killing which occurred within the jurisdiction of one Contracting State requires the involvement of more than one Contracting State, the Court finds that the Convention’s special character as a collective enforcement treaty entails in principle an obligation on the part of the States concerned to cooperate effectively with each other in order to elucidate the circumstances of the killing and to bring the perpetrators to justice. 233. The Court accordingly takes the view that Article 2 may require from both States a two-way obligation to cooperate with each other, implying at the same time an obligation to seek assistance and an obligation to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there. 234. Such a duty is in keeping with the effective protection of the right to life as guaranteed by Article 2. Indeed, to find otherwise would sit ill with the State’s obligation under Article 2 to protect the right to life, read in conjunction with the State’s general duty under Article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, since it would hamper investigations into unlawful killings and necessarily lead to impunity for those responsible. Such a result could frustrate the purpose of the protection under Article 2 and render illusory the guarantees in respect of an individual’s right to life. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective ... 235. The Court notes, however, that the obligation to cooperate, which is incumbent on States under the procedural limb of Article 2, can only be an obligation of means, not one of result, in line with what the Court has established in respect of the obligation to investigate ... This means that the States concerned must take whatever reasonable steps they can to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters. In this connection, the Court is aware that Contracting States cannot cooperate with each other in a legal vacuum; specific formalised modalities of cooperation between States have developed in international criminal law. This approach is consistent with the previous transnational cases under the procedural limb of Articles 2, 3 and 4, in which the Court has generally referred to existing extradition and other mutual assistance instruments binding on the States concerned ... 236. ... In this context, the procedural obligation to cooperate will only be breached in respect of a State required to seek cooperation if it has failed to trigger the proper mechanisms for cooperation under the relevant international treaties; and in respect of the requested State, if it has failed to respond properly or has not been able to invoke a legitimate ground for refusing the cooperation requested under those instruments.” 82. In the present case the mechanism under which Spain sought Belgium’s cooperation was the system put in place within the EU by the Framework Decision on the European arrest warrant (see paragraphs 23-24 above). Applying the principles set out above, the Court must therefore first examine whether, in this context, the Belgian authorities responded properly to the request for cooperation. It must then verify whether the refusal to cooperate was based on legitimate grounds. 83. As regards the first question, the Court observes that the Belgian authorities provided their Spanish counterparts with a properly reasoned response. As the Belgian Court of Cassation pointed out in its judgment of 19 November 2013, the mechanism in question is based on a high degree of trust between member States which entails a presumption of observance of fundamental rights by the issuing State. In view of this principle, any refusal to surrender an individual must be supported by detailed evidence of a clear threat to his or her fundamental rights capable of rebutting the presumption in question. In the present case the Court of Cassation found that the Indictments Division of the Ghent Court of Appeal, in its judgment of 31 October 2013, had provided legal justification, on the basis of section 4(5) of the Belgian European Arrest Warrant Act, for its decision to refuse execution of the European arrest warrants issued by the Spanish investigating judge, on account of the risk of an infringement of N.J.E.’s fundamental rights in the event of her surrender to Spain, and in particular the risk that she would be detained there in conditions contrary to Article 3 of the Convention (see paragraph 12 above). In its judgment of 14 July 2016 the Indictments Division essentially referred to its previous judgment, taking the view that the fresh information referred to in the new European arrest warrant did not call for a different assessment and that the previous assessment was in fact confirmed by the observations made by the Human Rights Committee in 2015 (see paragraph 20 above). 84. The Court notes that the approach taken by the Belgian courts is compatible with the principles it has set out in its case-law (see Pirozzi, cited above, §§ 57-64, which echoes the methodology advocated in Avotiņš v. Latvia [GC], no. 17502/07, §§ 105-27, 23 May 2016). According to that case-law, 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. 85. As to the second question the Court emphasises that, from the standpoint of the Convention, a risk to the person whose surrender is sought of being subjected to inhuman and degrading treatment on account of the conditions of detention in Spain may constitute a legitimate ground for refusing execution of the European arrest warrant and thus for refusing cooperation with Spain. Nevertheless, given the presence of third-party rights, the finding that such a risk exists must have a sufficient factual basis. 86. In this connection the Court notes that the Indictments Division based its decision mainly on international reports and on the context of “Spain’s contemporary political history” (see paragraph 12 above). In its judgment of 31 October 2013 it referred in particular to the report drawn up following the CPT’s periodic visit to Spain a few years previously, in 2011. Despite the information provided in support of the European arrest warrant issued on 8 May 2015, particularly regarding the fact that the CPT’s subsequent reports made no mention of the issue and regarding the characteristics of incommunicado detention in Spain (see paragraph 17 above), the Indictments Division, in its judgment of 14 July 2016, found that the information in question did not enable it to depart from the assessment it had made in 2013 (see paragraph 20 above). It is true that the Indictments Division referred to observations published in 2015 by the Human Rights Committee concerning the existence of incommunicado detention (see paragraph 28 above), but it did not conduct a detailed, updated examination of the situation prevailing in 2016 and did not seek to identify a real and individualised risk of a violation of N.J.E.’s Convention rights or any structural shortcomings with regard to conditions of detention in Spain. 87. The Court also notes that, according to the Spanish Government’s observations concerning the legislative framework governing incommunicado detention, that regime would not be applicable in a situation such as that in the present case. As this issue was not discussed before the Belgian courts, the Court does not consider it necessary to determine it. 88. The Court further takes note of the applicants’ argument, not disputed by the Government, to the effect that numerous European arrest warrants had been issued and executed in respect of suspected members of ETA without the executing States identifying any risk of a violation of the fundamental rights of the persons being surrendered, and that Belgium had been among the executing States (see paragraph 70 above). 89. Lastly, the Court is of the view that the circumstances of the case and the interests at stake should have prompted the Belgian authorities, making use of the possibility afforded by Belgian law (section 15 of the European Arrest Warrant Act, see paragraph 25 above), to request additional information concerning the application of the detention regime in N.J.E.’s case, and in particular concerning the place and conditions of detention, in order to ascertain whether there was a real and concrete risk of a violation of the Convention in the event of her surrender. 90. In view of the foregoing, the Court considers that the examination conducted by the Belgian courts during the surrender proceedings was not sufficiently thorough for it to find that the ground they relied on in refusing to surrender N.J.E., to the detriment of the applicants’ rights, had a sufficient factual basis. 91. The Court therefore concludes that Belgium failed in its obligation to cooperate arising under the procedural limb of Article 2 of the Convention, and that there has been a violation of that provision. 92. The Court would emphasise that this finding of a violation of Article 2 of the Convention does not necessarily entail a requirement for Belgium to surrender N.J.E. to the Spanish authorities. The reason which has prompted the Court to find a violation of Article 2 is the lack of sufficient factual basis for the refusal to surrender her. This in no way releases the Belgian authorities from their obligation to ensure that in the event of her surrender to the Spanish authorities N.J.E. would not run a risk of treatment contrary to Article 3 of the Convention. More generally, this judgment cannot be construed as lessening the obligation for States not to extradite a person to a requesting country where there are serious grounds to believe that if the person is extradited to that country he or she will run a real risk of being subjected to treatment contrary to Article 3 (see, in particular, Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I; and Trabelsi v. Belgium, no. 140/10, § 116, ECHR 2014 (extracts)), and hence to verify that no such risk exists. APPLICATION OF ARTICLE 41 OF THE CONVENTION 93. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 94. The applicants claimed an overall amount of 150,000 euros (EUR) in respect of the non-pecuniary damage they had allegedly sustained on account of the violation of the procedural limb of Article 2 of the Convention. 95. The Government contended that the amount claimed by the applicants did not correspond to the Court’s practice in cases of this kind, and that the award should in any event not exceed EUR 5,000. 96. The Court observes that the Belgian State is not responsible for the death of the applicants’ father or the resulting suffering. Nevertheless, it considers that the Belgian authorities’ failure to cooperate, which made it impossible to prosecute the suspected murderer of the applicants’ father, must have caused the applicants considerable distress and frustration. Ruling on an equitable basis as required by Article 41, it awards the applicants EUR 5,000 each under this head. Costs and expenses 97. Submitting documentary evidence, the applicants claimed EUR 7,260 for the costs and expenses incurred in the proceedings before the Court. 98. The Government left the matter to the Court’s discretion. 99. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, in view of the documents in its possession, the Court considers the amount claimed for the proceedings before it to be reasonable and awards it to the applicants. Default interest 100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 2 (right to life) of the Convention under its procedural aspect (effective investigation). Observing, firstly, that a risk to the person whose surrender was requested of being subjected to inhuman or degrading treatment could constitute a legitimate ground for refusing to execute a European arrest warrant and thus for refusing the cooperation requested, it noted, however, that the finding that such a risk existed had to have a sufficient factual basis. In the present case, the Court found, in particular, that the scrutiny performed by the Belgian courts during the surrender proceedings had not been sufficiently thorough for it to find that the ground they relied on in refusing to surrender N.J.E., to the detriment of the applicants’ rights, had had a sufficient factual basis. Among other things, the Belgian authorities 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. 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 support for the refusal to surrender her that had led the Court to find a violation of Article 2 of the Convention. 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.