With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.
These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.
But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.
The facts of the case
The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Belgium, however, decided not to execute the EAWs, holding that, upon surrender, N.J.E. would have been exposed to the real risk of human rights violations. The decision was based on the 2011 Report of the European Committee for the Prevention of Torture, which criticised the persistence of a regime of incommunicado detention in the Spanish legal system. According to the Belgian courts, the fact that this special regime of imprisonment might have been applied to N.J.E was sufficient to rule out her surrender.
In 2015, Spain issued another EAW. Belgium, however, refused to execute it on the same ground, this time referring to the 2015 Concluding Observations on Spain of the UN Human Rights Committee, which ‘reiterate[d] its concern at the practice of court-authorized incommunicado detention’. On 27 July 2016, the Belgian Court of Cassation confirmed the lower court’s findings and the decision concerning the third EAW became final.
The judgment of the Court
Within six months from the decision of the Court of Cassation, the applicants turned to Strasbourg claiming that the Belgian authorities’ decision not to execute the EAW had impeded the prosecution of their father’s alleged murderer in Spain.
In their original complaint the applicants raised the violation of article 6 of the Convention. However, pursuant to the jura novit curia principle, the second section of the Court decided to adjudicate the case from the standpoint of article 2 of the Convention (Romeo Castaño, paras 29-30). Thus qualified, the applicants’ complaint was not directed against the Belgian authorities’ failure to perform an effective investigation into the murder, but on their lack of cooperation with Spain for the purpose of the EAW proceedings (ibid, paras 38-39).
In granting the applicants’ argument, the Court found that the refusal to execute the EAWs was not based on legitimate grounds (ibid, para 82). To reach this conclusion, the Court pointed to the fact that the final decision not to enforce the EAWs on the ground that the surrender would have exposed N.J.E. to the real risk of being subjected to treatment contrary to article 3 of the Convention was based exclusively on the findings of two international reports, without any individualised assessment of the specific case (ibid, para 86).
In other words, the Court did not rule out the possibility, for the requested State, not to execute a EAW based on the risk of ill-treatment under article 3 of the Convention, but stated that, in light of the rights of third parties, to do so a State must give a sufficient factual basis (ibid, para 85).
Indeed, the Court noted that, under both the EU Framework Decision on the European Arrest Warrant and the Belgian law which implemented it, the requested authorities could have asked Spain additional information concerning the place and the conditions of detention of N.J.E. in order to obtain the material necessary to establish whether, in the specific case, the risk of ill-treatment upon surrender was concrete and real (ibid, para 89).
In conclusion, as noted in early comments, the Court is mindful in clarifying that the judgment is by no means to be read as loosening the article 3 obligations on the Contracting States in cases concerning extradition: the violation of article 2 stems from the ‘insufficient factual basis’ relied upon by the Belgian jurisdictions to halt the surrender, rather than from the refusal to enforce the EAW per se (ibid, para 92).
The development in the Court’s case law concerning extradition
This caveat notwithstanding, the above conclusion marks an important development in the Court’s case law concerning extradition.
Since Soering, the Court established that ‘a person’s […] extradition may give rise to an issue under article 3 of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that article’ (more recently, Trabelsi v Belgium, 2014, para 119). Later, the same reasoning was applied with regard to article 6 of the Convention under the ‘flagrant denial of justice’ test (among others, Othman (Abu Qatada) v the United Kingdom, 2012, para 258) and even in the context of a surrender governed by the EU Framework decision on the EAW (for example, Pirozzi v Belgium, 2018, para 57).
Moreover, the Court found that a Contracting State’s decision not to request the extradition of an accused or convicted person may engage its responsibility under either article 2 (for example, Agache v Romania, 2009, para 83) or article 3 of the Convention (among other, Nasr and Ghali v Italy, 2016, paras 270-272).
However, the Court had not yet found a violation of the Convention as a result of a requested State’s decision not to extradite a suspect.
Yet, this conclusion did not come out of the blue. Instead, it follows the progressive development in the Court’s case law concerning extradition. An analogous complaint was raised in the case of Gray, where Germany refused to surrender a national to the UK, where he was accused of medical malpractice, in order to try him before German courts, but the Court dismissed it finding that the decision was taken ‘in accordance with the relevant domestic and international law’ (Gray v Germany, 2014, para 93). Moreover, in the cases of Palić, and Nježić and Štimac, where the applicants claimed a violation of article 2 in connection, inter alia, with the failure to obtain the extradition of some suspects from Serbia, the Court exonerated the respondent States noting, among other things, that ‘it [was] open to the applicant to lodge an application against Serbia if she consider[ed] that she [was] the victim of a breach by Serbia of her Convention rights’ (Palić v Bosnia and Herzegovina, 2011, para 65; Nježić and Štimac v Croatia, 2015, para 68).
This is precisely the argument advanced by the applicants – and accepted by the Court – in Romeo Castaño.
Therefore, the case under review establishes an important (and foreseeable) development in the Court’s case law concerning extradition; a development which is also based on EU law, as interpreted by the Court of Justice of the European Union (CJEU).
The ‘souci de symétrie’ between the EU law and the Convention
The solution adopted by the Court in Romeo Castaño follows the precedent set by the CJEU in its recent jurisprudence.
Drawing upon the findings made in joined cases C-404/15 and C-695/15 (2016), the CJUE established that (i) the judicial authority requested to execute a EAW is ‘bound to determine specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender, [the requested person] will run a real risk of being subject […] to inhuman or degrading treatment’ and that (ii) to perform this assessment ‘that authority must, pursuant to Article 15(2) of the Framework Decision, request to […] the issuing Member State that there be provided […] all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained’ (CJEU, case C-220/18 PPU, 2018, paras 62-63).
Against this background, the Court’s judgment in Romeo Castaño represents a step further in the continuing process of symmetry between the European Convention and the acquis communautaire, a process that, as the vice-president of the Court puts it in his concurring opinion, calls for ‘meticulously elaborated solutions’ allowing to preserve, in their essence, the principles established by the former, without disrupting the institutional balance of the latter (Romeo Castaño, concurring opinion of Judge Spano, joined by Judge Pavli, para 8).
Yet, in Romeo Castaño the European Court added an important element to the equation: the obligation to cooperate under article 2 of the Convention.
The positive obligation to cooperate under article 2 of the Convention
Romeo Castaño is the first case in which the Court sanctioned a State’s failure to cooperate in an investigation concerning an event occurring outside its jurisdiction irrespective of a free-standing obligation under article 2 of the Convention (Romeo Castaño, paras 38-39).
Indeed, the Court clarified that ‘the question is not whether Belgium is responsible for procedural acts or omission within the framework of an investigation into the murder, [investigation] which is exclusively under the jurisdiction of the Spanish authorities’ (ibid., para 80: original in French: ‘la question […] n’est […] pas de savoir si la Belgique est responsible d’actes ou d’omissions procédurales dans le cadre d’une enquête sur l’affaire, laquelle relève exclusivement de la juridiction des autorités espagnoles’. The translation is mine).
This is a major, if careful, development in the Court’s case law.
As it is well known, up to 2001, the Court has consistently held that a State is under a procedural obligation to investigate ‘only in relation to [acts] allegedly committed within its jurisdiction’(Al-Adsani v the United Kingdom [GC], 2001, para 38).
This stance was revised in 2004, when the Grand Chamber held that ‘[a] State’s responsibility may also be engaged on account of acts which have sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction’ (Ilaşcu and Others v Moldova and Russia [GC], 2004, para 317).
However, it was only in the case of Rantsev that the Court accepted to examine ‘the applicant’s article 2 complaint against the Russian authorities concern[ing] their failure to comply with the ‘procedural obligation incumbent on the[m]’ in connection with the murder of the applicant’s daughter, even though the murder itself had occurred in Cyprus; i.e. outside Russia’s jurisdiction within the meaning of article 1 of the Convention (Rantsev v Cyprus and Russia, 2010, paras 207-208). The complaint was not successful on the merits, but it is noteworthy that the Court thus held because, on the one hand, ‘it [could] not be shown that there [were] special features’ justifying the imposition of a ‘free-standing obligation […] on the Russian authorities under article 2 of the Convention to investigate [the] death’ (ibid., paras 243-244) and, on the other hand, there was no ‘legal assistance request’ by Cyprus.
These conclusions are crucial, for if they are read in the negative they allow to establish a State’s responsibility under the Convention in cases where a ‘special feature’ exist or a ‘legal assistance request’ has indeed been advanced.
Thus, in a subsequent case the Court found a violation of article 2 against Azerbaijan for the shortcomings of an investigation into the murder of the applicants’ son. True, the murder was committed in Ukraine, but the Court considered that ‘regardless of where the death occurred, in so far as Azerbaijan assumed the obligation of conducting the investigation under the 1993 Minsk Convention […] it was bound to conduct [it] in compliance with the procedural obligation under article 2’ (Aliyeva and Aliyev v Azerbaijan, 2014, para 57).
This reasoning, which follows the one adopted in Markovic and Others v Italy under article 6 (2006, paras 54-56), was recently developed by the Grand Chamber in Güzelyurtlu and Others v. Cyprus and Turkey (2019), where it adjudicated, from the standpoint of article 2 of the Convention, the failure of the Turkish/TRNC authorities to perform an effective investigation into three murders committed in the part of the territory under the effective control of Cyprus. Albeit refusing to ‘define in abstracto which special feature trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate’, the Grand Chamber affirmed that both the institution of a criminal investigation by the Turkish/TRNC authorities and the circumstance that the suspects fled to the territory under their effective control, ‘would suffice in itself to establish a jurisdictional link with Turkey’ for the purpose of the application of article 2 of the Convention (ibid, paras 190 and 196).
Turning to the merits, the Grand Chamber drew a distinction between transnational cases in which a State’s failure to cooperate was examined as one aspect in the framework of a free-standing obligation to investigate under article 2 of the Convention and other cases, in which such a free-standing obligation did not arise (ibid, para 229).
In the second instance, the Contracting States’ obligation ‘to cooperate effectively with each other’ was premised on the ‘special character [of the Convention] as a treaty for the collective enforcement of human rights’ which ‘may, in some specific circumstances, imply a duty for Contracting States to act jointly and to cooperate’ (ibid., paras 232-233).
Actually, this reasoning is superfluous for the case of Güzelyurtlu and Others, since the Grand Chamber concluded that ‘in the present case […] a free-standing obligation to carry out an article 2-compliant investigation arose in respect of both [Cyprus and Turkey]’ (ibid, para 231), though it found a violation only in respect of the latter.
Yet, it was precisely this argument that allowed to hold Belgium responsible in the case of Romeo Castaño, where the violation of article 2 was not linked to a free-standing obligation to investigate, but merely to the existence of a ‘jurisdictional link’ (i.e. the EAW issued pursuant to the Framework Decision) capable of triggering the obligation to cooperate.
Thus, the absence of a free-standing obligation to investigate under article 2 of the Convention upon Belgium distinguishes Romeo Castaño from the previous transnational cases adjudicated by the Court (e.g. Güzelyurtlu and Others; Aliyeva and Aliyev), while the request of legal assistance under the Framework Decision on the EAW differentiates the case from those in which such a jurisdictional link could not be established (e.g. Rantsev; Cummins and Others v the United Kingdom (2005) and Emin and Others v Cyprys and Others (2010)).
It was the combination between these factors that allowed the Court to adjudicate (and sanction for the first time) the failure of the Belgian authorities to fulfil their positive, procedural obligation to cooperate under article 2 of the Convention.
This is the reason why the importance of the judgment under review is not confined to the specific domain of extradition, but extends to the general functioning of the mechanism of human rights protection established under the Convention.
If anything, one could complain about the very straightforward reasoning contained in the judgment, which merely refers to the case of Güzelyurtlu and Others without developing the premises therein built, and leaves many questions open. Yet, it is to be doubted that this reason alone would suffice to justify a referral of the case to the Grand Chamber under article 43 of the Convention.