CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 juillet 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7BE5FA78 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:11pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s684237A1 { margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s37839E0D { margin-left:10.75pt; margin-bottom:12pt; text-indent:0pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sD85B6316 { margin-top:14pt; margin-left:17pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s6FBCC495 { margin-left:18.95pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .sD9CE0C17 { margin-left:-0.85pt; margin-bottom:12pt; text-indent:0pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s74818F78 { margin-top:14pt; margin-bottom:3pt; text-align:justify; font-family:Arial; list-style-position:inside } .sE7B3A78A { width:1.99pt; font:7pt 'Times New Roman'; display:inline-block } .sFBC99493 { font-style:italic } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s227984AF { margin-top:0pt; margin-left:56.7pt; margin-bottom:0pt; text-indent:-22.7pt; text-align:justify } .s636BD389 { width:12.04pt; font:7pt 'Times New Roman'; display:inline-block } .s12B939F1 { width:9.38pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sFB95DF04 { width:189.96pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s9975F4A9 { margin-top:18pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s2C695DB5 { margin-top:0pt; margin-left:21.3pt; margin-bottom:0pt; text-align:justify } .s7CAC8288 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:center } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sD517F975 { margin-left:33.01pt; text-align:justify; padding-left:2.99pt; font-family:Arial; font-weight:bold } .s3537C2D6 { font-weight:normal } .sC83B07C { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     SECOND SECTION CASE OF ROMEO CASTAÑO v. BELGIUM (Application no. 8351/17)       JUDGMENT   The original French version was rectified on 26 November 2019 under Rule 81 of the Rules of Court.   STRASBOURG 9 July 2019   FINAL   09/10/2019     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Romeo Castaño v. Belgium, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Paul Lemmens,   Julia Laffranque,   Valeriu Griţco,   Stéphanie Mourou-Vikström,   Ivana Jelić,   Darian Pavli, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 11 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 8351/17) against the Kingdom of Belgium lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Spanish nationals (“the applicants”), on 16   January 2017. The applicants’ personal details are set out in the Appendix. 2.     The applicants were represented by Ms M.L. García Blanco, a lawyer practising in Madrid. The Belgian Government (“the Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department. 3.     Relying on the procedural aspect of Article 2 of the Convention, the applicants complained of the Belgian authorities’ refusal to execute the European arrest warrant issued by the Spanish authorities against N.J.E., the person suspected of involvement in the death of their father, in that it prevented a prosecution from being brought against N.J.E. 4.     On 14 March 2017 the Government were given notice of the application. The applicants and the Government each filed written observations on the admissibility and merits of the case (Rule 54 § 2 of the Rules of Court). The Spanish Government exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a)). Third-party comments were also received from N.J.E. and from the association Colectivo de víctimas del terrorismo (COVITE), who had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 (a)). THE FACTS THE CIRCUMSTANCES OF THE CASE The background to the case 5.     The applicants are the children of Lieutenant Colonel Ramón Romeo, who died following an attack carried out on 19 March 1981 in Bilbao (Spain) by a commando unit claiming to belong to the terrorist organisation ETA [1] . An alleged member of the commando unit, N.J.E., a Spanish national of Basque origin, was suspected of shooting the applicants’ father at point ‑ blank range. 6.     One of Ramón Romeo’s children joined proceedings in Spain as a civil party. In May 2007 all the members of the commando unit were convicted by the Spanish courts, with the exception of N.J.E., who had reportedly fled to Mexico following the events of 1981 and later moved to Belgium. Legal challenges First set of surrender proceedings 7.     A Spanish investigating judge of the Audiencia Nacional issued two European arrest warrants in respect of N.J.E. on 9 July 2004 and 1   December 2005 for the purpose of bringing criminal proceedings, respectively, on charges of attempted murder and terrorism committed in Bilbao on 14 June 1981, and participation in a criminal organisation, terrorism, intentional killing, infliction of serious bodily harm, and murder, committed in Bilbao on 19 March 1981. 8.     By an order of the investigating judge of the Ghent Court of First Instance of 9 October 2013, N.J.E. was placed in detention. 9.     In an order of 16 October 2013 the Committals Division ( chambre du conseil ) of the same court declared the European arrest warrants enforceable. 10.     N.J.E. appealed against that order. She argued at the outset that execution of the arrest warrants should be refused, since prosecution of the offences was time-barred under Belgian law and the facts came within the extraterritorial jurisdiction of the Belgian courts (section 4(4) of the European Arrest Warrant Act of 19 December 2003, see paragraph 25 below). She also submitted that there were substantial reasons for believing that execution of the European arrest warrants would infringe her fundamental rights under Article 6 of the Treaty on European Union (section 4(5) of the above-mentioned Act). 11 .     On 31 October 2013, referring to Articles 6 and 7 of the preliminary part of the Code of Criminal Procedure (see paragraph 26 below), the Indictments Division of the Ghent Court of Appeal held that N.J.E. did not come within the jurisdiction of the Belgian criminal courts, taking the view that N.J.E. did not have her main residence in Belgium. The Indictments Division further noted that N.J.E. was not being prosecuted in Belgium for any of the offences provided for in Article 6 of the preliminary part of the Code of Criminal Procedure. Lastly, it observed that there had been no “complaint from the aggrieved foreign national or his or her family”, or any “official notice given to the Belgian authority by the authority of the country in which the offence [had been] committed” within the meaning of Article   7   § 2 of the preliminary part of the Code of Criminal Procedure. 12 .     Nevertheless, the Indictments Division refused execution of the European arrest warrants on the basis of section 4(5) of the European Arrest Warrant Act. It held that the punishable acts needed to be viewed in the broader context of Spain’s contemporary political history and the personal background of N.J.E., who, having been active in the “Basque armed resistance movement” in her twenties, was now a 55-year-old professional woman living a normal life in Ghent. Furthermore, basing its finding in particular on a report by the European Committee for the Prevention of Torture (CPT) concerning the latter’s periodic visit to Spain from 31 May to 13 June 2011, the Indictments Division held that there were substantial reasons for believing that execution of the European arrest warrant would infringe N.J.E.’s fundamental rights under Article 6 of the Treaty on European Union. It found in particular as follows:   “... persons charged with punishable offences with an alleged terrorist motive are held in Spain under a different custodial regime, in degrading conditions possibly accompanied by torture, and with very limited contact with the outside world (family, lawyer and assistance), as borne out by evidence ... The investigating judge and the public prosecutor’s office were wrong to assert that there exists a presumption of observance of fundamental rights in Spain including with regard to former members of the Basque resistance movements, as [N.J.E.] probably was. Firstly, there can never be a presumption of observance of human rights. Secondly, the law itself runs counter to the existence [of such a presumption], given that the person concerned by the [European arrest warrant] has the right to demonstrate and explain convincingly that there are substantial reasons to fear a human rights violation. This additional safeguard is afforded within a strictly European legal context. Reports from international organisations support these genuine fears. Thirdly, the law nowhere requires it to be demonstrated that fundamental rights would be breached as a matter of absolute certainty.” 13.     Lastly, the Indictments Division ordered N.J.E.’s release. 14.     The Belgian Federal Prosecutor’s Office lodged an appeal on points of law against this judgment. It argued that, regard being had to the principle of mutual trust between the member States of the European Union (“the EU”), any decision to refuse extradition on the grounds of a breach of the fundamental rights of the person concerned had to be supported by detailed evidence demonstrating the existence of a clear threat to his or her rights and capable of rebutting the presumption of observance of fundamental rights. The judgment of the Indictments Division had provided no specific evidence of a risk of a breach of N.J.E.’s fundamental rights, and had been drafted in such general terms that the presumption of observance of human rights in favour of the State issuing the European arrest warrant could not be rebutted. 15 .     In a judgment of 19 November 2013 the Court of Cassation dismissed the appeal by the Federal Prosecutor’s Office. With regard to the principles applicable in the case before it, it observed the following:   “Under section 4(5) of the Act of 19 December 2003, execution of a European arrest warrant must be refused if there are substantial reasons for believing that execution would infringe the fundamental rights of the person concerned as enshrined in Article 6 of the Treaty on European Union, namely the rights guaranteed by the [Convention], which stem from the constitutional traditions common to the European Union Member States, as general principles of Community law. Recital 10 of the preamble to Council Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States makes clear that the mechanism of the European arrest warrant is based on a high level of confidence between Member States. This high level of confidence entails a presumption of observance by the issuing State of the fundamental rights referred to in section 4(5) of the European Arrest Warrant Act of 19 December 2003. In view of this principle of mutual trust between the Member States, any refusal to surrender the person concerned must be supported by detailed evidence of a clear threat to his or her fundamental rights capable of rebutting the presumption in favour of the issuing State of observance of those rights. The judge has unfettered discretion to assess whether the detailed evidence relied on, pointing to a clear threat to the fundamental rights of the person concerned, is sufficient to rebut the aforementioned presumption. The Court [of Cassation] merely verifies that the judge has not drawn inferences from his or her findings that are unconnected to the latter or cannot be justified by them.” Turning to the circumstances of the case before it, the Court of Cassation found as follows:   “The judgment finds that there are substantial reasons for believing that the execution of the European arrest warrants would infringe the defendant’s fundamental rights because ‘persons charged with punishable offences with an alleged terrorist motive are held in Spain under a different custodial regime, in degrading conditions possibly accompanied by torture, and with very limited contact with the outside world (family, lawyer and assistance)’. In so finding, it refers to the 2011 reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe. Hence, the judgment provides legal justification for refusing extradition, as there are substantial reasons for believing that execution of the European arrest warrants would infringe the fundamental rights of the person concerned under Article 6 of the Treaty on European Union. This ground of appeal cannot be upheld.” 16 .     In a letter of 27 November 2014 in reply to one of the applicants, concerning the refusal to execute the European arrest warrant in respect of N.J.E., the President of the Court of Cassation specified that the refusal to execute a European arrest warrant did not necessarily mean that the person concerned would escape punishment. He added as follows:   «   [O]ther procedures exist which should be implemented by the competent authority, as appropriate, so that persons suspected of serious crimes who are no longer in the State where the crimes were allegedly committed can be put on trial. You may assess in that regard whether or not to make an application to the Federal Prosecutor’s Office.” Second set of surrender proceedings 17 .     On 8 May 2015 a fresh European arrest warrant was issued against N.J.E. by an investigating judge of the Audiencia Nacional , concerning the acts committed in Bilbao on 19 March 1981 and classified, in particular, as “terrorist murder” in Spanish law. As to the risk of torture in Spain alleged by the Indictments Division, the investigating judge specified that the CPT’s information had been disputed by the Spanish Government in March 2012 and that, during its subsequent periodic visits in 2012 and 2014, the CPT had made no further mention of it. With regard to incommunicado detention, the judge stated that it was tightly regulated. It could be imposed only in exceptional cases concerning the investigation of armed gangs or terrorists; all persons subjected to such detention were guaranteed a forensic medical examination, and the national torture prevention mechanism included the possibility of unannounced visits by the Ombudsman; the person concerned was entitled to the assistance of a lawyer during the police and judicial proceedings; detention was always subject to judicial supervision, and the person concerned had the right to apply for a writ of habeas corpus; the communal areas were monitored by CCTV and interviews could be recorded; and the restrictions on communications with family and friends were limited to five days and had to be reviewed by a judge. Furthermore, the crime of torture under the Spanish Criminal Code encompassed any physical or psychological ill-treatment, and allegations of torture were examined by an independent judge. Lastly, the investigating judge observed that Spain had transposed the European directives strengthening existing safeguards in criminal matters. 18.     Following the issuing of this arrest warrant, N.J.E. was re-arrested by the Belgian authorities on 20 June 2016 but was released on the same day. 19 .     In an order of 29 June 2016 the Committals Division of the Ghent Court of First Instance refused execution of the new arrest warrant. 20 .     On 14 July 2016, following an appeal by the Federal Prosecutor’s Office, the Indictments Division of the Ghent Court of Appeal upheld the order, ruling that the new arrest warrant did not contain any information that would lead to a different conclusion than that reached in its judgment of 31   October 2013. It based its finding on, among other things, the documents submitted by N.J.E. and, in particular, the United Nations Human Rights Committee’s concluding observations on the sixth periodic report of Spain (adopted at its session from 29 June to 24 July 2015), which recommended “once again” that the Spanish authorities put an end to incommunicado detention and guarantee the rights of all suspects to freely choose a lawyer whom they could consult in complete confidentiality and who could be present at interrogations. 21.     On 15 July 2016 the Federal Prosecutor’s Office lodged an appeal on points of law, arguing in particular that there had been a breach of section 4(5) of the European Arrest Warrant Act on the grounds that the reference to the Human Rights Committee’s observations was insufficient to rebut the presumption of observance of human rights. 22 .     In a judgment of 27 July 2016 the Court of Cassation dismissed the appeal, finding that the ground of appeal relied on had been based on an incomplete reading of the impugned judgment. RELEVANT DOMESTIC LAW AND PRACTICE Framework Decision 2002/584/JAI 23 .     For the purposes of the present case the Court refers to its judgment in Pirozzi v. Belgium (no. 21055/11, §§ 24-29, 17 April 2018), which sets out the relevant provisions of Council Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, together with a summary of the case-law of the Court of Justice of the European Union (“the CJEU”) in that regard. 24 .     Mention should also be made of the CJEU judgment in the case of Generalstaatsanwaltschaft (Conditions of detention in Hungary) (Case   C ‑ 220/18 PPU, judgment of 25 July 2018). This judgment expanded on the methodology set out in the judgment in Aranyosi and   Căldăraru (Joined Cases C‑404/15 and C‑659/15, judgment of 5 April 2016) and determined the extent of the assessment which the executing member State had to undertake where it had evidence pointing to systemic or generalised deficiencies with regard to the conditions of detention in prisons in the issuing State. The CJEU held, in substance, firstly, that the executing judicial authorities were required only to assess the actual and precise conditions of detention of the person concerned that were relevant in determining whether he or she was at real risk of being subjected to inhuman or degrading treatment. Secondly, where the issuing authority had given assurances that the person concerned would not be subjected to such treatment, the executing authority, in view of the mutual trust between the judicial authorities of the member States, had to rely on those assurances, in the absence of any specific indications that the conditions of detention were in breach of Article   4 of the Charter of Fundamental Rights of the European Union. The European Arrest Warrant Act of 19 December 2003 25 .     In Belgium, the above-mentioned framework decision was transposed by means of the European Arrest Warrant Act of 19 December 2003, the relevant provisions of which read as follows: Section 2 “1.     The arrest and surrender of persons sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order between Belgium and the other Member States of the European Union shall be governed by this Act. 2.     The arrest and surrender shall be carried out on the basis of a European arrest warrant. 3.     The European arrest warrant is a judicial decision issued by the competent judicial authority of a European Union Member State, referred to as the issuing judicial authority, with a view to the arrest and surrender by the competent judicial authority of another Member State, referred to as the executing authority, of a person sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. ...” Section 3 “A European arrest warrant may be issued for acts punishable under the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.” Section 4 “Execution of the European arrest warrant shall be refused in the following cases: 1.       If the offence on which the arrest warrant is based is covered by amnesty in Belgium, where Belgium had jurisdiction to prosecute the offence under its own law. 2.     If it transpires from the information available to the judge that the requested person has been the subject of a final judgment in Belgium or in another Member State in respect of the same acts, provided that, where sentence has been passed, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State, or where a final judgment has been given in respect of the requested person in Belgium or in another Member State in relation to the same acts, which prevents further proceedings. 3.     If the person who is the subject of the European arrest warrant may not, owing to his or her age, be held criminally responsible for the acts on which the arrest warrant is based under Belgian law. 4.     Where the criminal prosecution or punishment of the requested person is statute-barred according to Belgian law and the acts fall within the jurisdiction of the Belgian courts. 5.     If there are substantial grounds for believing that execution of the European arrest warrant would infringe the fundamental rights of the person concerned under Article 6 of the Treaty on European Union. ...” Section 11 “1.     Within twenty-four hours following the actual deprivation of liberty, the person concerned shall be brought before an investigating judge, who shall inform him or her (1) of the existence and content of the European arrest warrant; (2) of the possibility of consenting to his or her surrender to the issuing judicial authority; and (3) of the right to choose a lawyer and an interpreter. This information shall be mentioned in the record of the hearing. ...” Section 15 “If the investigating judge deems the information provided by the issuing Member State in the European arrest warrant to be insufficient to enable a decision to be taken on the person’s surrender, he or she shall make an urgent request for the additional information required and may stipulate a time-limit for receiving it, taking account of the need to comply with the time-limit laid down in section 16(1). ...” Extraterritorial jurisdiction of the Belgian courts in criminal matters 26 .     Article 4 of the Belgian Criminal Code provides: “Offences committed outside the territory of the Kingdom of Belgium by Belgians or foreign nationals shall be punishable in Belgium only in those cases stipulated by law.” 27.     The relevant provisions concerning the extraterritorial jurisdiction of the Belgian courts in criminal matters are contained in the preliminary part of the Code of Criminal Procedure: Article 6 “Criminal proceedings may be brought in Belgium against any Belgian or any person whose principal residence is in the Kingdom of Belgium who, outside the country’s territory, commits one of the following:   1.     a criminal offence against State security;   1 bis .     a serious violation of international humanitarian law for the purposes of Title I bis of Book II of the Criminal Code;   1 ter .     a terrorist offence under Title I ter of Book II of the Criminal Code.   2.     A criminal offence against public confidence as laid down in Chapters I, II and III of Book II, Title III, of the Criminal Code or an offence under Articles 497 and 497 bis , if the offence in question concerns either the euro or other currencies which are legal tender in Belgium or objects intended for use in their manufacture, forgery, alteration or falsification, or the effects, papers, seals, stamps or marks of the Belgian State or public authorities or institutions.   3.     A criminal offence against public confidence under the same provisions, if the offence in question concerns currencies which are not legal tender in Belgium or objects intended for use in their manufacture, forgery, alteration or falsification, or the effects, papers, seals, stamps or marks of another country. In the latter case prosecution shall be possible only where the Belgian authority receives official notice from the authority of the country concerned.” Article 7 “1. Criminal proceedings may be brought against any Belgian or any person whose principal residence is in the Kingdom of Belgium who, outside the country’s territory, commits an act classified as a criminal offence under Belgian law, if the act in question is punishable by the legislation of the country where it was committed. 2.     If the offence was committed against a foreign national, a prosecution may be brought only on an application by the public prosecutor. It must also be preceded by a complaint from the aggrieved foreign national or his or her family, or by official notice given to the Belgian authority by the authority of the country in which the offence was committed. If the offence was committed in wartime against a national of a country allied with Belgium for the purposes of the second paragraph of Article 117 of the Criminal Code, the official notice may also be given by the authority of the country of which the foreign national is or was a national.”   RELEVANT INTERNATIONAL INSTRUMENT 28 .     In its concluding observations on the sixth periodic report of Spain, adopted at its 3192nd meeting held on 20 July 2015, the United Nations Human Rights Committee addressed the issue of incommunicado detention in the following terms:   “17.     The Committee reiterates its concern at the practice of court-authorized incommunicado detention. The Committee notes the initiative to reform the Code of Criminal Procedure and the information provided by the State party concerning the reduced use of incommunicado detention, but regrets that the reform does not abolish incommunicado detention or guarantee all the rights set out in article 14 of the Covenant, including the right to legal aid (arts. 7, 9, 10 and 14). The Committee reiterates its previous recommendations (CCPR/C/ESP/CO/5, para.   14) and recommends once again that the State party should take the necessary legislative measures to put an end to incommunicado detention and to guarantee the rights of all detainees to medical services and to freely choose a lawyer whom they can consult in complete confidentiality and who can be present at interrogations.” 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. ...” Admissibility 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 dom