CASE OF DACOSTA SILVA v. SPAIN
Violation of Art. 5-1-a;Not necessary to examine Art. 6-1 and 6-3
Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
8. The applicant, a member of the Civil Guard (Guardia Civil), was born in 1969 and lives in Valencia. At the material time he was stationed at the Gijón headquarters and had been on sick leave since 5 January 1998. 9. On 16 February 1998 he was informed that one of his close relatives had been taken seriously ill. After notifying the duty officers, he set out the same morning for his parents’ home in Tuy (Pontevedra), where he stayed until 24 February 1998. 10. On 18 February 1998 members of the Tuy Civil Guard called at his parents’ home to check that he was there. On the same day a sergeant from the same garrison rang the family home in a further check. On 24 February the applicant rejoined his unit in Gijón. 11. On 28 February 1998 the applicant was informed by a lieutenant-colonel in the Civil Guard that disciplinary proceedings had been brought against him for a minor breach of regulations, namely absence from his unit without prior leave. 12. On 20 March 1998 the applicant’s superior imposed a disciplinary penalty on him consisting of six days’ house arrest pursuant to sections 7(27) and 10 of Law no. 11/1991 of 17 June 1991. 13. Later that day the applicant applied for a writ of habeas corpus. His application was dismissed by León military judge no. 43 on 23 March 1998. However, the judge stated in his decision that, since the applicant was on sick leave, the restrictions should be relaxed to allow him to leave the house for medical reasons, to purchase necessities and to attend religious services should he wish to do so. 14. The applicant lodged two internal appeals with Gijón headquarters against the decision of 20 March 1998. These were dismissed in two decisions of 11 May and 15 June 1998. 15. Subsequently, on 1 July 1998, the applicant lodged an appeal with the Corunna Territorial Military Court in which he alleged that he had been wrongly deprived of his liberty and relied, inter alia, on Articles 17 (right to liberty) and 24 (right to a fair trial) of the Constitution. He argued that the decision to place him under house arrest had infringed his right to liberty (Article 17 § 1 of the Constitution) as in practice it entailed an actual deprivation of liberty. He also complained that the decision to deprive him of his liberty had failed to take into account the rule that penalties should not affect service and gave no indication as to how the sentence was to be served, adding that, as he was on sick leave, he had been forced to stay at home for the duration of the sentence. 16. In his observations, State Counsel asked for the appeal to be dismissed. 17. The prosecutor submitted in his observations that there had been a violation of the right to liberty (Article 17 § 1 of the Constitution) on account of the failure to determine the conditions of the applicant’s arrest. In particular, there had been no decision on how the sentence was to be served, how its execution was to be supervised or whether it was reasonable. He asked the Military Court to find in favour of the applicant. 18. In a judgment of 27 July 1999, the Corunna Territorial Military Court dismissed the appeal and upheld the decision of 20 March 1998 and those of 11 May and 15 June 1998. It ruled that it was unnecessary to include the words “without affecting service” in the administrative order depriving the applicant of his liberty as this was inherent in the nature of the penalty for what was only a minor breach of the regulations. 19. Pointing out that, in the light of the Constitutional Court’s case-law, house arrest constituted not merely a restriction but an actual deprivation of liberty, the Military Court noted that by virtue of Article 17 § 1 of the Constitution there could be no deprivation of liberty other than in the circumstances and manner prescribed by law and that the disciplinary regime applied in the applicant’s case was founded on a basic law (Law no. 11/1991 of 17 June 1991) which permitted custodial sentences and designated the authorities empowered to impose such sentences and the procedure to be followed. As the military judge had stated when dismissing the application for a writ of habeas corpus, the applicant had been sentenced by the competent authority within the bounds fixed by law to a penalty prescribed by law in accordance with the established procedure. As to the complaint under Article 24 of the Constitution, the applicant had received a fair trial attended by all the necessary safeguards. 20. The applicant appealed on points of law to the Military Division of the Supreme Court, which dismissed his appeal in a judgment of 30 May 2000. It accepted the applicant’s submission that the words “without affecting service” were required in all orders for house arrest for minor breaches of the regulations so as to avoid restrictions of liberty becoming deprivations of liberty. However, it considered that the additional words had not been necessary in the applicant’s case as he was on sick leave. The Supreme Court noted that the Constitutional Court had already considered the question of “house arrest” and ruled that it constituted an actual deprivation, not merely a restriction, of liberty, although that legal distinction had no bearing on the legitimacy of house arrest because, by virtue of Article 25 § 3 of the Constitution, military authorities, unlike their civilian counterparts, were empowered to impose penalties entailing deprivation of liberty. The Supreme Court consequently concluded that there had been no violation of Article 17 § 1 of the Constitution. With regard to the applicant’s complaint under Article 24 of the Constitution of a serious procedural defect due to a failure to give reasons for the decisions, the Supreme Court found that the impugned judicial decision contained sufficient reasons and was not arbitrary. 21. The applicant then lodged an amparo appeal with the Constitutional Court on the basis of Article 17 § 1 of the Constitution (right to liberty) and Article 5 § 1 of the Convention. In a decision of 30 October 2000, which was served on 16 November 2000, the Constitutional Court dismissed the appeal for want of a constitutional basis, finding that the impugned decisions contained sufficient reasons and were not arbitrary. It stated: “The appellant’s amparo complaints – that house arrest violated his right to liberty (Article 17 § 1 of the Constitution) as it is not a prescribed penalty for members of the Civil Guard such as the appellant who are members of the security, not the armed, forces and that the procedure for imposing such a deprivation of liberty was not complied with – are manifestly ill-founded. The penalty for minor breaches of the regulations is laid down in Basic Law no. 11/1991 and was imposed in accordance with the statutory procedure, which is different from the procedure applicable to confinement in a disciplinary institution. Accordingly, neither the decisions imposing the penalty nor the military courts, which found that the penalty was in accordance with the law, have been guilty of any constitutional violation of the ordinary law. The same applies to the allegations by the applicant of a violation of Article 5 § 1 of the Convention. He maintained that the Spanish State’s reservation in respect of that provision cannot be applied to him as a member of the security forces because Basic Law no. 11/1991 defines the disciplinary regime applicable to the Civil Guard as being that of an armed military establishment (section 1).” “Everyone shall have the right to liberty and security. No one may be deprived of his or her liberty other than in accordance with the provisions of this Article and in the circumstances and manner provided by law.” 22. By an instrument dated 26 September 1979, Spain ratified the Convention subject to a reservation under former Article 64 of the Convention with respect to Articles 5 § 1 and 6 § 1 to the extent to which they might be incompatible with the provisions concerning the disciplinary regime of the armed forces set out in Chapter XV of Part II and Chapter XXIV of Part III of the Code of Military Justice. 23. The Code of Military Justice was repealed and replaced by Basic Law no. 12/1985 of 27 November 1985 on the disciplinary regime of the armed forces, which came into force on 1 June 1986 and applies to both the Civil Guard and the armed forces. 24. When that change was made, the Permanent Representative of Spain at the Council of Europe declared on 28 May 1986: “At the time of deposit of the instrument of ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms, on 29 September 1979, Spain formulated a reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of the Code of Military Justice – Chapter XV of Part II and Chapter XXIV of Part III – concerning the disciplinary regime of the armed forces. I have the honour to inform you, for communication to the Parties to the Convention, that these provisions have been replaced by Basic Law no. 12/1985 of 27 November – Chapter II of Part III and Chapters II, III and IV of Part IV – on the disciplinary regime of the armed forces, which will come into force on 1 June 1986. The new legislation amends the former provisions by reducing the duration of the sanctions imposing deprivation of liberty which can be applied without judicial intervention by increasing the guarantees of persons during the preliminary investigation. Spain confirms nevertheless its reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of Basic Law no. 12/1985 of 27 November – Chapter II of Part III and Chapters II, III and IV of Part IV – on the disciplinary regime of the armed forces, which will come into force on 1 June 1986.” “Under the supreme command of the King, the armed forces, composed of the army, the navy and the air force ...” 25. Basic Law no. 12/1985, whose entry into force was notified to the Council of Europe (see Part B above), was expressly repealed by Basic Law no. 8/1998 of 2 December 1998 on the disciplinary regime of the armed forces. “The State security forces ... are composed of: (a) the police force, which is an armed civil institution ... (b) the Civil Guard, which is an armed military institution ...” “(1) By reason of its status as an armed military institution, the Civil Guard shall be subject to specific rules in disciplinary matters ...” “... the disciplinary rules currently [in 1989] applied to the Civil Guard are those applicable to the armed forces. However, this arrangement is only operative ‘until specific rules are issued’ and the legislation contemplated in section 15(1) of Basic Law no. 2/1986 and prior to that in section 38(2) of Basic Law no. 6/1983 cannot be left in abeyance indefinitely by allowing the transitional application of the military disciplinary regime to continue for an indefinite period ...” 26. Further to the Constitutional Court’s judgment no. 194/1989 of 16 November 1989 (see section D.2 above), Basic Law no. 11/1991 of 17 June 1991 on the disciplinary regime of the Civil Guard was passed “to fulfil the legislative commitments and constitutional requirements adequately and without delay in order to ensure the proper functioning of the Civil Guard in the service of society” (explanatory note). The explanatory note to Law no. 11/1991 also states: “... owing to the nature of the Civil Guard, an armed military institution, and therefore to the need for it to have its own disciplinary regime distinct from that of other State security forces, the application of the armed forces’ regime to the Civil Guard must, as the Constitutional Court indicated in its judgment of 16 November 1989, be regarded as a purely temporary arrangement. The Constitutional Court stated that this situation, which is permissible for a transitional period, cannot continue permanently with the Civil Guard being bound by the rules applicable to the armed forces until specific rules or arrangements are put in place. In the same judgment, the Constitutional Court indicated that the establishment of disciplinary rules specific to the Civil Guard must be a priority objective that cannot remain in abeyance indefinitely and that it is for the legislature ... to clarify the imprecision in the legislation concerning the disciplinary regime of the Civil Guard ...” The relevant provisions of Law no. 11/1991 read as follows: “Minor breaches of the regulations are: (27) All breaches not mentioned in previous legislation that constitute a minor breach of the duties imposed by the provisions governing the activities of the Civil Guard.” “The penalties which may be imposed for minor breaches are: – an administrative reprimand (administrative admonishment), – loss of between one and four days’ leave, – house arrest of between one and thirty days.” “House arrest of between one and thirty days consists of a restriction of liberty requiring the offender to live at home throughout the stipulated period. He or she may take part in the activities of his or her unit and shall remain at home for the rest of the time.” “Disciplinary penalties shall be enforceable immediately and the lodging of an internal or judicial appeal shall have no suspensive effect.” “... the Constitutional Court must point out that house arrest constitutes a genuine deprivation, not simply a restriction, of liberty, so that one day’s house arrest would constitute a violation of personal liberty contrary to Article 17 § 1 of the Constitution, which authorises deprivation of liberty only where prescribed by law.” “... In conclusion, the Assembly considers it advisable and even necessary that the number of reservations made in respect of Council of Europe conventions be considerably reduced. It accordingly recommends that the Committee of Ministers, A. with regard to Council of Europe conventions which have already been concluded: i. invite member States to make a careful review of their reservations, withdraw them as far as possible and make a reasoned report to the Secretary General if certain reservations are maintained; ...”