CASE OF DEL RÍO PRADA v. SPAIN
Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The applicant was born in 1958. She is serving a prison sentence in the region of Murcia (Spain). 6. In eight sets of criminal proceedings before the Audiencia Nacional, the applicant was sentenced as follows: - In judgment 77/1988 of 18 December 1988: for being a member of a terrorist organisation, to eight years’ imprisonment; for illegal possession of weapons, to seven years’ imprisonment; for possession of explosives, to eight years’ imprisonment; for forgery, to four years’ imprisonment; for using forged identity documents, to six months’ imprisonment. - In judgment 8/1989 of 27 January 1989: for damage to property, in conjunction with six counts of grievous bodily harm, one of causing bodily harm and nine of causing minor injuries, to sixteen years’ imprisonment. - In judgment 43/1989 of 22 April 1989: as a key accomplice in a fatal attack and for murder, to twenty-nine years’ imprisonment. - In judgment 54/1989 of 7 November 1989, as a key accomplice in a fatal attack, to thirty years’ imprisonment; for eleven murders, to twenty-nine years for each murder; for seventy-eight attempted murders, to twenty-four years on each count; for damage to property, to eleven years’ imprisonment. The court ordered that in application of Article 70 § 2 of the Criminal Code of 1973 the maximum duration of the sentence to be served (condena) should be thirty years. - In judgment 58/1989 of 25 November 1989: as a key accomplice in a fatal attack and in two murders, to twenty-nine years’ imprisonment in respect of each charge. In keeping with Article 70 § 2 of the Criminal Code of 1973, the court ordered that the maximum duration of the sentence to be served (condena) should be thirty years. - In judgment 75/1990 of 10 December 1990: for a fatal attack, to thirty years’ imprisonment; for four murders, to thirty years’ imprisonment on each count; for eleven attempted murders, to twenty years’ imprisonment on each count; on the charge of terrorism, to eight years’ imprisonment. The judgment indicated that in respect of the custodial sentences the maximum sentence provided for in Article 70 § 2 of the Criminal Code of 1973 should be taken into account. - In judgment 29/1995 of 18 April 1995: for a fatal attack, to twenty-nine years’ imprisonment; for murder, to twenty-nine years’ imprisonment. The court again referred to the maximum term of imprisonment provided for in Article 70 of the Criminal Code. - In judgment 24/2000 of 8 May 2000: for an attack combined with attempted murder, to thirty years’ imprisonment; for murder, to twenty-nine years’ imprisonment; for seventeen attempted murders, to twenty-four years’ imprisonment on each count; and for damage to property, to eleven years’ imprisonment. The judgment noted that the sentence served should not exceed the maximum term provided for in Article 70 § 2 of the Criminal Code of 1973. In order to determine which criminal law was applicable (the Criminal Code of 1973, which was applicable at the material time, or the later Criminal Code of 1995), the Audiencia Nacional considered that the more lenient law was the 1973 Criminal Code, because of the maximum term of sentence provided for in its Article 70 § 2, in conjunction with its Article 100 (reduction of sentence for work done). 7. In all, the terms of imprisonment to which the applicant was sentenced amounted to over 3,000 years. 8. The applicant was held in preventive detention from 6 July 1987 to 13 February 1989. On 14 February 1989 she began to serve her sentence after conviction. 9. By a decision of 30 November 2000 the Audiencia Nacional notified the applicant that the legal and chronological links between the crimes of which she had been convicted made it possible to group them together as provided for in Article 988 of the Code of Criminal Procedure in conjunction with Article 70 § 2 of the 1973 Criminal Code, which had been in force when the offences were committed. The Audiencia Nacional combined all the applicant’s prison sentences together and fixed the total term of imprisonment to be served at 30 years. 10. By a decision of 15 February 2001, the Audiencia Nacional fixed the date on which the applicant would have fully discharged her sentence (liquidación de condena) at 27 June 2017. 11. On 24 April 2008 the authorities at the prison where the applicant was serving her sentence decided that, taking into account the 3282 days’ remission to which she was entitled for the work she had done since 1987, she should be released on 2 July 2008. 12. On 19 May 2008 the Audiencia Nacional asked the prison authorities to review the date of the applicant’s release in the light of new precedent set by the Supreme Court in its judgment 197/06 of 28 February 2006, of which the Audiencia Nacional cited the relevant parts (see Relevant domestic law and practice, below), which stated, inter alia: “Thus, the execution of the total sentence to be served [condena] shall proceed as follows: it shall begin with the heaviest sentences pronounced. The relevant benefits and remissions shall be applied to each of the sentences being served. When the first sentence has been served, the second sentence shall begin and so on, until the limits provided for in Article 70 § 2 of the Criminal Code of 1973 have been reached. At such time, all of the sentences comprised in the total sentence to be served [condena] shall have been extinguished.” 13. The Audiencia Nacional explained that this new case-law applied only to those people convicted under the Criminal Code of 1973 to whom Article 70 § 2 had been applied. As that was the applicant’s case, the date of her release would be changed accordingly. 14. The applicant lodged an appeal (súplica). She argued, inter alia, that the application of the Supreme Court’s judgment was in breach of the principle of non-retroactivity of criminal law provisions less favourable to the accused. In her case the reduction of sentence for work done would now be calculated for each individual sentence and not for the total sentence to be served – and up to the maximum limit of 30 years. This new method of calculation would in effect increase the term of imprisonment actually served by the applicant by almost nine years. 15. By an order of 23 June 2008 the Audiencia Nacional set the date for the applicant’s release at 27 June 2017. 16. The applicant appealed against that decision. 17. By a decision of 10 July 2008 the Audiencia Nacional rejected the appeal and noted that it was not a matter of limits on prison sentences, but rather of how to apply reductions of sentence in order to determine the date of the prisoner’s release. Such reductions were to be calculated in relation to each sentence individually. Concerning the principle of non-retroactivity, the Audiencia Nacional considered that it had not been breached because the criminal law applied in this case had been in force at the time of its application. 18. Relying on Articles 14 (prohibition of discrimination), 17 (right to liberty), 24 (right to effective legal protection) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had not demonstrated the constitutional relevance of her complaints. 19. The relevant provisions of the Constitution read as follows: “All Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” “1. Every person has the right to liberty and security. No one may be deprived of his or her freedom except in accordance with the provisions of this Article and in the cases and in the manner prescribed by law. ...” “1. All persons have the right to obtain the effective protection of the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent. ...” “1. No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a criminal offence, misdemeanour or administrative offence under the law in force at that time. ...” 20. The relevant provisions of the Criminal Code of 1973, as in force at the material time, read as follows: “When all or some of the sentences imposed ... cannot be served simultaneously by a convict, the following rules shall apply: 1. In imposing the term to be served, the order followed shall be that of the severity of the respective sentences, which the convict shall serve consecutively if possible, going on to the next sentence when the previous one has been served or extinguished by pardon ... 2. Notwithstanding the previous rule, the maximum term to be served (condena) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred, the others being declared extinguished once those already imposed cover that maximum, which may not exceed thirty years. The above limitation shall be applied even where the penalties have been imposed in different proceedings, if the facts, because they are connected, could have been tried as a single case.” “Once his judgment or conviction has become final, any person serving a custodial or prison sentence may be granted a remission of sentence in exchange for work done. In serving the sentence imposed ... the detainee is entitled to one day’s remission for every two days worked, and the time thus deducted is taken into account when granting release on licence. The following persons shall not be entitled to remission for work done: 1. Detainees who escape or attempt to escape, even if they do not succeed. 2. Detainees who repeatedly misbehave while serving their sentence. 21. The relevant provision of the Code of Criminal Procedure in force at the material time reads a follows: “... When a person found guilty of several criminal offences is convicted, in different sets of proceedings, of offences that could have been tried in a single case, in accordance with Article 17 of the Code, the judge or court which pronounced the last judgment of conviction shall, of its own motion or at the request of the public prosecutor or the convicted person, fix the maximum term to be served in respect of the sentences pronounced, in keeping with Article 70 § 2 of the Criminal Code ...” 22. The relevant section of the 1981 Prison Rules (no. 1201/1981) explained as follows how to calculate the term of imprisonment (three quarters of the sentence pronounced) to be served in order for the detainee to be eligible for release on licence: “In calculating three quarters of the sentence, the following rules shall apply: (a) The part of the sentence to be served (condena) which is subject to pardon for the purposes of release on licence shall be deducted from the total penalty pronounced, as if that penalty has been replaced by a lesser one. (b) The same rule shall apply to prison benefits entailing a reduction of the sentence to be served (condena). (c) When a person is sentenced to two or more custodial sentences, the sum of those sentences, for the purposes of release on licence, shall be considered as a single sentence to be served (condena). ...” 23. The new Criminal Code of 1995 did away with the reduction of sentences in consideration of the work done in prison. However, those prisoners whose conviction was pronounced on the basis of the Criminal Code of 1973 – even after the entry into force of the new Code – continued to be eligible for reductions of sentence for work done. As to the maximum length of prison sentences and the application of reductions to the time served, the Criminal Code of 1995 was amended by institutional law 7/2003 on measures for the full and effective execution of sentences. The relevant parts of the Criminal Code thus amended read as follows: “When some or all of the penalties for the different offences cannot be served concurrently, they shall be served consecutively, in descending order of severity, as far as possible.” “1. Notwithstanding what is set forth in the preceding Article, the maximum duration of the sentence to be served (condena) by a convict shall not exceed triple the time imposed for the most serious of the penalties incurred, the others being declared extinguished once those already imposed cover that maximum, which may not exceed twenty years. Exceptionally, the maximum limit shall be: (a) Twenty-five years when an individual has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence of up to twenty years; (b) Thirty years when a convict has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence exceeding twenty years; (c) Forty years when a convict has been found guilty of two or more crimes and at least two of them are punishable by law with a prison sentence exceeding twenty years; (d) Forty years when a convict has been found guilty of two or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding twenty years. 2. The above limitation shall be applied even where the penalties have been imposed in different proceedings, if the facts, because they are connected or because of when they were committed, could have been tried as a single case.” “1. If, as a result of the limitations established in section 1 of Article 76, the sentence to be served is less than half the aggregate of all the sentences imposed, the sentencing judge or court may order that prison benefits, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence be determined with reference to all of the sentences pronounced. 2. Such a decision shall be mandatory in the cases referred to in paragraphs (a), (b), (c) and (d) of section 1 of Article 76 of this Code, provided that the sentence to be served is less than half the aggregate of all the sentences imposed. ...” 24. In an order of 25 May 1990, the Supreme Court considered that the combining of sentences in application of Article 70 § 2 of the Criminal Code of 1973 and Article 988 of the Code of Criminal Procedure concerned not the “execution” but the fixing of the sentence, and that its application was accordingly a matter for the convicting judge, not the judge responsible for the execution of sentences (Juzgados de Vigilancia Penitenciaria). 25. In a judgment of 8 March 1994 (529/1994) the Supreme Court affirmed that the maximum term of imprisonment (thirty years) provided for in Article 70 § 2 of the Criminal Code of 1973 was just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law, such as release on licence and remission of sentence, applied” (point 5 of the reasoning). The Supreme Court referred to Article 59 of the Prison Rules of 1981, according to which the combining of two custodial sentences into one was considered as a new sentence for the purposes of the application of release on licence. 26. That approach continued to be adopted after the entry into force of the Criminal Code of 1995 as regards the legal maximum term to be served under Article 76 thereof (see paragraph 23 above). In its judgment 1003/2005, of 15 September 2005, the Supreme Court affirmed that “this limit is just like a new sentence – resulting from but independent of the others – to which prison benefits provided by law, such as release on licence, day release and pre-release classification apply” (point 6 of the reasoning). A similar approach was followed in the judgment of 14 October 2005 (1223/2005), in which the Supreme Court, in the same terms, reiterated that the maximum term of imprisonment to be served “is just like a new sentence – resulting from but independent of the others – to which prison benefits provided for by law, such as release on licence must be applied, subject to the exceptions provided for in Article 78 of the Criminal Code of 1995” (point 1 of the reasoning). 27. The Supreme Court departed from this case-law, however, in judgment 197/2006, of 28 February 2006, in which it established what is known as the “Parot doctrine”. The Supreme Court held that reductions of prisoners’ sentences should be applied to each sentence individually, not to the maximum sentence of thirty years’ imprisonment provided for in Article 70 § 2 of the Criminal Code of 1973. The relevant parts of the Supreme Court’s reasoning read as follows: “... a joint interpretation of rules one and two of Article 70 of the Criminal Code of 1973 leads us to consider that the thirty-year maximum term does not become a new sentence, distinct from those successively imposed on the convict, or another sentence resulting from all the previous ones, but is the maximum term of imprisonment a prisoner should serve. The reasons that lead us to this interpretation are: (a) first, from a purely literal point of view, the Criminal Code by no means considers the maximum term of thirty years as a new sentence to which any reductions to which the prisoner is entitled should apply, quite simply because it says no such thing; (b) on the contrary, the penalty (pena) and the resulting term of imprisonment to be served (condena) are two different things; the wording used in the Criminal Code refers to the resulting limit as the “maximum term to be served” (condena), establishing the different lengths of that “maximum term to be served” (condena) in relation to each of the respective “sentences” imposed, and calculated in two different ways, by taking the different sentences in order of gravity, in accordance with the first rule, until one of the two maximum limits provided for is attained (three times the length of the heaviest sentence pronounced or, in any event, no more than thirty years); (c) this interpretation is also suggested by the wording of the Code, since after completing the successive sentences as mentioned, the prisoner will stop ‘discharging [that is, serving] the remaining ones [in the prescribed order] as soon as the sentences already served reach the requisite maximum length, which may on no account exceed thirty years’ ... (e) and from a teleological point of view, it would not be logical, simply because of the aggregation of sentences, for a copious criminal record to be reduced to a single new sentence of thirty years, with the effect that an individual who has committed a single offence is treated, without justification, in the same way as someone convicted of multiple offences, as is the case here. Indeed, there is no logic in applying this rule in such a way that committing one murder is punished in the same way as committing two hundred murders; (f) were application for a pardon to be made, it could not apply to the resulting total term to be served (condena), but rather to one, several or all of the different sentences imposed; in such a case it is for the court that pronounced the sentence to decide, and not the judicial body responsible for applying the limit (the last one), which shows that the sentences are different; and in any event, the first rule of Article 70 of the Criminal Code of 1973 states how, in such a case, to verify the successive completion of the sentences “when the previous ones have been extinguished by pardon”; (g) and to conclude this reasoning, from a procedural point of view Article 988 of the Code of Criminal Procedure clearly states that it is a matter of fixing the maximum limit of the sentences pronounced (in the plural, in keeping with the wording of the law), “in order to determine the maximum length of these sentences” (the wording is very clear). Which is why the term “aggregate of the sentences to be served [condenas]” is very misleading and inappropriate. The sentences are not merged into one, but the serving of multiple sentences is limited by law to a certain maximum term. Consequently, the prisoner serves the different sentences, with their respective specificities and with all the benefits to which he is entitled. That being so, for the extinction of the sentences successively served, the reduction of sentences for work done may be applied in conformity with Article 100 of the Criminal Code of 1973. Thus, the method for the discharge of the total term to be served [condena] is as follows: it begins with the heaviest sentences imposed. The relevant benefits and remissions are applied to each of the sentences the prisoner is serving. When the first [sentence] has been served, the prisoner begins to serve the next one and so on, until the limits provided for in Article 70 § 2 of the Criminal Code of 1973 have been reached. At this stage, all of the sentences comprised in the total term to be served [condena] will have been extinguished. For example, in the case of an individual given three prison sentences, 30 years, 15 years and 10 years. The second rule of Article 70 of the Criminal Code of 1973 ... limits the actual term to be served to three times the most serious sentence or a maximum of 30 years’ imprisonment. In this case, it would be the maximum term of thirty years. The successive serving of the sentences (the total term to be served) begins with the first sentence, which is the longest one (30 years in this case). If [the prisoner] were granted a ten-year remission for whatever reason, he would have served that sentence after 20 years’ imprisonment, and the sentence would be extinguished; next, [the prisoner] would start to serve the next longest sentence (15 years), and with a remission of 5 years that sentence will have been served after 10 years. 20 + 10 = 30. [The prisoner] would not have to serve any other sentence, any remaining sentences being extinguished, as provided for in the applicable Criminal Code, once those already imposed cover that maximum, which may not exceed thirty years.” 28. In that judgment the Supreme Court considered that there was no well-established case-law on the specific question of the interpretation of Article 100 of the Criminal Code of 1973 in relation to Article 70 § 2. It referred to a single precedent, its judgment of 8 March 1994 in which it considered that the maximum duration provided for in Article 70 § 2 of the Criminal Code of 1973 was “just like a new, independent sentence” (see paragraph 25 above). However, the Supreme Court departed from that interpretation, pointing out that that decision, which it considered an isolated one, could not be relied on as a precedent in so far as it had never been applied in a constant manner as required under Article 1 § 6 of the Civil Code. Even assuming that that decision could have been considered as a precedent, the court reiterated that the principle of equality before the law (Article 14 of the Constitution) did not preclude departures from the case-law, provided that sufficient reasons were given. Furthermore, the principle that the law should not be applied retroactively (Article 25 § 1 of the Constitution) was not meant to apply to case-law. 29. A dissenting opinion was appended to judgment 197/2006 by three judges. They considered that the sentences imposed successively were transformed or combined into another sentence of the same kind, but different in so far as it combined the various sentences into one. They called it “the sentence to be served”, that is to say the one resulting from the application of the limit fixed in Article 70 § 2 of the Criminal Code of 1973, which effectively extinguished the sentences that went beyond that limit. This new “unit of punishment” was the term the prisoner had to serve, to which remission for work done should be applied. Remissions should therefore be applied to the sentences imposed, but only once they had been processed in conformity with the rules on the consecutive serving of sentences. The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of the Criminal Code of 1995, all Spanish courts, including the Supreme Court (agreements adopted at the Plenary sessions on 18 July 1996 and 12 February 1999), had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of Article 70 § 2 of the Criminal Code of 1973 (the thirty-year limit). In application of that criterion no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done although they had each been given prison sentences of over a hundred years. 30. The dissenting judges considered that the method applied by the majority was not provided for in the Criminal Code of 1973 and therefore amounted to retroactive implicit application of the new Article 78 of the Criminal Code of 1995, as modified by institutional law 7/2003 on measures for the full and effective execution of sentences (see paragraph 23 above). This new interpretation was also contra reo, constituted a policy of full execution of sentences alien to the Criminal Code of 1973, could be a source of inequalities and was contrary to the case-law of the Supreme Court (judgments of 8 March 1994, 15 September 2005 and 14 October 2005, see paragraphs 25-26 above). Lastly, the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality, even in the case of an unrepentant terrorist murderer. 31. In a series of judgments of 29 March 2012 the Constitutional Court ruled on several amparo appeals lodged by convicts to whom the “Parot doctrine” had been applied. In two cases (4893-2006, 4793-2009) it allowed the appeals for violation of the right to effective judicial protection (Article 24 § 1 of the Constitution) and the right to liberty (Article 17 § 1 of the Constitution). The Constitutional Court considered that the new method of calculating remission following the Supreme Court’s departure in 2006 from its earlier case-law was in contradiction with the earlier final judicial decisions in the appellants’ cases. In those earlier firm and final decisions, in order to determine which was the most lenient criminal law applicable (the Criminal Code of 1973 or that of 1995), the courts had based themselves on the principle that the reductions of sentence for work done provided for in the Criminal Code of 1973 should be applied to the thirty-year maximum sentence, not to each sentence individually. In so doing they had reached the conclusion that the regime of the Criminal Code of 1973, with its reductions of sentence for work done, was more favourable to the appellants than the new Criminal Code of 1995. In a third case (appeal no. 10651-2009), the Constitutional Court found in the appellant’s favour for violation of the right to effective judicial protection (Article 24 of the Constitution), considering that the Audiencia Nacional had changed the date of the prisoner’s final release, thereby disregarding its own firm and final judicial decision given a few days earlier. In these three cases the Constitutional Court pointed out that the right to effective judicial protection included the right not to have final judicial decisions overruled (the “intangibility” of final judicial decisions). 32. In twenty-five other cases the Constitutional Court dismissed the amparo appeals on the merits, finding that the decisions by which the ordinary courts had set the appellants’ final dates of release in application of the departure from precedent in 2006 had not contravened any final judicial decision concerning them. 33. Both in the judgments in the appellants’ favour (paragraph 31) and in those against them (paragraph 32) the Constitutional Court dismissed the complaints under Article 25 of the Constitution (principle of legality), considering that the question of the calculation of remission for work done concerned the execution of the sentence and on no account the application of a harsher sentence than that provided for in the applicable criminal law, or a sentence exceeding the limit allowed by law. It cited the case-law of the European Court of Human Rights according to which a distinction was to be made, for the purposes of Article 7 of the Convention, between measures constituting a “penalty” and measures relating to the “execution” of a penalty (Grava v. Italy, no. 43522/98, § 51, 10 July 2003, and Gurguchiani v. Spain, no. 16012/06, § 31, 15 December 2009). 34. Several judges appended separate concurring or dissenting opinions to the judgments of the Constitutional Court.