Judgment (Merits and Just Satisfaction) of Court (Grand Chamber), October 21, 2013 (case CASE OF DEL RIO PRADA v. SPAIN)

Resolution DateOctober 21, 2013
Issuing OrganizationCourt (Grand Chamber)



(Application no. 42750/09)



21 October 2013

This judgment is final but it may be subject to editorial revision.

In the case of Del Río Prada v. Spain,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Dean Spielmann, President,

Guido Raimondi,

Ineta Ziemele,

Mark Villiger,

Isabelle Berro-Lefèvre,

Elisabeth Steiner,

George Nicolaou,

Luis López Guerra,

Ledi Bianku,

Ann Power-Forde,

Işıl Karakaş,

Paul Lemmens,

Paul Mahoney,

Aleš Pejchal,

Johannes Silvis,

Valeriu Griţco,

Faris Vehabović, judges,

and Michael O’Boyle, Deputy Registrar,

Having deliberated in private on 20 March 2013 and 12 September 2013,

Delivers the following judgment, which was adopted on the last‑mentioned date:


  1. The case originated in an application (no. 42750/09) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Ms Inés del Río Prada (“the applicant”), on 3 August 2009.

  2. The applicant was represented by Mr S. Swaroop, Mr M. Muller and Mr M. Ivers, lawyers practising in London, Mr D. Rouget, a lawyer practising in Bayonne, Ms A. Izko Aramendia, a lawyer practising in Pamplona and Mr U. Aiartza Azurtza, a lawyer practising in San Sebastian. The Spanish Government (“the Government”) were represented by their Agent, Mr F. Sanz Gandásegui, and their co-Agent, Mr I. Salama Salama, State Counsel.

  3. The applicant alleged in particular that since 3 July 2008 her continued detention had been neither “lawful” nor “in accordance with a procedure prescribed by law” as required by Article 5 § 1 of the Convention. Relying on Article 7, she also complained that what she considered to be the retroactive application of a new approach adopted by the Supreme Court after her conviction had increased the length of her imprisonment by almost nine years.

  4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 19 November 2009 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). On 10 July 2012 a Chamber of that Section, composed of Josep Casadevall, President, Corneliu Bîrsan, Alvina Gyulumyan, Egbert Myjer, Ján Šikuta, Luis López Guerra and Nona Tsotsoria, judges, and Santiago Quesada, Section Registrar, gave judgment. They unanimously declared the complaints under Article 7 and Article 5 § 1 of the Convention admissible and the remainder of the application inadmissible, then proceeded to find a violation of those provisions.

  5. On 4 October 2012 the Court received a request from the Government for the case to be referred to the Grand Chamber. On 22 October 2012 a panel of the Grand Chamber decided to refer the case to the Grand Chamber (Article 43 of the Convention).

  6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.

  7. The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits.

  8. In addition, third-party comments were received from Ms Róisín Pillay on behalf of the International Commission of Jurists (ICJ), who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).

  9. A hearing took place in public in the Human Rights Building, Strasbourg, on 20 March 2013 (Rule 59 § 3).

    There appeared before the Court:

    (a) for the Government

    Mr I. Salama Salama, Co-Agent,

    Mr F. Sanz Gandásegui, Agent,

    Mr J. Requena Juliani,

    Mr J. Nistal Buron, Advisers;

    (b) for the applicant

    Mr M. Muller,

    Mr S. Swaroop,

    Mr M. Ivers, Counsel,

    Mr D. Rouget,

    Ms A. Izko Aramendia,

    Mr U. Aiartza Azurtza, Advisers.

    The Court heard addresses by Mr Muller, Mr Swaroop, Mr Ivers and Mr Salama Salama, as well as replies from Mr Muller, Mr Swaroop, Mr Ivers and Mr Sanz Gandásegui to its questions.



  10. The applicant was born in 1958. She is serving a prison sentence in the region of Galicia.

  11. In eight separate sets of criminal proceedings before the Audiencia Nacional[1], the applicant was sentenced as follows:

    - in judgment no. 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; and for using forged identity documents, to six months’ imprisonment;

    - in judgment no. 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 no. 43/1989 of 22 April 1989: for a fatal attack and for murder, to twenty-nine years’ imprisonment on each count;

    - in judgment no. 54/1989 of 7 November 1989, for 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; and for damage to property, to eleven years’ imprisonment. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973 the maximum term to be served (condena) should be thirty years;

    - in judgment no. 58/1989 of 25 November 1989: for a fatal attack and two murders, to twenty-nine years’ imprisonment in respect of each charge. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973 the maximum term to be served (condena) should be thirty years;

    - in judgment no. 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; and on the charge of terrorism, to eight years’ imprisonment. The judgment indicated that for the purposes 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 no. 29/1995 of 18 April 1995: for a fatal attack, to twenty-eight years’ imprisonment, and for attempted murder, to twenty years and one day. The court again referred to the limits provided for in Article 70 of the Criminal Code;

    - in judgment no. 24/2000 of 8 May 2000: for an attack with intent to 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 stated that the sentence to be served should not exceed the limit provided for in Article 70.2 of the Criminal Code of 1973. In determining 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 to be served as provided for in Article 70.2 of that Code, combined with the remissions of sentence for work done in detention as provided for in Article 100.

  12. In all, the terms of imprisonment to which the applicant was sentenced for these offences, committed between 1982 and 1987, amounted to over 3,000 years.

  13. The applicant was held in pre-trial detention from 6 July 1987 to 13 February 1989 and began to serve her first sentence after conviction on 14 February 1989.

  14. By a decision of 30 November 2000 the Audiencia Nacional notified the applicant that the legal and chronological links between the offences of which she had been convicted made it possible to group them together (acumulación de penas) as provided for in section 988 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal) in conjunction with Article 70.2 of the 1973 Criminal Code, in force when the offences were committed. The Audiencia Nacional fixed the maximum term to be served by the applicant in respect of all her prison sentences combined at thirty years.

  15. By a decision of 15 February 2001 the Audiencia Nacional set the date on which the applicant would have fully discharged her sentence (liquidación de condena) at 27 June 2017.

  16. On 24 April 2008, taking into account the 3,282 days’ remission to which she was entitled for the work she had done since 1987, the authorities at Murcia Prison, where the applicant was serving her sentence, proposed to the Audiencia Nacional that she be released on 2 July 2008. Documents submitted to the Court by the Government show that the applicant was granted ordinary and extraordinary remissions of sentence by virtue of decisions of the judges responsible for the execution of sentences (Jueces de Vigilancia Penitenciaria at first instance and Audiencias Provinciales on appeal) in 1993, 1994, 1997, 2002, 2003 and 2004, for cleaning the prison, her cell and the communal areas and undertaking university studies.

  17. However, on 19 May 2008 the Audiencia Nacional rejected that proposal and asked the prison authorities to submit a new date for the applicant’s release, based on a new precedent (known as the “Parot doctrine”) set by the Supreme Court in its judgment no. 197/2006 of 28 February 2006. According to this new approach, sentence adjustments (beneficios) and remissions were no longer to be applied to the maximum term of imprisonment of thirty years, but successively to each of the sentences imposed (see “Relevant domestic law and practice”, paragraphs 39-42 below).

  18. The Audiencia Nacional explained that this new approach applied only to people convicted under the Criminal Code of 1973 to whom Article 70.2 thereof...

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