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THE FACTS
The applicant is a Madrid association that was formed in 1980 to protect the interests of victims and relatives of victims of acts of terrorism. It was represented before the Court by Mr Trias Sagnier and Mr Murcia Quintan, lawyers practising in Madrid.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and reflected in the Supreme Court’s judgment of 29 November 1997 to which reference is made below, may be summarised as follows.
On 26 April 1995 the terrorist organisation ETA released a communiqué entitled “Democratic alternative” (Alternativa Democrática) through a newspaper, Egin.
A decision was taken by the Mesa Nacional de Herri Batasuna (MNHB), the executive body of the political movement, Herri Batasuna, to take active steps to disseminate the communiqué from May 1995 onwards. The decision was taken by a differently composed MNHB from that which was subsequently prosecuted.
In December 1995 the newly composed MNHB drafted a document entitled “Presentation of the democratic alternative to the people” (Presentación Popular de la Alternativa Democrática), in which it set out a strategy for disseminating pro-ETA propaganda through advertisements placed in the press, in particular with the Egin newspaper, and through other channels of communication with the general public in the Basque Country.
At the end of January 1996, shortly before the general election on 3 March 1996, unidentified members of ETA[1] sent the MNHB two videocassettes on “Alternativa Democrática”. During a meeting on 5 February 1996 and in accordance with Articles 3, 14 and 15 of its articles of association which defined it as the executive body of the Herri Batasuna party with responsibility for representing the political movement, the MNHB agreed to adopt the content of the cassettes and to arrange for their dissemination, and also to allow ETA to use advertising slots that, as a legally recognised political party, had been reserved to Herri Batasuna free of charge for its party political broadcasts. The cassettes presented ETA’s “Alternativa Democrática” programme, with its logo, symbols and weapons, and called, inter alia, for the independence and self-determination of the Basque people, an unconditional general amnesty and the withdrawal of the Spanish Armed Forces from the territory claimed.
On 15 February 1996 the public prosecutor lodged a complaint with central investigating judge no. 5, who started an investigation (diligencias previas).
On 16 February the central investigating judge issued an injunction prohibiting the dissemination of the material in slots reserved for free party political broadcasts and of radio announcements intended for that purpose.
By a decision of 8 March 1996, the central investigating judge agreed to permit the applicant to join the proceedings against the twenty-five members of the MNHB concerned as a third-party prosecutor.
On 13 June 1996 the Supreme Court held that it had jurisdiction to hear the case, which had been assigned to it as some of those allegedly involved in the matters complained of were members of the parliaments of the autonomous communities of the Basque Country and Navarre.
On 3 April 1997 the public prosecutor lodged his submissions. The applicant did likewise on 9 May 1997. It argued that the defendants’ acts should be classified as the offence of membership of an armed and the continuing offence of aiding and abetting an armed organisation or, in the alternative, of aiding and abetting an armed organisation and the continuing offence of vindication of offences under Articles 174 bis (b) and 216 bis (a) § 2 of the Criminal Code, or the continuing offence of vindication of terrorism, contrary to Article 216 bis (c) of the Criminal Code. The MNHB lodged its defence submissions on 24 June 1997.
By a judgment of the Supreme Court on 29 November 1997, the members of the MNHB were acquitted of the offences of being members of an armed organisation and of vindicating acts of terrorism, but convicted under Article 174 bis (a) of the Criminal Code of aiding and abetting an armed organisation. They were sentenced to seven-years’ imprisonment.
The MNHB lodged an amparo appeal with the Constitutional Court based on their rights to a fair trial and to have their case heard by an independent and impartial court established by law, their right not to incriminate themselves, their rights to respect for freedom of expression and information, to respect for freedom of thought and to take part in politics, and lastly the presumption of innocence and the principle of equality.
On 22 April 1998 the public prosecutor lodged his pleading setting out his reasons for contesting the grounds relied on by those seeking amparo relief. The applicant followed suit on 25 April.
By a judgment of 20 July 1999, which was served on the applicant on 26 July 1999, the Constitutional Court, sitting as a full court composed of twelve judges, granted the MNHB amparo relief and quashed the judgment appealed against. It held that the MNHB’s right protected by the rule requiring that offences and punishments shall be strictly defined by law had been infringed by the application of Article 174 bis (a) 1° and 2° of the Criminal Code, in that the penalty imposed was disproportionate on the facts of the case. Three dissenting opinions and four concurring opinions were annexed to the judgment.
B. Relevant domestic law
Basic law on the Constitutional Court
Article 84
“The Constitutional Court may at any time before adopting its decision inform the parties that other grounds exist, apart from those that have been relied on, that are of relevance to admissibility and, if applicable, to the merits. In such cases a single hearing shall be held for the parties within no more than ten days and the period for delivery of the decision shall be extended accordingly.”
Third-party prosecution
In Spanish law the right to bring a criminal prosecution is public. In addition to the public prosecutor, private citizens are entitled to institute criminal proceedings. Citizens may bring a private prosecution (for offences that may be prosecuted by the injured party); these take the form of a special prosecution or a third-party prosecution, the latter being for offences for which a prosecution lies ex officio (Article 125 of the Constitution, section 19 of the Institutional Law on the Powers of the Judiciary and Article 101 of the Code of Criminal Procedure). By Articles 270 and 783 of the Code of Criminal Procedure, third-party prosecutions, unlike special prosecutions, are commenced by a criminal complaint (querella) lodged by someone other than the victim of the crime.
COMPLAINTS
The applicant complained under Article 6 § 1 and Article 14 of the Convention that, in breach of section 84 of the Institutional Law on the Constitutional Court and the principle of equality of arms, the Constitutional Court had granted the MNHB amparo relief on the basis of a ground of appeal that had not been relied on by the MNHB and on which the applicant had been unable to submit observations. It contended that the Constitutional Court had considered that an offence had been committed which, as the Supreme Court had observed, had to be punished in accordance with the law, but had decided to grant amparo relief and, consequently, to quash the sentences that had been imposed on the MNHB by the Supreme Court on the ground that, although they were in accordance with the statutory provisions, they were disproportionate in the instant case. However, the Constitutional Court had not remitted the case to the court below for resentencing and the result had been that the offence had gone unpunished.
The applicant surmised that the Constitutional Court’s decision that had led to the members of the MNHB being released may – naively – have been influenced by the “ceasefire” which ETA was respecting at the time. In the applicant’s submission, the Constitutional Court’s decision had deprived the victims of their right to have the accused’s acts punished and of such rights as the rights to life, liberty and good reputation, all allegedly in the name of respect for freedom of thought and the right to impart or receive information.
THE LAW
The applicant complained of a breach of the principle of equality of arms in that the Constitutional Court had granted the MNHB amparo relief on the basis of a ground of appeal that had not been raised by the MNHB and on which the applicant had been unable to submit observations. As a result, while recognising that an offence necessitating punishment in accordance with the law had been committed, the Constitutional Court had quashed the sentences imposed on the ground that they were disproportionate, with the result that the offence had gone unpunished. The applicant relied on Article 6 § 1 and Article 14 of the Convention, the relevant parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court noted that the applicant had been granted standing as a third-party prosecutor and, as a result, had taken part in the criminal proceedings in issue in the same capacity as the public prosecutor. The applicant had lodged submissions in support of the prosecution with the Supreme Court and arguments opposing a grant of amparo relief in the Constitutional Court. The applicant was an interested party as the Constitutional Court’s decision had been adverse to the interests it had sought to defend.
However, the Court notes that the applicant is not charged with a criminal offence; on the contrary, it is the applicant which brought a criminal charge against another party, in its capacity as third-party prosecutor. In that connection, it must be reiterated that the Convention does not guarantee, as such, the right to institute criminal proceedings against third parties, for the right of access to a court which Article 6 of the Convention secures for everyone wishing to obtain a decision relating to his or her civil rights does not extend to a right to have criminal proceedings brought against a third party with a view to securing his or her conviction (see the following Commission decisions: X. v. the Federal Republic of Germany, application no. 7116/75, 4 October 1976, Decisions and Reports (DR) 7, p. 91; Monica Wallén v. Sweden, application no. 10877/84, 16 May 1985, DR 43, p. 184; and Istvánné Rékási v. Hungary, application no. 31506/96, 25 November 1996, DR 87-A, p. 164).
Furthermore, according to the principles laid down in its case-law, (see, among other authorities the Acquaviva v. France judgment of 21 November 1995, Series A no. 333-A, p. 14, § 46), the Court must ascertain whether there was a “dispute” (contestation) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, while the outcome of the proceedings must be directly decisive for the right in question.
The Court notes that in the instant case the applicant joined the proceedings as a third-party prosecutor in order to secure the conviction of the MNHB, which at the end of January 1996, prior to the general election, had agreed to adopt and disseminate the content of videocassettes distributed by ETA, and to transfer to the latter the slots reserved to it free of charge for party political broadcasts. It did not, however, seek to exercise civil rights related to the alleged offences (see, mutatis mutandis, the following judgments: Tomasi v. France, 27 August 1992, Series A no. 241-A, p. 43, § 121; Acquaviva, cited above, pp. 14–15, § 47; and Aït-Mouhoub v. France of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3226, §§ 43-45).
The applicant’s participation in the proceedings before the domestic courts did not, therefore, concern a civil right. The sole purpose of that participation was to secure the criminal conviction of the MNHB and there was no suggestion that the alleged offence had caused any financial damage.
The Court accepts that the applicant association and its members may claim to have been directly affected by the circumstances surrounding the facts of the case, having regard in particular to their standing as victims or relatives of victims of ETA’s activities. The Court is also conscious of the seriousness of the situation. However, in the light of the foregoing, it is bound to find that the criminal proceedings concerned neither a “dispute” (contestation) over the applicant’s civil rights and obligations, nor the determination of any criminal charge against it within the meaning of Article 6 of the Convention.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed pursuant to Article 35 § 4.
As regards the applicant’s complaint under Article 14 of the Convention, the Court reiterates that it has no independent existence and may be invoked solely in relation to the enjoyment of the rights and freedoms guaranteed by the Convention and its Protocols (see the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports 1997-I, p. 184, § 33). Having regard to the conclusion which it has just reached on the complaint under Article 6 § 1 of the Convention, the Court holds that the complaint under Article 14 of the Convention is likewise incompatible ratione materiae with the provisions of the Convention and must be dismissed pursuant to Article 35 § 4.
For these reasons, the Court unanimously,
Declares the application inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
[1]1. ETA is defined in the judgment of the Supreme Court of 29 November 1997 as follows:
“an armed terrorist organisation seeking to destabilise the institutional and social order so as to obtain independence for the Basque Country by means of terrorist attacks, whether indiscriminate or targeted, that it has carried out in recent years and which have resulted in large numbers of victims and substantial damage, kidnappings with demands for money ransoms and acts of extorsion using the so-called “revolutionary tax”. As a result of some of these actions, several members of the organisation have been deprived of their liberty and are serving prison sentences”.
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