ATRISTAIN GOROSABEL v. SPAIN

FIFTH SECTION

DECISION

Application no. 35215/23
Javier ATRISTAIN GOROSABEL
against Spain

The European Court of Human Rights (Fifth Section), sitting on 4 July 2024 as a Committee composed of:

 Mārtiņš Mits, President,
 María Elósegui,
 Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 35215/23) 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”) on 13 September 2023 by a Spanish national, Mr Javier Atristain Gorosabel (“the applicant”), who was born in 1970, is currently in detention in Donostia/San Sebastián, and was represented by Mr Z. Reizabal Larrañaga, a lawyer practising in Donostia/San Sebastián;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  Relying on Article 6 § 1 of the Convention, the applicant complained about the dismissal of his application for a review of a criminal judgment delivered against him, following the finding of a violation of Article 6 §§ 1 and 3 (c) by the Court (see Atristain Gorosabel v. Spain, no. 15508/15, 18 January 2022). According to his submissions, the Court’s previous judgment should have entailed the reopening of the domestic proceedings, the nullity of his sentence, and his release from prison. He also raised other complaints under various Convention provisions: notably, that because he was still serving a prison sentence as a consequence of his conviction, he was being unlawfully detained, and that such detention amounted to degrading treatment and to an unjustified interference with his family life, contrary to Articles 5, 3 and 8 of the Convention. Lastly, the applicant complained, also under Article 6 of the Convention, that there had been a lack of sufficient reasoning in the Constitutional Court’s decision to declare his last available remedy inadmissible.

2.  On 16 April 2013 the applicant was convicted by the Audiencia Nacional of being a member of a terrorist organisation and of possessing explosives. He was sentenced to seventeen years’ imprisonment. His conviction was essentially based on material found on a seized computer linking him to a terrorist group; explosive material found in both his home and other places, the locations of which he had provided; incriminating statements given by his co-defendants; statements given by witnesses; and the fact that he had remained silent in response to questions from the prosecution. With reference to reports by the forensic doctor, the Audiencia Nacional ruled out the possibility that the applicant had been mistreated. It found that he had given his statements freely and voluntarily, without coercion or pressure of any kind. The applicant lodged several appeals against the judgment, to no avail.

3.  On 24 March 2015 the applicant lodged an application with the Court under Article 6 §§ 1 and 3 (c) of the Convention. He complained that the proceedings against him had not been fair, because while he had been in incommunicado detention during the police investigation, he was assigned a lawyer by way of State-funded legal aid but had not been permitted to receive assistance from a lawyer of his own choosing, or to communicate with that legal aid lawyer in private before and during his questioning by the police.

4.  In a judgment of 18 January 2022, the Court found a violation of the above provisions on the following grounds. Firstly, the national judges had not carried out an individualised assessment or provided any justification as to why it was necessary, in the applicant’s specific circumstances, to restrict his choice of lawyer during his incommunicado detention. Secondly, the applicant’s conviction had been partially based on the evidence obtained as a result of the statements made by him while he had been held incommunicado. Despite the fact that the applicant had been assisted by a legal-aid representative while he was held incommunicado and that he had a lawyer of his own choosing in the subsequent stages of the investigation and during the trial, the Court concluded that the overall fairness of the criminal proceedings had been undermined (see Atristain Gorosabel, cited above, §§ 71-73).

5.  As regards the claims in respect of pecuniary and non-pecuniary damage under Article 41 of the Convention, the Court stated the following:

“77.  The Court is of the view that the applicant must have suffered a certain amount of distress as a result of the violation of his rights under Article 6 of the Convention, which cannot be compensated solely by the finding of a violation or by the reopening of the proceedings (see, mutatis mutandis, Gil Sanjuan v. Spain, no. 48297/15, § 52, 26 May 2020, and Elisei-Uzun and Andonie v. Romania, no. 42447/10, § 78, 23 April 2019). It therefore awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.”

6.  The judgment became final on 9 May 2022, after the panel of the Grand Chamber rejected the Government’s request for referral of the case.

7.  The applicant made several submissions to the Committee of Ministers concerning the supervision of the execution of the Court’s judgment in his case. He claimed that since the Court had already established that the proceedings as a whole had not been fair in those proceedings, the Supreme Court should have allowed his request to reopen the proceedings. He submitted that the Supreme Court had, however, rejected his request for a review of the case (see paragraph 15 below), and that as a consequence, he had again been detained and imprisoned in order to serve the remainder of his sentence.

8.  On 23 November 2023, the Spanish Government submitted an action report to the Committee of Ministers. They confirmed that the just-satisfaction amount awarded to the applicant had been paid to him on 28 June 2022. They also informed the Committee of Ministers of the Supreme Court’s decisions concerning the reopening of the proceedings and the Constitutional Court’s rejection of his amparo appeal. The Government submitted that in the light of the findings of the domestic courts, the individual measures taken, namely the payment of compensation and the finding of a violation, sufficed in the present case to achieve restitutio in integrum for the applicant. They further denied that additional general measures needed to be adopted in this case, since the judgment had been widely disseminated and had received extensive press coverage. Moreover, the legislation in force when the applicant had suffered a violation of his right to fair proceedings had since been amended, and the incommunicado detention procedure had been brought fully into compliance with the standards established in Article 6 of the Convention.

9.  The procedure for supervision of the execution of the Court’s judgment was closed by Resolution CM/ResDH(2024)148, adopted by the Committee of Ministers on 1 July 2024 at the 1503rd meeting of the Ministers’ Deputies. The Committee of Ministers, having examined the measures adopted by the Spanish authorities to give effect to the judgment of 18 January 2022, including the payment of the just satisfaction awarded by the Court and having satisfied itself that all the measures required by Article 46 § 1 of the Convention had been adopted, decided to close the examination of that case.

10.  Relying on Article 954 § 3 of the Code of Criminal Procedure, on 26 January 2022 the applicant lodged an application for review with the Supreme Court. He submitted that the Court’s judgment of 18 January 2022 had unanimously found that the judgment of 16 April 2013 of the Audiencia Nacional which had convicted him had violated his right to fair proceedings and that the effects of that violation persisted, since he was still in prison and had been serving his sentence for eleven years at that time. The applicant requested the reopening of the proceedings in order to achieve restitutio in integrum.

11.  The applicant also submitted a request to the Audiencia Nacional to be immediately released from prison. On 17 February 2022 the Audiencia Nacional ordered his release from prison, pending the Supreme Court’s decision on the review of the proceedings.

12.  On 9 May 2022 the Court’s judgment became final, and the review proceedings could be examined by the Supreme Court.

13.  On 24 May 2022 the public prosecutor’s office submitted that the application for review should not be allowed, in view of the fact that the domestic law established that proceedings would only be reopened following a judgment of the European Court of Human Rights finding a violation “as long as the violation, on account of its nature and severity, entailed effects that persisted and could not be remedied in any other way than by a re-examination of the case by the courts” (Article 954 § 3 of the Code of Criminal Procedure). The public prosecutor’s office submitted that an individualised assessment of the case had led to the conclusion that the applicant had been convicted on the basis of a range of evidence which had not been limited to his own statements at the police station. As a result, the conviction had a sufficient evidential basis and therefore the violation found by the Court based on the restriction of the applicant’s right to have assistance from a lawyer of his own choosing did not, in this particular case, entail effects which persisted and which could not be remedied in any other way than by a re-examination of the case.

14.  On 26 May 2022 the Supreme Court requested from the Audiencia Nacional a copy of the decision to detain the applicant incommunicado, as well as a copy of the trial records, including the applicant’s statement. On 30 May 2022 it requested a copy of the entirety of the trial sessions. The applicant lodged an appeal against that request, arguing that the Supreme Court did not need to assess the evidence in order to allow the reopening of the proceedings.

15.  In a decision of 1 June 2022, the Supreme Court refused to allow the application for review. It concluded that, in the light of the Court’s judgment, the applicant’s conviction had been based on additional evidence, not limited to his statements given without the assistance of a lawyer of his own choosing (which, in any event, had been given with the assistance of a legal-aid representative). As a result, it could not be said that the effects of the violation persisted and could only be remedied if the proceedings were reopened and reviewed. Therefore, under domestic law, there was no obligation to allow the reopening of the proceedings, as it was not appropriate in the present case. It held as follows:

“SECOND.- The review for which authorisation has been requested, in addition to the legal requirements set out above, is subject to another requirement that affects the essence of any application for review. This occurs when there is no other remedy to repair the violation established. ... Consequently, we must check whether, by suppressing the evidence gathered in a manner that has been declared in violation of the Convention, there remains other sufficient and valid evidence against [the applicant], such as to make the review not appropriate ...

THIRD.- ... The violation that the Court found regarding the detention is that there had been no individualised decision by the investigating judge that justified why the detainee was not allowed access to a lawyer of his own choosing, although there was evidence of the applicant belonging to a terrorist group and being in possession of explosives, which had led to the incommunicado detention ...

The judicial decisions which restricted his right to be assisted by a lawyer of his own choosing were of a general nature... and did not imply an assessment of the specific case ...

FOURTH.- As regards reparation, the Court considers that the content of the violation found has caused the applicant ‘a certain amount of distress as a result of the violation of his rights under Article 6 of the Convention, which cannot be compensated solely by the finding of a violation or by the reopening of the proceedings ... It therefore awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.’

The Court has thus proceeded to repair the damage caused, by means of the declaration, the valuation and the granting of compensation, and does not make any arguments that would allow further action for reparation.

However, the convicted person has submitted an application for review with an apparently simple argument: since it has been declared by the European Court of Human Rights that his conviction was in violation of the right to a fair trial, the review is appropriate in accordance with Article 954 § 3 of the Code of Criminal Procedure.

However, this allegedly automatic nature of the review of the conviction does not follow from the law or the case-law on the interpretation of this provision. The review is not a necessary consequence of the declaration of a violation. ... [T]he review will be appropriate ‘whenever the violation entails effects that persist and cannot be remedied in any other way than through the review’. Consequently, it will be necessary to verify in each case whether and to what extent the breach of the Convention found in the Court’s judgment affects the essential content of the violated right, as well as whether the effects of the violation persist and cannot be remedied in any other way than through a review. The case-law of the European Court of Human Rights ... has stated that in the particular circumstances of each case ‘the respondent State remains free, in principle, under the supervision of the Committee of Ministers, to choose the means of fulfilling its obligations under Article 46 § 1 of the European Convention on Human Rights, provided that they are compatible with the judgment of this Court’ ...

Paragraph 66 of the Court’s judgment is particularly relevant for our decision regarding the reparation of the violation found; ... the Court notes that the applicant’s conviction was partially based on the evidence obtained as a result of the statements he made at the police station while he was being held incommunicado. In particular, those statements were essential to the discovery of explosive material. As a result of his statements, the police found solid data and evidence that the applicant had committed the offences in question. The conviction was based primarily on the explosives and computer material found in the applicant’s possession, but also on other evidence, such as the incriminating statements of the co-defendants, the statements of witnesses and the applicant’s silence in response to the prosecution’s questions. ...

Therefore, even disregarding the defendant’s statements, the investigating bodies knew of and investigated the existence of the weapons and their storage by the defendant. The person who rented the storage room to him also testified that he was unaware of the existence of the false bottom in which the weapons were stored. The accused was questioned about those facts and he refused to respond to the questions asked by the prosecution about his connection to the weapons seized in properties managed by him.

Consequently, and in accordance with the arguments of the public prosecutor’s office, it must be declared that there is no need to authorise the application for review lodged [by the applicant], since, in the absence of the statements by the applicant that were found by the European Court of Human Rights to have amounted to a violation of his rights, the same conclusion to convict the applicant could have been reached from the facts, owing to other evidence on which the conviction was based.”

16.  On 2 June 2022, the Audiencia Nacional ordered the applicant’s detention to serve the remaining part of his sentence. He was immediately detained and imprisoned. The sentence was set to end on 18 July 2028. He lodged an appeal on 6 June 2022, which was dismissed on 27 June 2022.

17.  On 7 June 2022 the applicant lodged an application to have the above-mentioned decision quashed (incidente de nulidad). He argued that the decision had violated his right of access to a court, as well as to the execution of judgments on their own terms. He additionally requested the suspension of the effects of the decision of 1 June 2022, and especially his immediate release from prison. On 6 July 2022 the applicant’s application for the previous decision to be quashed was declared inadmissible by the Supreme Court, on the grounds that it had merely been based on his disagreement with the impugned decision.

18.  The applicant lodged an amparo appeal, complaining of a violation of his right to effective judicial protection, particularly as regards both the right to the execution of judgments on their own terms and the right to access to a court, in addition to the right to liberty. On 27 July 2023, the appeal was declared inadmissible by the Constitutional Court, having regard to the clear lack of evidence of a violation of a fundamental right.

THE COURT’S ASSESSMENT

19.  The Court observes, firstly, that in examining whether the procedure for the Supreme Court’s consideration of the application for review was compatible with the fair-trial standards deriving from Article 6 of the Convention, it is dealing with a new issue in relation to its previous judgment. As it has already established (see, namely, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 54-58, 11 July 2017), Article 46 of the Convention does not preclude its examination of a new complaint under Article 6 of the Convention in so far as it includes new aspects that were not determined in the initial judgment. The Court notes, moreover, that the supervision procedure in respect of the execution of the judgment has already been declared closed by the Committee of Ministers, which was satisfied that all the measures required by Article 46 § 1 of the Convention had been adopted (see paragraphs 7-9 above). The Court will therefore limit its assessment to the new issues raised in the present application.

20.  Secondly, concerning applications for review, the Court observes that the Spanish legislative framework requires the Supreme Court to compare the conviction in question with the grounds on which the Court based its finding of a violation of the Convention, and to determine whether the violation, owing to its nature and severity, entails effects that persist and cannot be remedied in any other way than by a court review. Under Article 954 § 3 of the Spanish Code of Criminal Procedure, the right to the reopening of completed criminal proceedings following a judgment of the Court finding a violation of the Convention is neither absolute nor automatic. The Supreme Court is called upon to determine the criminal charge imposed to the applicant. The Court considers, as a result, that Article 6 applies in its criminal aspect to the review proceedings even if this remedy is classified as extraordinary in domestic law (see the principles concerning the applicability of Article 6 in its civil limb to extraordinary remedies set out in Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 44 - 50, ECHR 2015, and the Court’s reasoning concerning the applicability of Article 6 in its criminal limb to extraordinary proceedings in Moreira Ferreira, cited above, § 60 – 67).

21.  Thirdly, the Court will assess the applicant’s complaint regarding the Supreme Court’s dismissal of his application for a review of the criminal judgment delivered against him, which had allegedly deprived him of his right to fair proceedings under the criminal limb of Article 6 § 1 of the Convention. The Court reiterates at the outset that it does not have jurisdiction to order the reopening of proceedings at the domestic level following a previous judgment (see the general principles as summarised in Moreira Ferreira, cited above, §§ 47-51; see also Recommendation No. R(2000)2 of the Committee of Ministers to member States on the re‑examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights). The respondent State remains free to choose the means by which it will discharge its obligation to put an applicant, as far as possible, in the position he or she would have been in had the requirements of the Convention not been disregarded, provided that such means are compatible with the conclusions set out in the Court’s judgment and with the rights of the defence (see Moreira Ferreira, cited above, § 50). A finding by the Court of a violation of Article 6 of the Convention does not automatically require the reopening of the domestic criminal proceedings (ibid., § 51).

22.  The question in the present case is whether the reasons provided in the judicial decision by the Supreme Court dismissing the applicant’s request to reopen the criminal proceedings complied with the fair-trial standards of the Convention; in other words, whether that judicial decision was arbitrary and resulted in a denial of justice (see the well-established case-law of the Court set out in Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 60-64, ECHR 2015, and summarised in Moreira Ferreira, cited above, §§ 83-84).

23.  The Court emphasises that, in its judgment of 18 January 2022, it held that the distress caused to the applicant as a consequence of the violation found in that judgment could not be compensated for solely by the finding of a violation or by the reopening of the proceedings, and therefore awarded a sum in respect of non-pecuniary damage. While the reopening of the proceedings was described as one of the possible appropriate solutions, it was not described as necessary, and it was ruled out as an exclusive one. Once the sum awarded had been paid to the applicant (see paragraph 8 above), it was for the respondent State to determine what the most appropriate way of executing the judgment was, in the specific circumstances of the case. The advisability of the best option was a matter for assessment by the domestic courts.

24.  As regards the Supreme Court’s interpretation of the judgment delivered by the Court on 18 January 2022, it stated that although the evidence submitted by the applicant without the assistance of a lawyer of his own choice, but with a legal-aid lawyer, had had some weight in his conviction, there had been sufficient additional evidence to convict him in any event, and therefore a review of the case was not appropriate.

25.  The Court considers it unnecessary to express a position on the validity of that interpretation. It is sufficient for the Court to satisfy itself that the decision of 1 June 2022 was not arbitrary (see Moreira Ferreira, cited above, § 96; compare Bochan, cited above, §§ 63-65, and Emre v. Switzerland (no. 2), no. 5056/10, §§ 71-75, 11 October 2011).

26.  The Court cannot conclude that the Supreme Court’s reading of the Court’s judgment was the result of a manifest factual or legal error leading to a denial of justice. Having regard to the principle of subsidiarity and to the wording of its 2022 judgment, it considers that the Supreme Court’s refusal to reopen the proceedings as requested by the applicant was not arbitrary. The Supreme Court’s decision of 1 June 2022 provides a sufficient indication of the grounds on which it was based. Those grounds fall within the domestic authorities’ margin of appreciation and do not distort the findings of the Court’s judgment.

27.  Having regard to the foregoing, the Court concludes that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

28.  The applicant complained that his new detention and deprivation of liberty in order to serve the remainder of his sentence, even after the Court had found a violation of his right to fair proceedings, had caused him moral suffering, which amounted to inhuman or degrading treatment contrary to Article 3 of the Convention. He also argued that his detention was preventing him from keeping in contact with his young children and that this violated his right to family life under Article 8 of the Convention.

29.  The Court finds that the applicant failed to raise the above complaints before the domestic courts. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

30.  The applicant also alleged violations of his rights under Articles 5 and 6 of the Convention, based, respectively, on his deprivation of liberty in order to serve his prison sentence as a consequence of his case not being reopened, and on the lack of sufficient reasoning in the Constitutional Court’s decision to declare his amparo appeal inadmissible.

31.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto.

32.  It follows that this part of the application is also manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 August 2024.

 Martina Keller Mārtiņš Mits
 Deputy Registrar President