THIRD SECTION
DECISION
(extracts)
Application no. 46479/10
Rafael BENAVENT DÍAZ
against Spain
The European Court of Human Rights (Third Section), sitting on 31 January 2017 as a Chamber composed of:
Helena Jäderblom, President,
Helen Keller,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
Blanca Lozano Cutanda, ad hoc judge,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 23 July 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the withdrawal of Luis López Guerra, the judge elected in respect of Spain (Rule 28 of the Rules of Court), and the appointment by the President on 29 June 2016 of Blanca Lozano Cutanda to sit as an ad hoc judge in his place (Article 26 § 4 of the Convention and Rule 29 § 1 (a)),
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Rafael Benavent Díaz, is a Spanish national living in Madrid. He was represented before the Court by Mr M. Casado Sierra and Ms M.D. Flores González, lawyers practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr R.‑A. León Cavero, State Counsel and Head of the Legal Department for Human Rights at the Ministry of Justice.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. At the material time the applicant was a non-commissioned officer (brigada) in the Spanish army. He was assigned to a unit (the Spanish National Intelligence Cell) in Sarajevo (Bosnia and Herzegovina).
4. In a decision of 22 February 2006 Lieutenant-Colonel M.G.S., the applicant’s commanding officer, imposed a disciplinary punishment of six days’ detention on him for a minor breach after he had arrived late for duty on the night of 20 February 2006. The applicant was to serve his punishment in his service accommodation in the Butmir camp in Bosnia and Herzegovina, while being required to take part in the activities of his unit during regular working hours.
5. The above-mentioned decision was taken in accordance with sections 7(9) and 9(1), third indent, of Basic Law (Ley Orgánica) no. 8/1998 of 2 December 1998 on the disciplinary regime of the armed forces (“Basic Law no. 8/1998”), by which late arrival for duty was a minor breach punishable by detention for between one and thirty days.
6. The applicant was informed of the punishment and of the possibility of lodging an appeal with a higher administrative authority, which he did on 7 March 2006. The Chief of the Defence Staff, the competent authority to consider the appeal, dismissed it in a decision of 5 April 2006.
7. The applicant applied to the Madrid no. 1 Territorial Military Court for judicial review of the disciplinary decision, arguing that his punishment of detention had infringed his right to liberty as guaranteed by Article 5 § 1 (a) of the Convention and amounted to a violation of the Spanish Constitution, and specifically of Article 17 § 1 (right to liberty), Article 24 (right to effective judicial protection and presumption of innocence) and Article 25 (principle of legality). He relied in particular on the Court’s judgment in Dacosta Silva v. Spain (no. 69966/01, ECHR 2006‑XIII), submitting that it had found a violation of Article 5 § 1 (a) of Convention where a member of the Civil Guard had been placed under house arrest in accordance with Basic Law no. 11/1991 of 17 June 1991 on the disciplinary regime of the Civil Guard. With reference to that judgment, the applicant argued that the reservation made by Spain in 1979 in respect of Articles 5 and 6 of the Convention concerning disciplinary regulations in the armed forces (see paragraphs 18-25 below) could not be applicable to Basic Law no. 8/1998 – the basis for the punishment imposed on him – on the grounds that Spain had not informed the Council of Europe of that law’s entry into force until 23 May 2007, after he had already served his punishment.
8. Both the military prosecutor’s office and State Counsel submitted that the application should be dismissed.
9. In a judgment of 9 April 2008 the Madrid no. 1 Territorial Military Court found against the applicant by two votes to one. After analysing and rejecting the allegations of breaches of domestic law, it held that there had been no violation of Article 5 § 1 of the Convention. It found that the reservation entered by Spain in respect of Articles 5 and 6 of the Convention concerning disciplinary regulations in the armed forces (see paragraphs 18-25 below) was applicable to the present case. The reservation had remained continuously in force since 1979, notwithstanding the fact that the Spanish authorities had omitted to inform the Council of Europe of the 1998 legislative amendment (corresponding to the entry into force of Basic Law no. 8/1998) until 23 May 2007. In the court’s view, that fact in itself was not sufficient to cast doubt on the validity of the reservation, especially as the 1998 law had not entailed substantial changes to the disciplinary regulations covered by the initial reservation. ...
The president of the court, Mr J.M.M.C., appended a separate opinion to the judgment, in which he endorsed the applicant’s arguments and expressed the view that, in the absence of a reservation specifically concerning the 1998 law that had been applied in the applicant’s case, the punishment of deprivation of liberty imposed on the applicant had to satisfy the requirements deriving from Article 5 of the Convention.
10. The applicant appealed on points of law. In a decision of 2 April 2009 the Military Division of the Supreme Court dismissed the appeal, confirming the validity of the 1979 reservation and its applicability to the applicant’s detention. ...
11. The applicant applied to have that decision set aside, but the Supreme Court rejected his application on 16 July 2009.
12. Relying on Articles 17 (right to liberty) and 24 (right to effective judicial protection) of the Constitution and Article 5 § 1 and Article 6 of the Convention, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 22 February 2010 the Constitutional Court declared the appeal inadmissible as lacking constitutional significance.
B. Relevant domestic law and practice
...
14. The relevant provisions of Basic Law no. 12/1985 of 27 November 1985 on the disciplinary regime of the armed forces (“Basic Law no. 12/1985”) were worded as follows:
Section 8(8)
“Minor breaches of the regulations are:
...
(8) lack of punctuality in the performance of duties and unjustified absence, unless this constitutes a more serious breach;
...”
Section 10
“(1) The penalties which may be imposed for minor breaches are:
...
– detention at home or within the unit for between one and thirty days.”
Section 14
“Detention for between one and thirty days shall consist of a restriction of liberty requiring the offender to remain at home or within the unit, ship, base, barracks or any other designated premises throughout the specified period. The offender may take part in the activities of his or her unit and shall remain within the designated location for the rest of the time.”
Section 46
“The execution of punishments shall start on the day on which the offender is notified of the decision by which they are imposed. ...”
Section 49
“A member of the armed forces who has been given a disciplinary punishment may appeal in writing against the punishment, without prejudice to its execution.”
Section 54
“The offender may request the suspension of a punishment entailing deprivation of liberty [imposed] for a serious breach, pending the examination of the appeal. ...”
15. The relevant provisions of Basic Law no. 8/1998, as in force at the material time, were worded as follows:
Section 7(9)
“Minor breaches of the regulations are:
...
(9) lack of punctuality in the performance of duties and unjustified absence, unless this constitutes a more serious breach;
...”
Section 9(1), third indent
“(1) The penalties which may be imposed for minor breaches are:
...
– detention at home or within the unit for between one and thirty days.”
Section 13
“Detention for between one and thirty days shall consist of a restriction of liberty requiring the offender to remain at home or within the unit, ship, base, barracks or any other designated premises throughout the specified period. The offender shall take part in the activities of his or her unit and shall remain within the designated location for the rest of the time.”
Section 67
“Disciplinary punishments shall be immediately enforceable and their execution shall start on the day on which the offender is notified of the decision by which they are imposed. ...”
Section 75
“(1) The persons concerned may challenge decisions by which punishments have been imposed by means of the remedies provided for in the following sections, without prejudice to the execution of the punishment imposed.
...”
Section 81
“The offender may request the suspension of punishments [imposed] for a serious breach and of any extraordinary punishments pending the examination of the appeal. ...”
16. Pursuant to the single repealing clause of Basic Law no. 8/1998, Basic Law no. 12/1985 was expressly repealed.
...
C. Reservation by Spain concerning the applicability of Articles 5 and 6 of the Convention in the field of military discipline
18. When Spain deposited the instrument of ratification of the Convention on 4 October 1979, it made a reservation in respect of Articles 5 and 6, on account of their incompatibility with the provisions of Chapter XV of Part II and Chapter XXIV of Part III of the Code of Military Justice on disciplinary regulations in the armed forces. It summarised the provisions referred to as follows:
“The Code of Military Justice provides that the punishment of minor offences may be ordered directly by an offender’s official superior, after having elucidated the facts. The punishment of serious offences is subject to an investigation of a judicial character, in the course of which the accused must be given a hearing. The penalties and the power to impose them are defined by law. In any case, the accused can appeal against the punishment to his immediate superior and so on, up to the Head of State.”
19. The Code of Military Justice referred to in the reservation was the Law of 17 July 1945.
Part II was entitled “Military offences and breaches of discipline” and its Chapter XV laid down the punishments that could be imposed for serious and minor breaches. For minor breaches, the applicable punishment was detention for up to two months, except in the case of officers and non-commissioned officers, who could be detained at home or within the unit for up to fourteen days and in “a castle or other military facility” for between fifteen days and two months (Article 416).
Part III was entitled “Military proceedings” and its Chapter XXIV concerned proceedings for breaches of discipline.
20. Those provisions were replaced by Chapter II of Part III and Chapters II, III and IV of Part IV of Basic Law no. 12/1985, which took effect on 1 June 1986. Those chapters related to disciplinary punishments (Chapter II of Part III), proceedings for minor breaches (Chapter II of Part IV), proceedings for serious breaches (Chapter III of Part IV) and legal remedies (Chapter IV of Part IV).
On 28 May 1986 the Permanent Representative of Spain to the Council of Europe confirmed the reservation in respect of Articles 5 and 6 of the Convention on account of their incompatibility with the new law,[1] in the following terms:
“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 Basis Law 12/1985 of 27 November – Chapter II of Part III and Chapters II, III and IV of Part IV – concerning the disciplinary regime of the Armed Forces, which will enter into force on 1 June 1986.”
21. This amendment to the reservation was published in the State Official Gazette on 30 September 1986.
22. On 3 February 1999 Basic Law no. 8/1998 come into force, replacing Basic Law no. 12/1985. Part III of the new law was devoted to disciplinary breaches and punishments, and Part IV to the procedure for imposing punishments, both for minor breaches (Chapter II) and for serious breaches (Chapter III).
On 23 May 2007 the Ministry of Foreign Affairs of the Kingdom of Spain informed the Council of Europe that the reservation made in respect of Articles 5 and 6 of the Convention had been updated. The updated version, registered with the Council of Europe Secretariat, read as follows:
“Spain, in accordance with Article 64 of the Convention [Article 57 since the entry into force of Protocol No. 11], reserves itself the implementation of Articles 5 and 6 insofar as they could be incompatible with [Basic] Law 8/1998, of 2 December, Chapters II and III of [Part] III and Chapters I, II, III, IV and V of [Part] IV of the Disciplinary Regime of the [Armed] Forces, which came into force on 3 February 1999.”
23. This amendment to the reservation was published in the State Official Gazette on 7 November 2007.
24. On 19 February 2015 a declaration updating the reservation entered by Spain in respect of Articles 5 and 6 of the Convention was set out in a note verbale from the Permanent Representation of Spain, registered with the Council of Europe Secretariat on 20 February 2015. The declaration was worded as follows:
“[Basic] Law 8/1998 of 2 December, of the Disciplinary Regime of the [Armed] Forces has been substituted by [Basic] Law 8/2014, of 4 December, of the Disciplinary Regime of the [Armed] Forces, enacted on 4 December 2014 and which will enter into force on 5 March 2015. This [Basic] Law 8/2014 repeals [Basic] Law 8/1998, reduces the maximum limit of the duration of the sanctions imposing deprivation of liberty for minor or serious offences, as well as the one of ... preventive custody, and maintains the maximum limit of sixty days for the duration of the sanctions imposing deprivation of liberty for very serious offences, which can be imposed without judicial intervention. Regarding procedures, the new [Basic] Law progresses in the recognition of personal [guarantees] and rights.
The Kingdom of Spain maintains and updates its reservation, which reads as follows:
‘Spain, in accordance with Article 64 of the Convention [currently Article 57], reserves itself the implementation of Articles 5 and 6 insofar as they could be incompatible with [Basic] Law 8/2014, of 4 December (Chapter II of [Part] I, [Part] II, [Part] III, Chapter I of [Part] IV and Additional Provisions fourth and fifth), of the Disciplinary Regime of the [Armed] Forces, enacted on 4 December 2014 and which will enter into force on 5 March 2015.’”
25. This amendment to the reservation was published in the State Official Gazette on 17 April 2015.
D. Relevant international and European legal instruments
1. The Vienna Convention on the Law of Treaties (1969)
...
28. Article 22 of the Vienna Convention, on withdrawal of reservations and of objections to reservations, provides:
“1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal.
...
3. Unless the treaty otherwise provides, or it is otherwise agreed:
(a) The withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State;
...”
29. Article 23 of the Vienna Convention, on procedure regarding reservations, provides:
“A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty.
...
4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.”
...
COMPLAINTS
33. Relying on Article 5 § 1 and Article 6 § 1 of the Convention, the applicant complained that he had been deprived of his liberty on the basis of a decision by his commanding officers in disciplinary proceedings conducted without any prior judicial intervention.
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 1 AND ARTICLE 6 § 1 OF THE CONVENTION
34. The applicant challenged the lawfulness of his detention, complaining in particular that he had been deprived of his liberty on the basis of a decision by his commanding officers in disciplinary proceedings conducted without any prior judicial intervention. He relied on Article 5 § 1 and Article 6 § 1 of the Convention, which provide:
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...”
Article 6
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”
35. The Government contested that argument.
A. The parties’ submissions
1. Preliminary objection concerning the reservation by Spain in respect of Articles 5 and 6 of the Convention
36. As a preliminary argument, the Government referred to the reservation made by Spain in respect of Articles 5 and 6 of the Convention. They noted that the reservation had not been suspended during the period between 3 February 1999 (when Basic Law no. 8/1998 had come into force) and 23 May 2007 (when the amendment or update to the reservation had been registered with the Council of Europe Secretariat). The only existing reservation was the one made when Spain had deposited the instrument of ratification of the Convention in 1979, since by Article 57 § 1 of the Convention, it was not possible to enter a reservation at any subsequent time. Spain had later given notice of simple “updates” to the reservation, and not of new reservations.
37. In the Government’s submission, the reservation in issue in the present case was specific in nature since it referred to legal classification, penalties and the procedure associated with the imposition and execution of military disciplinary punishments. The reservation contained a brief reference to the provisions of domestic law to which it related. Its purpose was to safeguard the public interest, which required the proper functioning of the armed forces, by maintaining military discipline. The domestic law forming the subject of the reservation had not ceased to be in force at any time. The Government pointed out that the 1945 Code of Military Justice had been replaced by successive basic laws on the disciplinary regime of the armed forces, dealing with the same subject as the reservation, as was indicated by the titles of the successive laws and the contents of the parts to which the reservation applied. The successive laws had, moreover, gradually extended the substantive and procedural safeguards available to the armed forces.
38. The Government submitted that the condition in Article 57 § 2 of the Convention (whereby any reservation had to contain “a brief statement of the law concerned”) had been satisfied at the time of the initial reservation, which had contained details of the parts of the law that were specifically concerned. This approach of indicating the laws to which the reservation applied was far more precise than what was required under the Court’s minimum standards in this area, and the Government referred in this regard to Chorherr v. Austria (25 August 1993, §§ 13 and 18-20, Series A no. 266‑B). This condition had also been satisfied at a later stage, since the Council of Europe had been notified of the successive laws concerned. Moreover, at the present time – when the Court was required to assess the scope of the reservation – the relevant Council of Europe bodies had been duly notified of all the legislative amendments and could not be unaware of their existence. Observing that in Dacosta Silva (cited above, § 35) the Court had taken note of the fact that Spain had not yet notified the Council of Europe of the entry into force of the 1998 law, the Government argued that the Court’s finding in that case – which had, moreover, concerned a member of the Civil Guard, and not a serviceman – did not mean that the reservation in question was no longer valid.
39. The Government submitted that the delay between the entry into force of the 1998 law and the point at which the Council of Europe had been notified of the amendment to the reservation had not undermined legal certainty for members of the armed forces or citizens in general, since the legislative provisions in question had all been published in the State Official Gazette, in accordance with the requirements of domestic law. Notifications of updates or amendments to a reservation were not addressed to the State’s own citizens but to the other Contracting Parties and the Convention institutions, in particular the Court.
40. In the Government’s submission, the applicant’s argument that the delay by the State in giving notice of the amendment to the reservation had suspended the effects of the reservation itself had no legal basis, whether in the Convention itself or in the Vienna Convention on the Law of Treaties. In that connection, they pointed out that, in accordance with Article 22 of the Vienna Convention, the withdrawal or suspension of a reservation required an express declaration of the State’s intention, but no such declaration had been issued in the present case. Tacit actions by a State could not have the effect of suspending the validity of an ongoing reservation.
41. The applicant explained that the argument he was making was that the reservation by Spain in respect of Articles 5 and 6 of the Convention had no longer existed in relation to Basic Law no. 8/1998, and not that the reservation in question had been suspended during the period between 3 February 1999 and 23 May 2007. In his submission, the present case concerned new reservations made each time on the basis of changes to the law, and not a single reservation that had undergone successive amendments. In the absence of a new reservation at the time of the entry into force of Basic Law no. 8/1998, the initial reservation could no longer be said to exist. The extensive application of a pre-existing reservation to a subsequent law was unacceptable, as was the retrospective application of a new reservation, and the applicant criticised the Government’s position in that regard. In his submission, such an approach would be at odds with respect for legal certainty – in particular for members of the armed forces – good faith, the principle of legitimate expectations and the principle that reservations in the human rights field should remain exceptional.
42. Furthermore, the applicant challenged the Government’s argument that the domestic law to which the reservation applied had not ceased to be in force at any time, and referred in that connection to the repealing clauses inserted in the successive basic laws on the disciplinary regime of the armed forces.
...
B. The Court’s assessment
1. General principles on reservations
47. The Court reiterates that in order to be valid, a reservation must satisfy the following conditions: (1) it must be made at the time the Convention or the Protocols thereto are signed or ratified; (2) it must concern a particular provision of the Convention; (3) it must relate to specific laws in force at the time of ratification; (4) it must not be a reservation of a general character; and (5) it must contain a brief statement of the law concerned (see Põder and Others v. Estonia (dec.), no. 67723/01, ECHR 2005-VIII; Liepājnieks v. Latvia (dec.), no. 37586/06, § 45, 2 November 2010; and Schädler-Eberle v. Liechtenstein, no. 56422/09, § 60, 18 July 2013).
48. The Court has had occasion to specify that Article 57 § 1 of the Convention requires “precision and clarity” from the Contracting States, and that by requiring them to submit a brief statement of the law concerned, this provision does not impose a “purely formal requirement” but sets out “a condition of substance which constitutes an evidential factor and contributes to legal certainty” (see Belilos v. Switzerland, 29 April 1988, §§ 55 and 59, Series A no. 132; Weber v. Switzerland, 22 May 1990, § 38, Series A no. 177; and Eisenstecken v. Austria, no. 29477/95, § 24, ECHR 2000‑X). The purpose of Article 57 § 1 is to provide a guarantee – in particular for the Contracting Parties and the Convention institutions – that the reservation does not go beyond the provisions expressly excluded by the State concerned (see Belilos, § 59, and Dacosta Silva, § 37, both cited above).
49. The Court observes that it found in Chorherr (cited above, § 20) that the rule in question did not mean that it was necessary to provide a description, even a concise one, of the substance of the provisions in question. It held that a reference to the Federal Official Gazette – preceded, moreover, by an indication of the subject matter of the relevant provisions – complied with the requirement of Article 57 § 2 of the Convention (see also Steck-Risch v. Liechtenstein (dec.), no. 63151/00, ECHR 2004-II). Conversely, it has found that a reservation which merely referred to a permissive, non-exhaustive provision of the Constitution and did not mention the specific provisions excluding public hearings did not satisfy the requirements of Article 57 § 2 of the Convention (see Eisenstecken, cited above, § 29, and Gradinger v. Austria, 23 October 1995, § 51, Series A no. 328‑C; see also Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 210, 4 March 2014, concerning a reservation that did not refer to or mention specific provisions of Italian law excluding offences or proceedings from the scope of Article 4 of Protocol No. 7 to the Convention).
50. The Court further reiterates that the expression “reservation of a general character” in Article 57 means, in particular, a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope. The wording of the declaration must allow the scope of the Contracting State’s undertaking to be precisely ascertained, in particular as to which categories of dispute are included, and must not lend itself to different interpretations (see Belilos, cited above, § 55, and Steck-Risch, cited above).
51. In this connection, the Court reiterates that even significant practical difficulties in indicating and describing all of the provisions concerned by the reservation cannot justify a failure to comply with the conditions set out in Article 57 of the Convention (see Liepājnieks, cited above, § 54).
52. As regards the rule that only the laws “then in force” at the time of ratification may be the subject of a reservation, the Court has found that this requirement was not satisfied when the new legislative provision was not essentially identical to the one in force at the time of ratification, in so far as the purpose of the provision was to extend the scope of the reservation (see, for example, Fischer v. Austria, 26 April 1995, § 41, Series A no. 312, concerning the introduction of a provision extending the power of the national courts to refuse to hold a hearing; see also Stallinger and Kuso v. Austria, 23 April 1997, § 48, Reports of Judgments and Decisions 1997‑II). However, the Court has accepted that a reservation can be applicable to a subsequent law where the law in question “goes no further than a law in force at the time when the reservation was made” (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 37, Series A no. 48, concerning a law that was no more than a re-enactment of an identical provision of the previous law covered by the reservation; see also Schädler-Eberle, cited above, §§ 61 and 73, concerning a legislative amendment that did not extend the scope of the reservation already made and had not given rise to a formal amendment to the reservation in a notice issued to the Council of Europe).
53. The Court always retains the power to review whether a particular reservation is valid and complies with the requirements of Article 57 of the Convention; should it deem the reservation valid, the Court is not authorised to review the conformity of the legal provisions in question with the Convention Articles to which the reservation relates (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 60, ECHR 2002‑II (extracts)).
2. Application of the above principles in the present case
54. The Court observes that when Spain deposited the instrument of ratification of the Convention in 1979, it made a reservation under what is now Article 57 (former Article 64) of the Convention in respect of Articles 5 and 6, on account of their incompatibility with the provisions of the Code of Military Justice on the disciplinary regime of the armed forces (see “Reservation by Spain concerning the applicability of Articles 5 and 6 of the Convention in the field of military discipline” above). It further notes that the reservation was updated in 1986, when Basic Law no. 12/1985 came into force (see paragraph 20 above; see also Rosa Recuerda v. Spain, no. 16615/90, Commission decision of 2 December 1991).
55. The Court observes, however, that Basic Law no. 12/1985 was replaced by Basic Law no. 8/1998, which came into force on 3 February 1999 (see paragraph 22 above). The reservation by Spain in respect of Articles 5 and 6 of the Convention was not updated in the light of the latter law until 23 May 2007, when the Spanish Ministry of Foreign Affairs informed the Council of Europe that the reservation had been updated (see paragraph 22 above).
56. The Court notes that on 22 February 2006 the applicant was placed in detention in the context of disciplinary proceedings brought against him under sections 7(9) and 9(1), third indent, of Basic Law no. 8/1998. It must therefore ascertain whether the legal basis on which the domestic authorities imposed the punishment, namely Basic Law no. 8/1998, was covered by Spain’s reservation.
57. In this connection, the Court notes that the subject matter of Spain’s reservation was the disciplinary regime of the armed forces, which was governed by the Military Code of Justice at the time the reservation was made (in 1979) and subsequently by Basic Law no. 12/1985, of which Spain notified the Council of Europe in 1986. In 2006, at the time to which the present case relates, the disciplinary regime of the armed forces was governed by Basic Law no. 8/1998, of which the Council of Europe was not notified until 23 May 2007. Currently, the disciplinary regime of the armed forces is governed by Basic Law no. 8/2014 of 4 December 2014, of which the Council of Europe Secretariat was informed on 20 February 2015 in a note verbale from the Permanent Representation of Spain (see paragraph 24 above).
58. The Court reiterates that in accordance with Article 57 § 1 of the Convention, only laws “then in force” in the territory of a Contracting State can be the subject of a reservation (see Dacosta Silva, cited above, § 37). In this connection, it observes that Basic Law no. 8/1998 was not in force either in 1979, when the reservation was made, or in 1986, the last time the reservation was updated before the applicant’s detention.
59. The Court notes, however, that the relevant parts of Basic Law no. 8/1998 that were applied in the present case (sections 7(9), 9(1), third indent, 13 and 67) were no more than a re-enactment of the provisions of Basic Law no. 12/1985, which was covered by the 1986 update to the reservation (sections 8(8), 10, 14 and 46). Those provisions related, inter alia, to the disciplinary punishments applicable for minor breaches, and more specifically to detention for between one and thirty days at home or within the unit. Basic Law no. 12/1985, as was pointed out in the update to the reservation of which Spain notified the Council of Europe on 28 May 1986, had already reduced the duration of the punishments entailing deprivation of liberty which could be imposed under the former 1945 Code of Military Justice without judicial intervention. For example, the maximum duration of detention for a minor breach had been reduced from two months (see paragraph 19 above) to thirty days. Accordingly, the relevant provisions of the new 1998 law could not be said to have extended the scope of the reservation made in 1979 and updated in 1986 (compare Campbell and Cosans, cited above, § 37, and Schädler-Eberle, cited above, §§ 61 and 73, and contrast Fischer, cited above, § 41). Furthermore, those provisions had the same personal scope as the provisions of the previous laws covered by the reservation, since they were applicable to members of the armed forces (see, by contrast, Dacosta Silva, cited above, §§ 35-36, concerning a subsequent law relating to the specific disciplinary regime of members of the Civil Guard). To the extent that the new legislative provisions were essentially identical to the ones in force at the time of the ratification of the Convention, the Court is bound to accept that the original 1979 reservation was applicable to the relevant provisions of Basic Law no. 8/1998.
60. Furthermore, the Court cannot agree with the applicant’s argument that the delay by the Spanish State between 3 February 1999 (when Basic Law no. 8/1998 came into force) and 23 May 2007 (when the reservation was updated) in giving notice of the formal amendment to the reservation meant that the 1979 reservation was inapplicable or non-existent during that time. As noted by the Spanish Supreme Court, accepting that argument would amount to attributing the same effects to a failure to notify the Council of Europe of an amendment to the law initially covered by the reservation as to a formal withdrawal of the reservation. However, the Court has already had occasion to point out that a reservation made in accordance with Article 57 of the Convention remains valid until it is withdrawn by the respondent State (see Schädler-Eberle, cited above, § 70). This practice is, moreover, consistent with the Vienna Convention on the Law of Treaties (see paragraphs 28 and 29 above), which provides that withdrawal of a reservation must be formulated in writing and is formal in nature.
61. The Court would nevertheless emphasise that formal notification of the Council of Europe where a reservation is amended following a legislative reform by a Contracting State is a factor contributing to legal certainty. The purpose of such notification is to allow the Council of Europe to verify that the subsequent legislative changes introduced by that State do not extend the scope of the initial reservation and that the reservation is valid and compatible with the requirements of Article 57 of the Convention.
The Court reiterates that “precision and clarity” are required from the Contracting States in this area (see Belilos, cited above, § 55).
62. Lastly, the Court must examine the validity of the reservation by Spain in the light of the conditions laid down in Article 57 of the Convention, other than the requirement for the reservation to be made at the time of ratification of the Convention and to concern laws “then in force”.
It notes firstly that the reservation in issue refers to particular provisions of the Convention, namely Articles 5 and 6.
Next, it observes that it has not been alleged by the applicant that the reservation was “of a general character” within the meaning of the second sentence of Article 57 § 1 of the Convention. The reservation indicated sufficiently clearly that it related to the application of Articles 5 and 6 of the Convention to the extent that those provisions were incompatible with the legislative provisions concerning the disciplinary regime of the armed forces. Lastly, as to whether the reservation contained a “brief statement of the law concerned” within the meaning of Article 57 § 2 of the Convention, the Court observes firstly that the initial 1979 reservation included a brief statement of the relevant legislative provisions (see paragraph 18 above), and secondly, that the 1986 update to the reservation specified that Basic Law no. 12/1985 had reduced the duration of the punishments entailing deprivation of liberty that could be imposed without judicial intervention and had increased the guarantees available during the investigation (see paragraph 20 above). Both declarations, together with the 2007 update, explicitly mentioned the specific provisions concerned (parts and chapters of the law). The reservation therefore provided a safeguard against any interpretation which might have unduly extended its scope. Those factors are sufficient for the Court to conclude that the reservation in issue was compatible with Article 57 of the Convention.
63. In the light of the foregoing, the Court considers that, to the extent that the reservation entered by Spain in respect of Articles 5 and 6 of the Convention was applicable to the relevant provisions of Basic Law no. 8/1998, it is not necessary to consider the applicant’s complaint that he was deprived of his liberty on the basis of a decision by his commanding officers without prior judicial intervention.
64. It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4. ...
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in French, and notified in writing on 23 February 2017.
Stephen PhillipsHelena Jäderblom
RegistrarPresident
[1]. For an application of this reservation as amended in the light of the 1985 Basic Law, see Rosa Recuerda v. Spain, no. 16615/90, Commission decision of 2 December 1991, in which the European Commission of Human Rights declared the complaints under Articles 5 and 6 of the Convention incompatible ratione materiae with the provisions of the Convention.
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