The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention),
Having regard to the judgments of the European Court of Human
Rights in the Barberà, Messegué and Jabardo case delivered on
6 December 1988 and on 13 June 1994 and transmitted the same days
to the Committee of Ministers;
Recalling that the case originated in three applications
against Spain lodged with the European Commission of Human Rights
on 22 July 1983 under Article 25 (art. 25) of the Convention by
Mr Francesc-Xavier Barberà, Mr Antonino Messegué and
Mr Ferràn Jabardo, all Spanish nationals, and that the Commission
declared admissible their complaints that they had not received a
fair trial before an independent and impartial tribunal;
Recalling that the case was brought before the Court by the
Commission on 12 December 1986 and by the Government of Spain
on 29 January 1987;
Whereas in its judgment of 6 December 1988 the Court:
- rejected unanimously, on the ground of estoppel and because
it was raised out of time, the government's objection that domestic
remedies had not been exhausted in respect of the complaint
concerning the change of membership of the Audiencia Nacional
without notice;
- held unanimously that the applicants had not exhausted
domestic remedies in respect of their complaints concerning the
substitute presiding judge of the Audiencia Nacional;
- rejected unanimously, on the ground of estoppel and, in
part, because it was raised out of time and was unfounded, the
government's objection that domestic remedies had not been
exhausted in that the applicants did not apply to the Audiencia
Nacional for an adjournment of the trial;
- rejected by seventeen votes to one, as unfounded, the
remainder of the government's objection that domestic remedies had
not been exhausted;
- held by ten votes to eight that there had been a breach of
Article 6, paragraph 1 (art. 6-1);
- held unanimously that there had been no breach of Article 6,
paragraph 2 (art. 6-2);
- held unanimously that the question of the application of
Article 50 (art. 50) was not ready for decision;
Whereas in its judgment of 13 June 1994 the Court:
- held by thirteen votes to three that the respondent state
was to pay, within three months, for damage, 8 000 000 pesetas to
Mr Barberà, 8 000 000 pesetas to Mr Messegué and 4 000 000 pesetas
to Mr Jabardo;
- held unanimously that the respondent state was to pay,
within three months, for costs and expenses, 4 500 000 pesetas to
the three applicants jointly, less 5 876 French francs already
received from the Council of Europe;
- dismissed unanimously the remainder of the claim for just
satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of the
Convention;
Having invited the Government of Spain to inform it of the
measures which had been taken in consequence of the judgments
of 6 December 1988 and 13 June 1994, having regard to Spain's
obligation under Article 53 (art. 53) of the Convention to abide by
them;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of Spain gave the Committee
information about the measures taken in consequence of the
judgments, which information appears in the appendix to this
resolution;
Having satisfied itself that the Government of Spain paid the
applicants, within the time-limit set, the sums provided for in the
judgment of 13 June 1994,
Declares, after having taken note of the information supplied
by the Government of Spain, that it has exercised its functions
under Article 54 (art. 54) of the Convention in this case.
Appendix to Resolution DH (94) 84
Information provided by the Government of Spain
during the examination of the Barberà, Messegué and Jabardo case
by the Committee of Ministers
In a judgment of 16 December 1991, the Constitutional Court
ordered the reopening of the proceedings before the Audiencia
Nacional in the applicants' case. By judgment of 30 October 1993,
the Audiencia Nacional acquitted the applicants as there was not
sufficient evidence against them. The details of the domestic
proceedings are exposed in paragraphs 4 and 5 of the Court's
judgment of 13 June 1994.
The problems of a general nature raised by the Court in its
judgment of 6 December 1988 have been resolved by legislative
changes and by the development of the case-law of the
Constitutional Court and the Supreme Court.
The organic law relating to the judicial power
(of 1 July 1985, No. 6/1985) has improved the system for the
protection of fundamental rights. This law has introduced the
possibility of cassation on the ground that a constitutional right
has been infringed (Article 5) as well as the possibility to
request the annulment of judicial acts which violate the principle
of fair hearing, the right to be assisted by counsel or the rights
of the defence to the extent that these violations have unduly
deprived the accused of his means of defence (Articles 238-243).
This enactment also contains new rules regarding the substitution
of judges (Articles 207-216).
Two other organic laws (of 25 May 1988, Nos. 3 and 4/1988)
have reformed the Criminal Code and the Code of Criminal Procedure
by abrogating the previous Act of 24 December 1984 concerning the
actions of armed bands and terrorist elements. In the context of
criminal proceedings engaged to repress the crimes defined by the
new legislation, the judge may only extend the time of arrest by
forty-eight hours, instead of by seven days as was previously
authorised. Total isolation of the person detained may not
prejudice the rights of the defence (Article 520 bis of the
Code of Criminal Procedure).
The habeas corpus procedure has been regulated by an organic
law (of 24 May 1984, No. 6/1984) so as to require that any person
who claims to have been illegally detained has immediate access to
a judge.
The Code of Criminal Procedure has been reformed by another
organic law (of 28 December 1988, No. 7/1988) which has clearly
separated the judicial function of investigation from that of
judgment, hereby bringing Spanish law into line with the case-law
of the European Court of Human Rights. The new law has also
increased the role of the prosecution during the investigation
phase (Article 781) and has established a second criminal
jurisdiction competent to deal with cases involving crimes carrying
a maximum sentence of six years imprisonment (Articles 795.2,
3 and 8).
The recent case-law of the Constitutional Court and of the
Supreme Court requires constantly the strict observance of the
rights of the accused, in particular with regard to the principle
of accusatorial procedure, the equality of arms (adversary
hearings), publicity, the presumption of innocence and the rights
of the defence. The application of these guarantees is guided by
the case-law of the European Court of Human Rights since the
Convention, as interpreted by the European Court, is directly
applicable in Spain, and the judgments of the European Court are
also important sources of inspiration for the interpretation of the
fundamental rights protected by the Spanish Constitution (see the
judgments of the Constitutional Court of 27 September and
21 December 1989 and of 14 October 1990, and the judgments of the
Supreme Court of 11 March and 19 July 1988, of 19 January and
30 June 1989 and of 14 September 1990).
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