COSTA I ROSSELLÓ v. SPAIN

FIFTH SECTION

DECISION

Application no. 28054/24
Josep COSTA I ROSSELLÓ
against Spain

The European Court of Human Rights (Fifth Section), sitting on 3 April 2025 as a Committee composed of:

 Gilberto Felici, President,
 María Elósegui,
 Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 28054/24) 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 20 September 2024 by a Spanish national, Mr Josep Costa i Rosselló (“the applicant”), who was born in 1976 and lives in Sant Adrià De Besòs;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the detention of the applicant within the course of criminal proceedings initiated against him for having allegedly disobeyed decisions of the Constitutional Court in his capacity as a vice-president of the Bureau of the Parliament of Catalonia. The context has been set out in detail in the Court’s decision in the case of Costa i Rosselló and Others v. Spain (dec.), nos. 29780/20 and 3 others, §§ 8-81, 11 February 2025.

2.  On 15 September 2021, during the pre-trial stage of the proceedings, the applicant was summoned with his co-defendants to appear before the investigating judge in order to provide their statements as persons under investigation.

3.  On the designated date his lawyer appeared before the judge and informed the court that the applicant did not recognise its legitimacy, that he considered that he was protected by parliamentary immunity from prosecution, that he wanted to exercise his fundamental right not to give a statement, and that he would not appear before the judge. The applicant also made a public statement on social media asserting that he did not want “to establish a dialogue with repressive judges and prosecutors who do not have a basic understanding of the separation of powers” and that he “would never recognise the authority of the High Court of Justice of Catalonia” to judge any parliamentary decision.

4.  On the next day, the investigating judge ordered that a separate investigation with regards to the applicant’s personal situation be initiated. The popular accusing party (acusación popular) requested the applicant’s arrest. The public prosecutor’s office opposed the arrest but submitted that, since it was mandatory under the Criminal Procedure Act that the individuals under investigation should appear before the investigating judge, the applicant should be summoned again with an express warning of the mandatory nature of the appearance.

5.  On 13 October 2021 the investigating judge gave a decision rejecting the idea of summoning the applicant again, given that in the light of the applicant’s own public statements as well as those given by his lawyer he had consciously and voluntarily decided not to abide by any summons. The decision reiterated that the applicant had the right to appear voluntarily and to give a statement if he wanted to, but that the judge also had the power to compel him to appear if it became necessary under the applicable law.

6.  The applicant requested a clarification of the judge’s decision on the ground that it did not mention the legal basis for opening a separate investigation into his situation. That request was dismissed on 23 September 2021, when the judge reiterated the legal provisions cited in the summons in respect of the applicant (sections 487 and 763 of the Criminal Procedure Act) and held that the applicant was merely trying to delay the proceedings. The applicant then requested another clarification of whether the decision of 13 October 2021 implied that he was going to be arrested. That request was dismissed.

7.  On 25 October 2021 the investigating judge ordered that the applicant be arrested so that he could be brought before the court to give his statement as a person under investigation for the offence of disobedience. The judge noted that under sections 487 and 775 of the Criminal Procedure Act and the relevant constitutional case-law the applicant was under an obligation to appear before the court. He further observed that the applicant had been summoned and had not appeared without having provided any justification; moreover, he had demonstrated his intention not to appear.

8.  The applicant was arrested on 27 October 2021, at 10.25 a.m. At 10.51 a.m. all the parties to the proceedings were given notice of the detention order.

9.  The applicant immediately requested the initiation of habeas corpus proceedings before the duty judge. He was informed of his legal rights and was provided with the documents to make his habeas corpus application, which were signed at 11.15 a.m. on the same day. The habeas corpus application was examined by a duty judge, who dismissed the request to initiate such proceedings at around 1.25 p.m., on the grounds that there was a valid and lawful judicial decision ordering his arrest, and that it had already been set that he would be brought before the investigating judge by 2.30 p.m. that day.

10.  The applicant was brought before the investigating judge. The applicant made oral submissions seeking the recusal of the judge, but his request was dismissed on the ground that he had to submit the recusal request in writing. He was informed of his rights and the reasons why he was being investigated. He chose to represent himself, asked to be immediately released, and refused to give any statement as a person under investigation.

11.  The applicant was released immediately after his appearance before the investigating judge, shortly after 2.30 p.m.

12.  On 4 November 2021 the applicant lodged an appeal against the detention order, which he claimed had been illegal and had violated his parliamentary immunity from prosecution, as well as his right to a tribunal established by law, his personal liberty, freedom of movement and right to fair proceedings on the ground, among others, that there had been a lack of sufficient reasons to order his arrest. He reiterated his submissions seeking the recusal of the investigating judge. The public prosecutor’s office argued that the appeal had been submitted out of time and, in the alternative, that the applicant’s arrest had been in accordance with the law and proportionate in the circumstances of the case. The appeal and the recusal request were dismissed by the investigating judge on 23 November 2021. The applicant lodged an appeal against the dismissal decision.

13.  On 25 November 2021 the applicant lodged a motion seeking that the refusal to initiate the habeas corpus procedure be quashed (see paragraph 9 above). The public prosecutor’s office opposed the motion, which was dismissed by the investigating judge on 31 January 2022.

14.  On 26 November 2021 the applicant lodged a criminal complaint against the investigating judge alleging malfeasance (prevaricación), unlawful detention, violation of parliamentary immunity and the offence of restricting someone in the exercise of their civic rights committed by a civil servant, on the grounds of the alleged unlawfulness of his arrest and detention and the rejection of his recusal requests in respect of the judges who had declared the criminal complaint against him admissible, including the investigating judge herself (see, in this regard, Costa i Rosselló and Others (dec.), cited above, §§ 63 – 73).

15.  On 11 January 2022, the High Court of Justice of Catalonia dismissed the applicant’s appeal against the decision of 25 October 2021 ordering his arrest (see paragraph 7 above) and against the decision from 23 November 2021 which had dismissed his first appeal against the same decision (see paragraph 12 above). That court held that it was mandatory that persons under investigation appear before the investigating judge during the pre-trial stage in criminal proceedings and that, if the person refuses to do so, his or her detention is provided for by the applicable legal framework. It concluded that his temporary detention to ensure his appearance before the investigating judge had been lawful and justified in the circumstances of the case.

16.  The applicant lodged an amparo appeal with the Constitutional Court, complaining of a violation of his rights to liberty and freedom of movement, his right to exercise his political functions and his right to fair proceedings, taken together with his right not to be discriminated against based on his political ideas or for exercising his freedom of thought, freedom of expression or freedom of assembly. He essentially complained about his detention, which he contended had been unlawful, unnecessary and disproportionate, but he also reiterated that he had had parliamentary immunity from prosecution, which should have been respected, and that the very fact that criminal proceedings had been initiated against him violated his relevant fundamental rights. The applicant also sought the recusal, for the second time, of eight of the ten judges of the Constitutional Court who were hearing his case, namely the ones who had been part of the Constitutional Court on 11 February 2020, when it had given notice to the public prosecutor’s office in case that office saw fit to pursue legal action against the President of the Catalan Parliament and the members of the Bureau (including himself) for their disobedience of the previous injunctions of the Constitutional Court (see Costa i Rosselló and Others, cited above, §§ 44 and 54).

17.  The recusal request was dismissed by the Constitutional Court on 27 April 2023. The applicant lodged further appeals against the dismissal of his request for the recusal of judges of the Constitutional Court, to no avail.

18.  On 20 May 2024, the Constitutional Court declared the applicant’s amparo appeal inadmissible, owing to the lack of constitutional relevance of the alleged violations. The applicant was given notice of that decision on the same day.

19.  The pre-trial stage of the criminal proceedings against the applicant was finished on 10 November 2022. The trial took place from 5 to 7 October 2022. On 15 November 2022, the High Court of Justice of Catalonia acquitted all the defendants, including the applicant, on the grounds that it could not be established that they had committed the crime of disobedience (see, for further details, Costa i Rosselló and Others, cited above, §§ 74-81).

20.  The applicant complains under Article 5 of the Convention about his allegedly illegal detention. In particular, he submits that he enjoyed parliamentary immunity from prosecution. He further claims that, given that the offence with which he was charged was not punishable by imprisonment, it had been disproportionate to deprive him of his freedom merely to obtain his appearance before the investigating judge, all the more so given that he had been represented by a lawyer who had appeared in person to explain his absence. He also complains under Article 2 of Protocol No. 4 (freedom of movement) and under Article 6 regarding the detention order.

21.  Additionally, the applicant reiterates the same complaints under Articles 6, 10, 11, 13 and 14 of the Convention and Article 3 Protocol No. 1 and Article 1 of Protocol No 12, as well as Article 18 which were declared inadmissible by the Court in Costa i Rosselló and Others (dec.), cited above.

THE COURT’S ASSESSMENT

22.  The Court observes that the applicant’s detention between 10.25 a.m. and shortly after 2.30 p.m. on 27 October 2021 constituted a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. The Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivations of liberty of a very short length (see, among many authorities, M.A. v. Cyprus, no. 41872/10, § 190, ECHR 2013).

23.   In the present case, the Court observes that the applicant’s detention was ordered in the context of criminal proceedings, based on his alleged failure to comply with an order to appear before a judge as a person under investigation. Appearing before a judge when thus summoned was an obligation prescribed under domestic law, which also provided for the possibility to detain the persons concerned in case of a failure to comply. In such circumstances, both paragraphs 1(b) and 1(c) of Article 5 of the Convention may be relevant. The permissible grounds for deprivation of liberty provided for under Article 5 § 1 of the Convention may overlap; a detention may, depending on the circumstances, be justified under more than one sub-paragraph (see Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 126, 4 December 2018). The Court observes that the order of detention of 25 October 2021 specifically referred to the applicant’s failure to appear before the judge, that being a legal obligation under the domestic law and case-law (see paragraph 7 above). It therefore finds it appropriate, in the particular circumstances of the present case, to examine in the first place whether the applicant’s detention was justified under the second limb of Article 5 § 1 (b) of the Convention (compare to Rozhkov v. Russia (no. 2), no. 38898/04, §§ 89-93), 31 January 2017).

24.  Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of that law (see Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 125, 1 June 2021). In this regard, the Court stresses that it is essential that the domestic law define clearly the conditions for detention and that the law be foreseeable in its application (see Creangă v. Romania [GC], no. 29226/03, § 101, 23 February 2012).

25.  Detention may be authorised under the second limb of Article 5 § 1 (b) in order to “secure the fulfilment of any obligation prescribed by law”. This concerns cases where the law permits the detention of a person to compel him or her to fulfil a specific and concrete obligation already incumbent on him or her, and which he or she has, until then, failed to satisfy (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, §§ 79‑80, 22 October 2018, and Ostendorf v. Germany, no. 15598/08, § 69, 7 March 2013, with further references).

26.  In order to be covered by Article 5 § 1 (b), an arrest and detention must also be aimed at or directly contribute to securing the fulfilment of that obligation and not be punitive in character. A further requirement is that the nature of the obligation within the meaning of Article 5 § 1 (b) whose fulfilment is sought must itself be compatible with the Convention. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist.

27.  Finally, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty. The nature of the obligation arising from the relevant legislation, including its underlying object and purpose, the person being detained and the particular circumstances leading to the detention, as well as its duration, are relevant factors in striking such a balance (see S., V. and A. v. Denmark, cited above, §§ 80‑82, with further references).

28.  In addition to being in conformity with domestic law, Article 5 § 1 requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among other authorities, Rooman v. Belgium [GC], no. 18052/11, § 190, 31 January 2019, and Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 129, 1 June 2021). Detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities or where the authorities neglected to apply the relevant legislation correctly (see S., V. and A. v. Denmark, cited above, § 76, with further references). For arbitrariness to be excluded, conformity with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 is required in respect of both the ordering and the execution of the measures involving deprivation of liberty.

29.  In the context of sub-paragraph (b) of Article 5 § 1 of the Convention, the Court has affirmed that the notion of arbitrariness also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see S., V. and A. v. Denmark, cited above, § 77; Saadi, cited above, § 70; and Denis and Irvine, cited above, § 130).

30.  Turning to the facts of the case, the Court notes that the applicant was arrested and detained for a few hours in order to secure compliance with the order of the investigating judge summoning him to appear, following the applicant’s categorical refusal. The detention order of 25 October 2021 expressly referred to the applicant’s obligation under domestic law to appear before the investigating judge within the framework of the ongoing criminal investigation against him (see paragraph 7 above). More specifically, under the Spanish criminal procedural legislation, a person charged with a punishable act shall be summoned in order to be heard by the investigating judge, and, if he or she fails to appear or to justify a legitimate reason preventing him or her from doing so, the summons may be converted into an order of detention. The detention order therefore had a basis in domestic law.

31.  Regarding the applicant’s argument that he had been protected by parliamentary immunity from prosecution, which is relevant to the assessment of the detention’s lawfulness, the Court recalls that in its decision Costa i Rosselló and Others, cited above, it observed that the domestic courts had provided ample reasoning for their conclusion that the applicant’s actions under investigation had not been protected by parliamentary immunity from prosecution. In particular, the Constitutional Court reiterated its doctrine according to which the admission for processing of parliamentary motions with a view to adopting resolutions that were contrary to previous rulings of the Constitutional Court was not protected by that prerogative (ibid., § 58). On that basis, the High Court of Justice of Catalonia had expressly rejected the applicant’s arguments concerning his alleged parliamentary immunity from prosecution, providing ample reasoning (ibid., § 76). In light of the above, the Court is satisfied that the applicant was not protected by parliamentary immunity from prosecution in respect of the acts under investigation and that therefore, his detention was not unlawful or unforeseeable in that regard.

32.  The applicant’s detention was ordered with the purpose of bringing him before the investigating judge, so that he could be duly informed of the reasons for the investigation and so that the investigating stage of the proceedings followed against him could be concluded and the proceedings could move on to the trial stage. The Court is satisfied that the applicant was released as soon as the relevant obligation to appear before the investigating judge had been fulfilled. He was detained for about four hours.

33.  Concerning the necessity of the measure, the Court observes that the applicant’s detention was ordered as a measure of last resort, following the applicant’s public declarations of refusal to comply with his obligation to appear before the investigating judge. Also, the investigating judge explained in her decision the reasons why less severe measures, despite having been considered (see paragraphs 4-5 above) were found to be insufficient in the circumstances of the case, in light of the applicant’s open refusal to appear.

34.  The Court notes, in addition, that the applicant was able to lodge a habeas corpus application which was duly examined. The detention order was reviewed by the investigating judge, the High Court of Justice of Catalonia and the Constitutional Court, all of which referred to the applicable legal framework and delivered sufficiently reasoned decisions elaborating on the necessity of the measure and its proportionate nature under the given circumstances. The applicant has not submitted convincing arguments about any arbitrariness in the actions of the authorities.

35.  In the light of the foregoing, the Court does not consider that the applicant has substantiated his allegations that his detention was unlawful or otherwise not justified under Article 5 § 1(b) of the Convention. In these circumstances it is unnecessary to examine whether it was justified not only under that provision but also under paragraph 1(c) of Article 5.

36.  The foregoing considerations are sufficient for the Court to conclude that the complaint under Article 5 § 1 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

37.  The applicant’s remaining complaints have already been declared inadmissible as being manifestly ill-founded in the Court’s decision in the case of Costa i Rosselló and Others (cited above, §§ 119-50 and 154-58).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 May 2025.

 Martina Keller Gilberto Felici
 Deputy Registrar President