FERNANDEZ-MOLINA GONZALEZ and OTHERS v. SPAIN

[TRANSLATION - EXTRACT]

Fernandez-Molina and Others  v. Spain, no. 64359/01, decision of 8 October 2002 (extracts)

THE FACTS

A.Preliminary observation

In May 1981 the applicants along with more than 20,000 others sustained severe food poisoning that caused an illness known as “toxic syndrome” after consuming denatured rapeseed oil. The applicants are represented by Mr Ergec, Mr Docquir, Mr Baro and Mr Gómez de Liaño. .... The facts set out below concern the first applicant. The facts in the cases of the other 369 applicants cases are identical, apart from the claims for compensation, which were made and dealt with individually.

B.The particular circumstances of the case

The facts of the case, as presented by the parties, can be summarised as follows.

On 26 June 1981 a criminal investigation was started into suspected breaches of public-health regulations. All the proceedings concerning the breaches were joined and assigned to the Second Section of the Criminal Division of the Audiencia Nacional, which divided the cases into two separate groups of criminal proceedings, depending on whether or not the defendants were civil servants.

The individual complainants were represented in the proceedings by various associations, including the National Association of Victims of Toxic Syndrome (hereafter “ANASTO-LEGANES””), which was formed on 22 July 1981 with the object of securing full reparation for all damage sustained by victims of toxic syndrome. The first applicant is the president of that association.

1.The proceedings against the private-sector defendants (no. 129/1981)

The proceedings began in 1981 with a criminal complaint by the public prosecutor’s office. A large number of complaints by victims and associations of victims, and the results of various police and judicial inquiries, were added to the investigation file. The investigation concerned individuals and companies from the private sector and public authorities and their servants. However, in a decision of 12 April 1994, the Audiencia Nacional decided to sever the proceedings against the civil servants. It does not appear from the case file that an appeal was lodged against that decision.

In a judgment of 20 May 1989, the Second Section of the Criminal Division of the Audiencia Nacional handed down prison sentences to various defendants for breaches of the public-health regulations, fraud arising out of the sale of denatured rapeseed oil, and professional negligence. In addition to imposing criminal penalties, the Audiencia Nacional held that one of the defendants was liable in damages, while the codefendants and two undertakings implicated in the distribution of the oil incurred secondary liability.

The amounts due in damages by those held liable were assessed as follows:

“(i)to the heirs of each deceased victim: 15,000,000 pesetas;

(ii)to persons whose injuries lasted between 1 and 15 days: 150,000 pesetas;

(iii)to persons whose injuries lasted between 16 and 30 days: 300,000 pesetas;

(iv)to persons whose injuries lasted between 31 and 60 days: 600,000 pesetas;

(v)to persons whose injuries lasted between 61 and 90 days: 900,000 pesetas;

(vi)to persons whose injuries lasted over 90 days, but without disability: 18,000,000 pesetas;

(vii)to persons suffering from permanent disability preventing them from resuming some of their normal duties: 25,000,000 pesetas;

(viii)to persons suffering from permanent disability preventing them from resuming any of their normal duties: 40,000,000 pesetas;

(ix)to persons suffering from permanent disability preventing them from doing any work: 70,000,000 pesetas;

(x)        to persons suffering from serious disability: 90,000,000 pesetas.

The compensation payable to the heirs of the deceased persons listed as victims in Appendix VII shall be assessed in accordance with the classification of the injuries when the judgment is enforced.

(xi)  ... the National Institute of Health: 2,653,076 388 pesetas.”

The Audiencia Nacional added:

“The stated compensation shall be paid to those entitled with annual interest at the statutory rate plus two points accruing from today (20 May 1989) until payment is made in full.”

In the event of any deterioration in the victim’s health, the compensation was to be adjusted depending on the category into which the victim’s injuries ultimately fell.

The defendants who were convicted, the private complainants and the public prosecutor’s office appealed on points of law. In a judgment of 23 April 1992, the Supreme Court upheld the main parts of the impugned judgment and convicted certain defendants of continuing fraud and offences under Articles 346 and 348 of the Criminal Code.

The judgment was not executed, owing to the insolvency of the private individuals and companies who had been ordered to pay damages.

2.The proceedings against the public authorities and their servants (no. 198/1985)

Following the Audiencia Nacional’s decision of 12 April 1994, the central investigating judge no. 3 at the Audiencia Nacional started an investigation in order to determine whether certain public authorities and civil servants had any liability. The public prosecutor’s office and a number of private complainants intervened in the proceedings, which ended on 24 May 1996 with a judgment of the First Section of the Criminal Division of the Audiencia Nacional, which held:

“Those guilty of contaminating the oil have already been tried in proceedings no. 129/81 by the Second Section [of the Criminal Division of the Audiencia Nacional], and the sole purpose of the present proceedings is to establish whether [those responsible for the contamination] were able to commit the offences as a result of negligence on the part of the civil servants concerned..., it being understood that neither the conduct of the persons who have been convicted nor the consequences of that conduct may be re-examined.”

Six defendants accused of causing death by negligence and breaches of public-health regulations were acquitted. The Audiencia Nacional noted that the Supreme Court’s judgment of 23 April 1992 in proceedings no. 129/81 was final. It emphasised that the new proceedings concerned different defendants accused of different offences. All but one of the civil servants was acquitted. He was found guilty of negligently causing personal injury and ordered to pay a fine of 20,000 pesetas (ESP) and compensation to the victims equal to 50% of the amounts specified in the Second Section of the Criminal Division of the Audiencia Nacional’s judgment dated 20 May 1989 in case no. 129/1981, that is to say:

“(i)to the heirs of each deceased victim: 7,500,000 pesetas;

(ii)to persons whose injuries lasted between 1 and 15 days: 75,000 pesetas;

(iii)to persons whose injuries lasted between 16 and 30 days: 150,000 pesetas;

(iv)to persons whose injuries lasted between 31 and 60 days: 300,000 pesetas;

(v)to persons whose injuries lasted between 61 and 90 days: 450,000 pesetas;

(vi)to persons whose injuries lasted over 90 days, but without disability: 9,000,000 pesetas;

(vii)to persons suffering from permanent disability preventing them from resuming some of their normal duties: 12,500,000 pesetas;

(viii)to persons suffering from permanent disability preventing them from resuming any of their normal duties: 20,000,000 pesetas;

(ix)to persons suffering from permanent disability preventing them from doing any work: 35,000,000 pesetas;

(xi)      to persons suffering from serious disability: 45,000,000 pesetas.”

The Second Section added:

“Each victim’s condition will be assessed on the basis of updated information from the case files.

Since H.’s civil liability is less extensive than that of the persons held liable in the judgment of 20 May 1989, he shall not be jointly liable for the additional 50% of compensation which they were ordered to pay in the aforementioned judgment.

We must and do order the State to pay the compensation due by H. in the event of his defaulting, less, if applicable, any amounts previously paid by the authorities by way of compensation, aid or grants to persons who have suffered damage.”

One of the three judges sitting in the Division dissented, arguing that the civil servant concerned should have been acquitted.

Appeals to the Supreme Court were lodged against that judgment. On 26 September 1997, the Supreme Court reversed and quashed part of the Audiencia Nacional’s decision. It overruled the impugned decision on quantum, holding:

“... While there is no real legal basis for the decision to reduce the level of damages, the judgment is also questionable if reference is made to the metalegal notion of social ‘solidarity’, which, in the circumstances of the case, is particularly relevant to the issue of compensation. We are dealing with a national catastrophe (with more than 30,000 casualties, including deaths, disabilities and a whole range of physical injuries) whose financial consequences the State could and should have taken responsibility for by providing the victims with proper compensation, as it has done many times before, for instance following floods or droughts, without waiting for the courts to reach a decision regarding any criminal liability. ... Now more than ever and over and above its legal obligation, the State cannot neglect its moral obligation to pay the victims compensation in the amounts set out in the judgment appealed against, that is to say the whole, not just 50%, of the sums concerned.”

The Supreme Court also ruled that everyone who had suffered from toxic syndrome, whether or not a party to the proceedings, was entitled to compensation at the relevant rate, as the associations of victims were not acting on behalf of their members, but represented the “wider interests” of all the victims, whether or not they were represented.

In a second judgment delivered the same day, the Supreme Court found two of the defendant civil servants guilty of recklessly causing death and injury. It sentenced them to six months’ imprisonment each and held them jointly and severally liable to pay damages at twice the levels ordered by the Audiencia Nacional in its judgment of 24 May 1996, that is to say, the levels set out in the judgment of 20 May 1989. The remaining five civil servants’ acquittals were upheld. The State was ordered, as a civil party with secondary liability, to pay all the sums mentioned, less any amounts it had granted by way of aid, other than amounts for medical, social-security or other similar expenses to which the victims had a statutory entitlement. An order was made on 3 October 1997 for the rectification of that judgment to confirm that the levels of compensation were those set out in the decision of 24 May 1996.

3.The enforcement proceedings

Once the Supreme Court’s judgment had become enforceable, the case was remitted to the First Section of the Audiencia Nacional for execution.

In a decision of 13 March 1998 the Audiencia Nacional laid down the procedure to be followed by individual victims in order to obtain payment of their compensation.

On 14 April 1998 the Audiencia Nacional declared the civil servants who had been found liable in damages insolvent and ordered execution of the Supreme Court’s judgment against the State as the party with secondary civil liability.

On 11 May 1998 it was decided that, with the exception of additional family allowance, special grants and housing benefit, all aid paid by the State to victims of toxic syndrome between the date of the decision to grant such aid and the date the compensation was paid would be deducted from the amount of compensation payable.

On 19 February 1999 the Audiencia Nacional directed that the payment process had begun and informed the victims of toxic syndrome that they could “obtain the standard compensation payment request form and complete related software package to assist them in making their claims from the First Section of the Criminal Division of the Audiencia Nacional”.

The standard form issued by the Audiencia Nacional did not contain a section allowing claims to be made for default interest. Accordingly, ANASTO-LEGANES drafted a document claiming default interest at the official rate from 20 May 1989, the date of the Audiencia Nacional’s judgment in the first set of proceedings, to the date of actual payment. The document was appended to the first request for execution of the judgment (which was submitted by the first applicant) and, relying on the official consumer price index published by the National Institute of Statistical Information, stated that prices had increased by 59,2% since the relevant date.

In a decision of 3 May 1999 the Audiencia Nacional rejected the first applicant’s claim for default interest accrued since the 1989 judgment and assessed his entitlement to compensation at ESP 17,360,000 (after deducting aid received from the State). That amount was to bear interest at the rate prescribed in section 45, taken together with section 36, of the General Finance Act, which lays down that the authorities must pay interest at the statutory rate if they fail to make payment within three months after being served with the relevant judicial decision.

The Audienca Nacional gave the following reasons for its decision:

“... As to the payment of interest, it will be noted that, in the final judgment in the present proceedings, the authority, on account of its secondary civil liability, was ordered to pay unliquidated damages. The sum is unliquidated because, taking the amounts specified in the judgment for each category of person affected [by the food-poisoning] as the starting point, the victims are required to submit for examination any deductible amounts ..., the classification of their injuries and any changes thereto. Accordingly, as has already been pointed out in what are now final decisions in the enforcement proceedings, everyone concerned must set the claims procedure in motion so that the amounts due to him or her can be calculated. ... Consequently, the payment of interest is only conceivable once the quantum has been calculated, that is to say, once the claims procedure has been completed. Since the debtor is a public authority ... it is necessary to apply section 45 of the General Finance Act (GFA), taken together with section 36 of that Act, and not Article 921 of the Code of Civil Procedure. ... Section 45 GFA allows the authority three months in which to make payment, as it provides that if the authority does not pay a creditor of the Treasury within three months after service of the relevant court decision or acknowledgement of the obligation, it is to pay interest at the rate stated in section 36(2) GFA – that is to say, at the statutory rate on the amount due – from the date the creditor makes a written request for performance of the obligation.”

On 11 May 1999 the first applicant renewed his request for default interest in a súplica appeal to the Audiencia Nacional. He argued that the compensation was a liquidated sum, as the Audiencia Nacional had itself established in its judgment of 20 May 1989. As to the date from which default interest was to run, the applicant said that the Constitutional Court had already construed section 45 of the General Finance Act, when read in the light of Article 921 of the Code of Civil Procedure, to mean that the judgment at first instance had to be taken into account.

In a decision of 12 July 1999, the Audiencia Nacional dismissed the súplica appeal and upheld the previous decision in its entirety. It stressed that the first applicant’s case concerned secondary civil liability in the context of the procedure for processing the claims for compensation. On 15 July 1999 the Audiencia Nacional issued an order requiring the authority to pay the sum of ESP 17,360,000.

The first applicant and the applicants whose names appear on the appended list then lodged an amparo appeal with the Constitutional Court, alleging a violation of Articles 14 and 24 § 1 of the Constitution. They said that the manner in which the Audiencia Nacional had applied section 45 of the General Finance Act constituted unjustified discriminatory treatment, as the Constitutional Court had previously held that that provision had to be read in the light of Article 921 of the Code of Civil Procedure. They also insisted that litigants were entitled to have final court decisions executed strictly in accordance with their terms.

The Constitutional Court dismissed the appeals in a series of decisions (its decision in the first applicant’s case being delivered on 4 May 2000), in which it held:

“... There has been no breach of the rule prohibiting discrimination (Article 14 of the Constitution). The [Constitutional Court’s] judgments relied on by the applicant concerned cases in which the court of first instance decided that the authority had an obligation (to pay or to reimburse certain sums); that was not the position in the instance case, as it was not until, firstly, the Audiencia Nacional’s judgment of 24 May 1996 and, subsequently, the Supreme Court’s judgment of 26 September 1997 that it was decided that the authority had secondary liability. Accordingly, to allow interest to run from the date of the Audiencia Nacional’s judgment (20 May 1989) would be tantamount to holding [the authority] responsible for delay in complying with a non-existent obligation.

The right recognised in Article 24 § 1 of the Constitution to the effective protection of the courts has not been infringed either, as the [Audiencia Nacional’s] classification of the compensation as unliquidated is an issue of law that is reserved to the ordinary courts as part of the judicial duties vested exclusively in them by Article 117 § 3 of the Constitution, provided that they do not act arbitrarily, irrationally or in manifest breach of a procedural rule, which they have not done...”

and:

“... The applicant has only raised questions of ordinary law, for which the ordinary courts have exclusive jurisdiction by virtue of Article 117 § 3 of the Constitution (Constitutional Court judgment no. 17/1999 of 22 February 1999), provided they do not act arbitrarily, irrationally or in manifest breach of a procedural rule, which they have not done...”

and further:

“... Firstly, as regards the violation of the right to the effective protection of the courts (Article 24 the Constitution), the applicant has only raised questions of ordinary law, for which the ordinary courts have exclusive jurisdiction by virtue of Article 117 § 3 of the Constitution (Constitutional Court judgment no. 17/1999 of 22 February 1999), provided they do not act arbitrarily, irrationally or in manifest breach of a procedural rule, which they have not done... Secondly, as regards the principle of equality before the law (Article 14 of the Constitution), the Constitutional Court’s judgments relied on by the applicant in support of his allegations relate to cases that cannot in any way be assimilated to the instant case...”

By August 2000 some 5,000 victims of toxic syndrome, that is to say approximately a quarter of those affected, had received compensation. The first applicant is one of them.

C.  The relevant domestic law

1.Rights and freedoms for which an amparo appeal to the Constitutional Court lies

Article 53 § 2 of the Constitution provides, that in order to assert their rights and freedoms under Article 14 and the First Section of Chapter Two of the Constitution, all citizens may make an expedited application to the ordinary courts and, if appropriate, lodge an amparo appeal with the Constitutional Court.

The right of property proclaimed by Article 33 of the Constitution is not one of the rights for which an amparo appeal to the Constitutional Court lies.

2.  Calculation of default interest

Article 921 of the Code of Civil Procedure provides that judgment debts shall bear default interest at the statutory rate plus two points from the day after the judgment was delivered until the debt has been paid in full. Article 921 applies only to liquidated awards. The rule applies to all judicial decisions, although exceptions are made in favour of the Treasury under the General Finance Act.

Sections 36 and 45 of the General Finance Act, which govern State receipts and expenditure, provide that creditors of the State shall only be entitled to default interest at the statutory rate if the authority concerned fails to discharge the relevant obligation within three months after service of the judicial decision imposing it. The sections do not, however, indicate whether the relevant decision for this purpose is the decision of the court of first instance or of the appellate court. Section 45 of the General Finance Act states that the authority has three months in which to pay its debt and that a failure to pay within three months after service of the relevant judicial decision or acknowledgement of debt will entitle the creditor to interest at the rate stated in section 36(2) of the Act, that is to say statutory interest on the amount due from the date of a written request by the creditor for performance of the obligation.

COMPLAINTS

1.  Relying on Article 1 of Protocol No. 1 and Article 14 of the Convention, the applicants maintained that the Audiencia Nacional’s judgment of 20 May 1989 had clearly established with certainty the sums payable to the victims depending on the seriousness of their injuries. In holding in its 1997 judgment that the State had secondary liability for the entire debt, the Supreme Court had expressly referred to the operative provisions of the 1989 judgment, which in turn expressly provided that the compensation awards would bear interest. The applicants added that under the Constitutional Court’s case-law, which had been settled since 1996, financial awards against the State bore interest from the date of the judgment at first instance. They submitted that it was reasonable for them to expect the State to be liable for default interest from 1989, as that was the year in which the debt the State was ordered to pay in 1997 was assessed. They pointed out that, in a departure from its own case-law, the Constitutional Court had not construed section 45 of the General Finance Act as requiring interest payable by the State to be calculated from the date of the decision at first instance; as a result, the applicants had been unjustifiably discriminated against. The State’s failure to pay the interest constituted a breach of their right to the peaceful enjoyment of their possessions.

2.  Relying on Article 6 § 1 of the Convention, the applicants further complained:

(a)  ...

(b)  ...

(c)  that the length of the proceedings, which had lasted almost twenty years – from 26 June 1981 to the respective dates when the Constitutional Court had dismissed the applicants’ amparo appeals .... –, had been unreasonable.

3.  ....

THE LAW

1.  The applicants noted that in its 1997 judgment, in which it held that the State had secondary liability for the entire debt, the Supreme Court had referred to the Audiencia Nacional’s judgment of 20 May 1989, which expressly provided that the sums payable to the victims of the food-poisoning would bear interest. The State had failed to pay them that interest in breach of the Supreme Court’s judgment and had thereby infringed their right to the peaceful enjoyment of their possessions. They also submitted that they had been discriminated against by the Constitutional Court’s departure from its own case-law construing section 45 of the General Finance Act as requiring interest payable by the State to be calculated from the date of the decision at first instance. They relied on Article 1 of Protocol No. 1 and Article 14 of the Convention.

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

...”

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1.  Preliminary objection of a failure to comply with the six-months’ time-limit for lodging the complaint under Article 1 of Protocol No. 1

The Government submitted that the applications should be dismissed, as they had been lodged with the Court outside the six-month time-limit laid down by Article 35 § 1 of the Convention. They pointed out that the right of property protected by Article 33 of the Spanish Constitution was not one of the rights and freedoms in respect of which an amparo appeal to the Constitutional Court lay. Accordingly, the final domestic decision was the Audiencia Nacional’s judgment of 12 July 1999.

The applicants acknowledged that they had relied in their amparo appeals on Articles 14 (prohibition of discrimination) and 24 § 1 (right to a fair trial) of the Constitution, and not Article 33 (right of property), for which amparo relief was not available. However, in their submission, it was self-evident that in seeking to assert their rights to equality and to have court decisions effectively enforced, what they were really asking for was for the compensation they had been awarded for the substantial damage they had sustained as a result of toxic syndrome to be paid in full. Those sums came within the scope of the protection afforded by Article 1 of Protocol No. 1. The amparo appeal was an effective remedy which they had been required to exercise before applying to the Court. To argue otherwise would have meant their being obliged to make two successive applications to the Court: the first within six months of the decision on what appeared to them to be the last effective remedy, and the second within six months of the decision on the last remedy actually used. That would have been unreasonable, as it would have meant producing the same file to the Court twice, as a result of a wholly artificial division of the applications that would have entailed unnecessary additional costs for the applicants. In that connection, the applicants noted that the Convention was intended to provide practical and effective protection to individuals, without unnecessary formalism.

The Court notes that no amparo relief is available in respect of the right of property. Accordingly, the final domestic decision relevant to Article 1 of Protocol No. 1 was the Audiencia Nacional’s decision of 12 July 1999 on the súplica appeal, not the Constitutional Court’s decision on the alleged violation of the fundamental rights and freedoms for which amparo relief was available, namely those set out in Articles 6, 13 and 14 of the Convention. Conversely, an amparo appeal clearly was required before the complaints of procedural fairness and of discrimination contrary to Article 14 – which are at the heart of the applications to the Court – could be referred to the Court. Further, the complaint under Article 14 could only be made in conjunction with other rights guaranteed by the Convention. Requiring the applicants to apply to the Court on two different dates in order to comply with that special feature of domestic law, even though they do not rely solely on Article 1 of Protocol No. 1, would be to construe the six-month time-limit too formally. The Court considers it more in keeping with the spirit and purpose of the Convention to treat the applicants’ complaints together for the purpose of determining when time started to run in the instant case. In that connection, it reiterates that the six-month rule is autonomous and must be construed and applied according to the facts of each individual case, so as to ensure the effective exercise of the right to individual application (Worm v. Austria, application no. 22714/93, Commission decision of 27 November 1995, Decisions and Reports (DR) 83, p. 17). Consequently, the Court finds that the applications were lodged within the six-month period allowed by Article 35 § 1 of the Convention.

2.  Merits of the complaints

(a)  The parties’ submissions

(i)  The Government

The Government said that the criminal proceedings against those accused of adulterating oil in a food-industry fraud that had led to the outbreak of toxic syndrome had commenced in 1981. Central investigating judge no. 2 at the Audiencia Nacional was assigned to investigate the case. 267 other sets of proceedings were started in various Spanish towns for the same offences and joined to the first. However, in an order of 12 April 1984, the Audiencia Nacional decided to sever the proceedings against the civil servants. That decision became final, and was followed by the Audiencia Nacional’s substantive judgment of 20 May 1989 in the criminal proceedings against the sellers of the adulterated oil (proceedings no. 129/1981) and a Supreme Court judgment of 23 April 1992 following an appeal on points of law. The Government added that the case was ultimately struck out of the list when the persons convicted by the Audiencia Nacional proved insolvent.

Only one of the civil servants tried in the criminal proceedings against public authorities and certain civil servants (proceedings no. 198/1985) had been found guilty of an offence. In a judgment of 24 May 1996, he was convicted by the Audiencia Nacional of criminal negligence and ordered to pay a fine and damages to the victims, assessed by reference to the length of time they had been forced to take off work. The Audiencia Nacional had also ruled that the State had secondary civil liability for the payment of the compensation awards. Following an appeal on points of law by the parties to the proceedings, the Supreme Court had reversed and quashed the Audiencia Nacional’s decision in a judgment of 26 September 1997. In a second judgment delivered on the same day, it had doubled the Audiencia Nacional’s awards, thus bringing the amounts in line with those awarded by the latter in proceedings no. 129/1981.

After the two convicted civil servants were found to be insolvent, the Audiencia Nacional, in a decision of 14 April 1998, had ordered the State to comply with the Supreme Court’s judgment by virtue of its secondary civil liability. The Government emphasised that it had been difficult to comply with the order, owing in particular to the large number of victims entitled to compensation. They observed that on the grounds of “social solidarity”, the Supreme Court had held, in a decision of 26 September 1997 that broke new ground in Spanish legal history, that all toxic-syndrome victims, whether or not parties to the proceedings, were entitled to compensation at the relevant rate, as the associations of victims were not acting on behalf of their members, but represented the “wider interests” of all the victims, whether or not they were represented. The total number of those concerned was approximately 20,000.

The Government said that in order to comply with the Supreme Court’s judgment it had been necessary to allow time for all the victims to lodge their claims, the examination of applications for the reclassification of injuries, the victims to be split into groups, any sums advanced by the authority to be deducted from the compensation payable at the scale rate and a standard claim form to be prepared.

They noted that, after deduction of the sums he had been paid in advance, the first applicant had received compensation of ESP 17,360,000, that is to say 104,335.70 euros (EUR). He had sought default interest on that amount from 20 May 1989, that being the date of the Audiencia Nacional’s judgment in the first set of proceedings (no. 129/1981). That claim had been dismissed by the Audiencia Nacional in a decision that had been upheld by the Constitutional Court on 4 May 2000.

The Government said that under Spanish law default interest was only payable once the pecuniary obligation had become due. In the instant case, the binding legal obligation had arisen out of the Supreme Court’s judgment of 26 September 1997. It was that judgment that had allowed all the food-poisoning victims, whether or not parties to the proceedings, to make their claims for compensation by appearing before the Audiencia Nacional using the standard form. Thus, the State’s liability had not in fact arisen until the aforementioned judgment of the Supreme Court, as supplemented by the Audiencia Nacional’s decision of 14 April 1998 declaring the two convicted civil servants insolvent.

The Audiencia Nacional’s judgment of 20 May 1989 did not in any way concern the State, as no allegation of secondary liability had been made against the State in criminal proceedings no. 129/1981. That judgment had not touched on any possible liability of the State, which had not been accused of any misconduct and had not even been a party to the proceedings. In the final analysis, the State had therefore had no obligation in 1989 to the victims of the food-poisoning.

In 1997 the Supreme Court had set the levels of compensation at twice the amounts fixed by the Audiencia Nacional in proceedings no. 198/1985, thereby reverting to those set out in the 1989 judgment (subject to the deduction of any sums advanced by the State). Accordingly, the State had no liability for default interest in 1989. The Government also submitted that the Audiencia Nacional’s judgment of 24 May 1996, which the Supreme Court had reversed and quashed on 26 September 1997, could not constitute a valid legal basis for an obligation to pay default interest from 1996 onwards.

The Government’s final comments on the aid granted by the State to the victims of the food-poisoning

Lastly, the Government drew the Court’s attention to the scale of the measures the Spanish Government had adopted in favour of the victims of the food-poisoning immediately after the outbreak of toxic syndrome in 1981. Thus, in August 1981 victims had been granted the right to free medication. In September of that year, the authorities decided to cover their medical expenses. The State also granted financial aid to the families of deceased victims. A programme of psychological and psychiatric support was set up. On 19 October 1981 the Government decreed a series of temporary measures designed to help victims with pensions, unemployment, funeral expenses, medical care, rehabilitation and help in the home. A special medical insurance card was created in October 1981 to facilitate access to medical care with a minimum of bureaucracy. In June 1982 families that had been affected by the food-poisoning were granted an additional family allowance guaranteeing them a minimum income.

While unable to quantify the cost of the measures taken to provide medical care and medication, the Government were able to say that the financial aid provided by the State had come to ESP 108,594,000,000 (approximately EUR 652,000,000).

(ii)  The applicants

The applicants pointed out that the criminal proceedings against both the civil servants and the oil manufacturers had been issued at the same time (1981) and the complaints joined in proceedings before central investigating judge no. 2. It was the Audiencia Nacional – in a 1985 decision on appeals against the order declaring the investigation at an end – which had directed that the criminal liability of the civil servants and public authorities should be investigated and, if necessary, dealt with in separate proceedings.

The civil servants had subsequently been found jointly and severally liable with the oil manufacturers for compensation at the rates set out in the 1989 judgment in proceedings no. 129/1981. In its judgment of 23 April 1992 in the same proceedings, the Supreme Court directed that the compensation payable by the oil manufacturers would bear default interest from that date at the statutory rate in force plus two points.

As regards proceedings no. 198/1985 against the civil servants and public authorities, the applicants noted that the Supreme Court’s judgment of 26 September 1997, which reversed and quashed the Audiencia Nacional’s judgment of 24 May 1996, was far more favourable to the victims than the Audiencia Nacional’s judgment, as it rendered the State liable for 100% of the amounts awarded in 1989. They pointed out in that connection that the compensation awarded by the Supreme Court in 1997 was identical to that awarded in the 1989 judgment. Furthermore, the Supreme Court had reversed and quashed the judgment of the court of first instance and found in favour of the claimants. Its decision replaced all or part of the judgment appealed against with retrospective effect from the date of that judgment.

The court with jurisdiction to enforce the Supreme Court’s final judgment of 26 September 1997 was the Audiencia Nacional, as the court that had heard the merits of the case. No appeal lay to the Supreme Court for matters arising out of the execution process. The standard computerised form which the Audiencia Nacional had required all applicants to use to request payment in accordance with the Supreme Court’s judgment did not provide any means of claiming interest. The claims for interest made by the victims in an appended document were rejected by the Audiencia Nacional on the ground that they were unliquidated, so that the relevant provisions of the Code of Criminal Procedure were inapplicable. The applicants said that the execution process had not got under way until February 1999, even though the Supreme Court had delivered its judgment in September 1997. Most of the victims had chosen not to request a review of the original medical assessment of their damage as established in the 1989 judgment. The State had therefore been aware since 1989 of the amounts payable.

The applicants observed that the Audiencia Nacional’s judgment of 20 May 1989 (in proceedings no. 129/1981) had expressly ordered the payment of interest in accordance with Article 921 of the Code of Civil Procedure and recognised that the debts were liquidated. The Audiencia Nacional in its judgment of 24 May 1996 in proceedings no. 198/1985 and the Supreme Court in its judgment of 26 September 1997 had made orders for damages equal to those awarded in 1989. In that connection, the deductions referred to in the Supreme Court’s last judgment, which was still in the process of being enforced, were straightforward arithmetical calculations. They did not alter the fact that the debts were liquidated, as indeed had been recognised by the Social Division of the Supreme Court in a judgment of 14 May 1985 (RJ 1985/2709) and by the Supreme Court in other judgments on appeals by representatives of victims of toxic syndrome.

The applicants submitted that the Government were wrong to describe the interest claimed as default interest, since Articles 1100 and 1108 of the Civil Code provided that default interest was interest that had accrued at the statutory annual rate in force from the date the creditor had first sought to obtain payment through the courts. Conversely, the expression “default interest” used by the applicants in the proceedings before the Court had a different meaning to its accepted meaning in Spanish law and referred instead to interest payable for delays in effective compliance with a decision. Payment of “default interest” as understood by the Government had not been requested by the victims in any of the domestic judicial proceedings.

The interest claimed, which in domestic law was termed “statutory interest”, was defined by section 921(4) of the Civil Procedure Act (Law no. 34/198 of 6 August 1984), which has since been repealed. That provision laid down: “When the decision is accompanied by an order to pay a liquidated sum, the sum shall bear annual interest at the statutory rate in force plus two points from the date of the decision at first instance”. It was interest of that type that the Audiencia Nacional had awarded in its judgment of 20 May 1989. Accordingly, the applicants could not agree with the Government’s classification of the interest claimed.

The applicants submitted that, in those circumstances, the situation as a result of the Supreme Court’s judgment of 26 September 1997 was that two civil servants had been held to have primary liability jointly and severally with the defendants against whom the Audiencia Nacional had already found in its judgment of 20 May 1989, while a further party, the State, was held to have secondary civil liability, which consequently had to be regarded as being joint and several with those same defendants. Under Spanish law, the State’s joint and several secondary liability covered the obligations of all the defendants who had been held liable in the judgment of 20 May 1989. The State was thus required to pay the same amounts (compensation plus interest) in the same manner and from the same point in time as the defendants who had been held liable in 1989. The applicants said that the Spanish courts had clearly stated that a person could be held jointly and severally liable with defendants in proceedings to which they were not a party, without their defence rights being in any way infringed. Relying on that case-law, the applicants submitted that the oil manufacturers’ liability under the judgment of 20 May 1989 extended to the two civil servants convicted by the Supreme Court on 26 September 1997 and to the State, by virtue of its secondary liability, with effect from the date of the 1989 decision. That decision provided not just for the payment of compensation, but also for statutory interest from that date. It was the settled case-law of the Spanish courts that, provided that the order stipulated the liquidated sum payable by the defendants, statutory interest was due automatically, by operation of law, from the date the order for damages was made, irrespective of whether or not the interest concerned had been requested by the party or was expressly awarded in the judgment.

The applicants’ observations on the Government’s final comments on the aid provided by the State to the victims of the food-poisoning

The applicants said that from the moment the decree of 19 October 1981 allowing economic aid to be given to the victims of toxic syndrome was published, the Government had regarded the aid as mere advance payments that would be deductible from any compensation which the State might be ordered to pay by the courts. In addition, all aid – apart from that intended to provide support, such as additional family allowance and a grants for a home help – was to cease once the victims had received compensation pursuant to a final court decision, less any advance payments made by the State.

(b)The Court’s assessment

The Court notes that the facts of the present case were examined in two separate sets of criminal proceedings. The first (no. 129/1981) involved the prosecution in the Audiencia Nacional of the private-sector defendants responsible for adulterating the oil that had caused the food-poisoning; it ended on 20 May 1989 with a judgment of that court, the main provisions of which were upheld by the Supreme Court on 23 April 1992 following an appeal on points of law. Some of the defendants were given prison sentences for breaches of public-health regulations and the fraudulent sale of adulterated rapeseed oil. They were also held civilly liable for the damage caused and ordered to pay compensation to the victims of the food-poisoning. However, the judgments could not be executed as the defendants proved insolvent, with the result that the victims did not receive the compensation.

The second set of proceedings was commenced by central investigating judge no. 3 at the Audiencia Nacional against civil servants who by their professional negligence had allowed or failed to prevent the commission of the offences, thereby causing death and personal injury. In its judgment of 24 May 1996 the Audiencia Nacional acquitted all the civil servants but one, who was found guilty of criminal negligence and ordered to pay a fine of ESP 20,000 and compensation to the victims equal to 50% of the amounts fixed by the Audiencia Nacional in its judgment of 20 May 1989 in the first set of proceedings. On appeal, the Supreme Court reversed and quashed the Audiencia Nacional’s judgment on 26 September 1997 and, in a separate judgment delivered the same day, found two of the civil servants guilty of recklessly causing death and injury. They received prison sentences and were held jointly and severally liable for the payment of twice the level of compensation that had been awarded in the judgment of 24 May 1996. The Supreme Court also held that the State had secondary civil liability for the payment of all the sums mentioned, after deduction of the amounts it had granted by way of aid.

The reason for there being two separate sets of proceedings was the Audiencia Nacional’s order of 12 April 1984 severing the proceedings against the civil servants from the main proceedings. Since that decision was not appealed against, it became final.

In its capacity as the court responsible for executing the Supreme Court’s judgment of 26 September 1997, the Audiencia Nacional declared that the civil servants who had been ordered to pay damages were insolvent and ordered execution against the State on account of its secondary civil liability. During the process of execution of the Supreme Court’s judgment, the applicants sought payment of accrued default interest at the official rate on the compensation award from 20 May 1989, the date of the Audiencia Nacional’s judgment in the first set of proceedings. On 3 May 1999 the Audiencia Nacional rejected the first applicant’s calculation and assessed the compensation due; the assessed sum was to bear statutory default interest if the compensation was not paid within three months after service of the decision. The Audiencia Nacional upheld that decision on 12 July 1999 following a súplica appeal by the first applicant. A number of amparo appeals were made to the Constitutional Court, which, in a series of decisions including its decision of 4 May 2000 in the first applicant’s case, ruled that the Audiencia Nacional’s construction of the legislation did not conflict with the provisions relied on by the appellants (Articles 14 and 24 § 1 of the Constitution). It found that the State’s liability arose out of the Audiencia Nacional’s judgment of 24 May 1996 and the Supreme Court’s judgment of 26 December 1997, in which the State was held to have secondary liability for payment of compensation to the victims of the food-poisoning.

The legal issues which the parties have raised in the Court are essentially (a) whether the Spanish courts’ refusal to grant the applicants’ claim to a right to default interest from 20 May 1989 (the date of the Audiencia Nacional’s judgment) can be regarded as a breach of their right to the peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1 and (b) whether they have been discriminated against, contrary to Article 14 of the Convention. The Court is not called upon to examine the quantum of the substantive awards, but solely the date from which the default interest to which the applicants are entitled is to be calculated.

The Court reiterates that a claim cannot qualify as a “possession” within the meaning of Article 1 of Protocol No. 1 unless it has been recognised and determined by a judicial decision having final effect. That is the condition for determining whether a claim may be regarded as definite and enforceable and so entitled to the protection of Article 1 of Protocol No. 1 (Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B).

In that connection, the Court notes that the applicants’ right to compensation from the State as the party with secondary civil liability for the damage sustained as a result of the food-poisoning was definitely and finally established by the Supreme Court’s judgment of 26 September 1997, which reversed and quashed the Audiencia Nacional’s judgment of 24 May 1996.

It was in that judgment that the Supreme Court, acting as a final court of appeal, established the basis for assessing the amounts payable to the deceased victims’ heirs and the surviving victims, with the latter receiving compensation calculated on the basis of the length and degree of their incapacity as a result of the food-poisoning. Thus, throughout the period their actions were pending in the domestic courts, the applicants had no right to compensation, merely the possibility of obtaining such a right.

The applicants have argued that the two separate sets of proceedings against those responsible for the food-poisoning were closely linked and interdependent as regards payment of the compensation awarded by the courts. However, no support for that contention is to be found in the domestic courts’ decisions. On the contrary, the Court observes that, in its judgment of 24 May 1996, the Audiencia Nacional noted that the persons responsible for adulterating the oil had already been tried by the Second Section in proceedings no. 129/81 and that the purpose of the new proceedings was different, the sole issue being whether any civil servants had been guilty of negligent misconduct amounting to a criminal offence. The Audiencia Nacional emphasised that the Supreme Court’s judgment in the first set of proceedings was final and that neither the conduct of the persons who had already been convicted, nor the outcome of those proceedings, could be re-examined in the second set of proceedings. In its judgment of 26 September 1997, the Supreme Court made an order for damages against the two civil servants who had been found guilty and held that the State had secondary liability to pay twice the level of compensation that had been awarded in the judgment of 24 May 1996. However, it made no reference to the interest mentioned in the decision of 20 May 1989. Subsequently, following an application for rectification, it confirmed that the victims were to receive compensation in the amounts indicated in the decision of 24 May 1996, but did not say anything about interest for late payment. Incidentally, if there had been no other proceedings than those which ended with the Audiencia Nacional’s judgment of 20 May 1989, the applicants would have received no compensation, as the State was not found to have any civil liability, whether direct or secondary, in those proceedings.

The Court considers that the right to compensation concerned, which was recognised by the Supreme Court, may constitute an asset and therefore amount to a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1 (Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, § 31). It notes, however, that the entitlement to compensation had to be calculated in the enforcement proceedings before the Audiencia Nacional.

On that point, the Court observes that the Constitutional Court has construed section 45 of the General Finance Act as affording a right to interest on sums payable by the State from the date of the decision at first instance, as laid down by Article 921 of the Code of Civil Procedure. However, according to the domestic courts and under the relevant domestic legislation, any right to the payment of interest for late payment for failure to pay the compensation within three months after the judicial decision could only arise once the amounts payable by the State had been calculated. According to the domestic courts that heard the dispute, the State’s liability did not arise until, firstly, the Audiencia Nacional’s judgment of 24 May 1996 and, subsequently, the Supreme Court’s judgment of 26 September 1997. Under the domestic legislation, the amount of compensation awarded in the decisions on the merits was to be individually assessed during the subsequent execution phase in which each victim was required to make an individual claim for payment specifying any sums already received from the State by way of aid so that they could be deducted from the total amount payable and indicating his or her condition to enable the court to determine into which category the claim fell, as the level of compensation depended on the damage sustained. In the first applicant’s case, the execution proceedings ended with the Audiencia Nacional’s decision of 3 May 1999. The Court considers that applying the domestic legislation in that way was reasonable and not in any way discriminatory.

Admittedly, the applicants might have chosen to ask the Audiencia Nacional to top up the final award with statutory interest from 26 September 1997 (the date of the Supreme Court’s judgment). However, that was not the issue before the domestic courts and it has not been raised in the applications to this Court.

Ultimately, the Court agrees with the Constitutional Court that ordering interest to run from the Audiencia Nacional’s judgment of 20 May 1989 in the first set of proceedings – to which the State was not a party and in which it was not ordered to pay damages – would be tantamount to holding the authority responsible for delays in the performance of a non-existent obligation. As to whether the compensation award was liquidated, that is an issue of validity that is within the sole discretion of the domestic courts and cannot, in itself, constitute an infringement of the applicants’ right to the peaceful enjoyment of their possessions. The Court points out in that connection that it is not its task to take the place of the national courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, mutatis mutandis, Bulut v. Austria, judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 356, § 29; Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports 1997-VIII, p. 2955, § 31; and Edificaciones March Gallego S.A. v. Spain, judgment of 19 February 1998, Reports 1998-I, p. 290, § 33). In the absence of arbitrariness, the Court cannot substitute its own assessment of the facts and the law for that of the domestic courts. As emphasised above, the domestic courts’ interpretation of the applicable legislation in the instant case appears reasonable and, a fortiori, devoid of arbitrariness.

In the light of the foregoing, the Court considers that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  Relying on Article 6 § 1 of the Convention, the applicants also complained, in substance, that the Audiencia Nacional’s decisions were unfair and of the lack of reasoning in the Constitutional Court’s decision. They also considered that the length of the proceedings had been unreasonable.

The relevant part of Article 6 § 1 provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

(i)Applicability of Article 6 § 1 of the Convention

As regards the applicants’ complaints under Article 6 of the Convention, the Court refers to its judgment in Immobiliare Saffi v. Italy cited above, on which the applicants had relied. It observes that the enforcement proceedings in the present case were intended to resolve the dispute between the applicants and the State, that is to say to calculate individually the amounts of compensation that had been awarded in the substantive proceedings. The Court reiterated in paragraph 63 of the Immobiliare Saffi judgment that the right to a court would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 510, § 40). Article 6 § 1 is therefore applicable in the case.

(ii)  The complaints concerning the fairness of the proceedings

....

(iii)The complaint concerning the length of the proceedings

The Government said that the right to a fair trial within a reasonable time was protected by Spanish law. It was possible to have the substance of the grievance remedied by sending a complaint to the relevant court and, if that did not secure satisfaction, lodging an amparo appeal with the Constitutional Court. Alternatively, once the proceedings were over, the aggrieved party could apply for compensation under sections 292 et seq. of the Judicature Act. The Convention institutions had on repeated occasions accepted that those were effective remedies.

The Government said that in the instant case the complaint concerning the length of the proceedings had not been raised, either expressly or in substance, in any of the domestic appeals lodged by the applicants. Consequently, that complaint had to be dismissed for failure to exhaust domestic remedies.

The applicants contended that the remedies afforded by sections 292 et seq. of the Judicature Act were ineffective and impractical, since it was possible to obtain reparation in the self-same proceedings that were unreasonably long. They observed, however, that in their amparo appeal in the present case, they had relied on Article 24 of the Constitution, which guarantees the right to the protection of the courts within a reasonable time.

The Court notes that the proceedings lasted from April 1984 to 26 September 1997. Thereafter, the enforcement proceedings began. The final amparo appeal was dismissed on 25 April 2001. However, the Court notes that the applicants did not raise this complaint, either expressly or in substance, before the domestic courts responsible for the alleged delays, or before the Constitutional Court in their amparo appeal. The Court observes that, in the Spanish legal system, anyone who considers that excessive delays are being incurred in proceedings to which they are a party can, if they have unsuccessfully complained to the court dealing with their case, lodge an amparo appeal with the Constitutional Court under Article 24 § 2 of the Constitution. In the instant case, the question of the length of the proceedings was only raised by the applicants before the Court. The fact that in their amparo appeal to the Constitutional Court they relied in a general way on Article 24 of the Constitution, without adducing evidence in support of the complaint concerning the length of the proceedings, does not, under the case-law of the Convention institutions, suffice to show that, at least in substance, they have referred the complaint to the domestic court.

The Court further notes that, under sections 292 et seq. of the Judicature Act, a claim for compensation for malfunctioning of the judicial system can be submitted to the Ministry of Justice, once the proceedings have been concluded. It notes that, under the case-law of the administrative courts on this subject (Gonzalez Marín v. Spain (dec.) no. 39521/98, ECHR 1999-VII), unreasonable delays in proceedings are assimilated to malfunctioning of the judicial system. The Court observes, moreover, that an appeal lies to the administrative courts against the Minister’s decision. It consequently considers that this is a sufficiently accessible and effective remedy for litigants and accordingly one that should have been used in the present case.

In these circumstances, the Court finds that, owing to their failure to make use of the procedures available under domestic law to seek reparation, the applicants have not exhausted domestic remedies relating to their length-of-proceedings complaint, as they were required to do by Article 35 of the Convention.

....

For these reasons, the Court, unanimously,

Declares the applications inadmissible.

Michael O’BoyleNicolas Bratza,
RegistrarPresident

Full & Egal Universal Law Academy