FIFTH SECTION
DECISION
Application no. 29801/23
Federico TRILLO-FIGUEROA MARTÍNEZ-CONDE
against Spain
The European Court of Human Rights (Fifth Section), sitting on 4 July 2024 as a Committee composed of:
Mārtiņš Mits, President,
María Elósegui,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 29801/23) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 July 2023 by a Spanish national, Mr Federico Trillo-Figueroa Martínez-Conde, who was born in 1952 and lives in Madrid (“the applicant”);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged lack of impartiality of some of the Constitutional Court judges who took part in the consideration of an action of unconstitutionality (recurso de inconstitucionalidad) lodged by the applicant.
2. The applicant is a former member of Parliament (MP). On 1 June 2010 seventy-one members of Parliament (MPs), including the applicant, lodged an action before the Constitutional Court challenging the compatibility with the Constitution of some provisions of Institutional Law 2/2010, of 3 March, on sexual and reproductive health and voluntary termination of pregnancy.
3. On 27 January 2023 the applicant and four other MPs who had lodged the action requested the recusal of four judges of the Constitutional Court. They alleged that those judges had previously participated in some stages of the adoption of the contested law in their various former capacities. This situation would produce grounds for withdrawal or recusal under Article 219 of Institutional Law no. 6/1985, of 1 July, on the Judiciary. On 30 January 2023 they further asked the four judges to withdraw from participating in those proceedings.
4. On 30 June 2023 one of those judges asked to be absolved from sitting in the case. She alleged that she had performed consultative functions in the proceedings for the adoption of the contested law in her former capacity as member of the General Council of the Judiciary. On 7 February 2023 the Plenary of the Constitutional Court rejected her request. The applicant appealed against this decision, but the Plenary of the Constitutional Court declared the appeal inadmissible, stating that neither the Institutional Law on the Constitutional Court nor the Institutional Law on the Judiciary provided any appeals against a decision rejecting the withdrawal of a judge, the parties being able to request the recusal, if deemed appropriate.
5. On 8 February 2023 the Plenary of the Constitutional Court declared inadmissible the applicant’s request for recusal. It stated that Article 162 of the Constitution and Article 32 of the Institutional Law on the Constitutional Court granted standing in unconstitutionality proceedings to a minimum of fifty MPs (deputies – diputados – or senators) acting jointly. The five former MPs that had lodged the request for recusal were thus not individually entitled to submit any claims connected to the constitutional proceedings.
6. The applicant appealed against this decision, alleging that he was entitled to represent the group of MPs that had lodged the action of unconstitutionality. On 18 April 2023 the Plenary of the Constitutional Court dismissed the appeal. It reiterated that the request for recusal had been lodged on behalf of five persons rather than a group of MPs and that those five persons were not considered a party to the constitutional proceedings. It reiterated that the standing was not granted to each MP individually but to “a part of a constitutional body [requiring a minimum number of MPs] as a guarantee of the relevance of the action, which is not [based on] the perspective of the individuals, but [on] their high political qualifications resulting from their constitutional role”.
7. On 9 May 2023 the Constitutional Court, sitting in plenary, dismissed the action of unconstitutionality, further stating that one of the contested provisions had already been modified by subsequent laws.
THE COURT’S ASSESSMENT
8. Relying on Article 6 § 1, the applicant alleged a violation of the right to a fair trial, on account of the lack of impartiality of the four Constitutional Court’s judges in question and of the unreasonable motivation of the Constitutional Court’s decisions concerning their withdrawal and recusal.
9. The Court observes, firstly, that the application has been lodged by the applicant claiming to act on behalf of a “collective body of 71 members of Parliament who acted in the unconstitutionality proceedings”. However, those persons have neither been identified in the application form nor provided a power of attorney in favour of the applicant or another legal representative. The applicant submitted a power of attorney authorising him in general terms to represent 145 MPs in constitutional proceedings, but there is no information in the case file to confirm whether the group of 71 MPs who lodged the action of unconstitutionality was also part of that group of 145 MPs. Be it as it may, the Court considers that it is not warranted to examine the locus standi before the Court of the “collective body” that the applicant refers to and claims to represent, because the application is in any event inadmissible for the following reasons.
10. The Court reiterates that for Article 6 § 1 in its civil limb to be applicable, there must be a “dispute” (“contestation” in French) regarding a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018, with further references, and Grzęda v. Poland [GC], no. 43572/18, § 257, 15 March 2022, with further references). The right must be a “civil” right (see Grzęda, ibid.).
11. The fact that the proceedings have taken place before a constitutional court does not suffice to remove them from the ambit of Article 6 § 1 of the Convention. It must be ascertained whether the proceedings before the Constitutional Court in the instant case did or did not relate to the “determination” of the applicant’s “civil rights and obligations” or of a “criminal charge” against him (see Paksas v. Lithuania [GC], no. 34932/04, § 65, ECHR 2011 (extracts)).
12. The present case did not have any criminal context. As regards the civil aspect, the Court observes that the action of unconstitutionality was aimed at determining the compatibility with the Constitution of some legal provisions of a recently adopted law, without referring to any individual situations of interpretation or application of the relevant law. According to Article 162 of the Spanish Constitution and Article 32 of the Institutional Law on the Constitutional Court, standing to bring an action of unconstitutionality is granted to the President of the Government, the Ombudsperson, fifty Deputies, fifty Senators, and the executive collegiate bodies and the Assemblies of the Autonomous Communities. As noted by the Constitutional Court (see paragraph 6 above), when lodging an action of unconstitutionality, the relevant persons are not intent on protecting their individual rights or interests, but a general interest, namely, the compatibility of the laws adopted by the Parliament with the Constitution.
13. The applicant did in no way argue that the contested law affected his rights and freedoms or that a decision declaring the law in question unconstitutional would affect him personally or any of the other MPs who participated in the constitutional proceedings (see, a contrario, Voggenreiter v. Germany, no. 47169/99, §§ 30-45, ECHR 2004-I (extracts)).
14. In these circumstances, the Court finds that the constitutional proceedings at issue did not involve a dispute regarding a civil right of the applicant, either as a private individual or as an MP (see, a contrario, Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262, and Forcadell i Lluis and Others, no. 75147/17, § 19, 7 May 2019).
15. The Court thus concludes that Article 6 § 1 of the Convention is not applicable in the case.
16. It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 August 2024.
Martina Keller Mārtiņš Mits
Deputy Registrar President