THIRD SECTION

CASE OF DEL RIO PRADA v. SPAIN

(Application no. 42750/09)

JUDGMENT

STRASBOURG
10 July 2012

THIS CASE WAS REFERRED TO THE GRAND CHAMBER

WHICH DELIVERED JUDGMENT IN THE CASE ON
21/10/2013
This judgment may be subject to editorial revision.

DEL RIO PRADA v. SPAIN JUDGMENT

In the case of Del Rio Prada v. Spain,

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Josep Casadevall, President,
Corneliu Brsan,
Alvina Gyulumyan,
Egbert Myjer,
Jn ikuta,
Luis Lpez Guerra,
Nona Tsotsoria, judges,
and also Santiago Quesada, Section Registrar,
After having deliberated in private on 26 June 2012,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 42750/09) 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) by a Spanish national, Ms Ins Del Rio Prada (the
applicant), on 3 August 2009.
2. The applicant was represented by Mr D. Rouget and Mr I. Aramendia,
lawyers practising in Saint-Jean-de-Luz and Pamplona respectively. The
Spanish Government (the Government) were represented by their Agent,
Mr I. Blasco Lozano, Head of the Legal Department for Human Rights at
the Ministry of Justice.
3. The applicant alleged in particular that her continued detention from 3
July 2008 was neither lawful nor in accordance with a procedure
prescribed by law as required by Article 5 1 of the Convention. Relying
on Article 7, she complained about the retroactive application of new caselaw introduced by the Supreme Court after her conviction, which effectively
increased her sentence by almost nine years.
4. On 19 November 2009, the President of the Third Section decided to
communicate the application to the Government. It was also decided to rule
on the admissibility and merits of the application at the same time
(Article 29 1).

DEL RIO PRADA v. SPAIN JUDGMENT

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1958. She is serving a prison sentence in
the region of Murcia (Spain).
6. In eight sets of criminal proceedings before the Audiencia Nacional,
the applicant was sentenced as follows:
- In judgment 77/1988 of 18 December 1988: for being a member of a
terrorist organisation, to eight years imprisonment; for illegal possession of
weapons, to seven years imprisonment; for possession of explosives, to
eight years imprisonment; for forgery, to four years imprisonment; for
using forged identity documents, to six months imprisonment.
- In judgment 8/1989 of 27 January 1989: for damage to property, in
conjunction with six counts of grievous bodily harm, one of causing bodily
harm and nine of causing minor injuries, to sixteen years imprisonment.
- In judgment 43/1989 of 22 April 1989: as a key accomplice in a fatal
attack and for murder, to twenty-nine years imprisonment.
- In judgment 54/1989 of 7 November 1989, as a key accomplice in a
fatal attack, to thirty years imprisonment; for eleven murders, to twentynine years for each murder; for seventy-eight attempted murders, to twentyfour years on each count; for damage to property, to eleven years
imprisonment. The court ordered that in application of Article 70 2 of the
Criminal Code of 1973 the maximum duration of the sentence to be served
(condena) should be thirty years.
- In judgment 58/1989 of 25 November 1989: as a key accomplice in a
fatal attack and in two murders, to twenty-nine years imprisonment in
respect of each charge. In keeping with Article 70 2 of the Criminal Code
of 1973, the court ordered that the maximum duration of the sentence to be
served (condena) should be thirty years.
- In judgment 75/1990 of 10 December 1990: for a fatal attack, to thirty
years imprisonment; for four murders, to thirty years imprisonment on
each count; for eleven attempted murders, to twenty years imprisonment on
each count; on the charge of terrorism, to eight years imprisonment. The
judgment indicated that in respect of the custodial sentences the maximum
sentence provided for in Article 70 2 of the Criminal Code of 1973 should
be taken into account.
- In judgment 29/1995 of 18 April 1995: for a fatal attack, to twenty-nine
years imprisonment; for murder, to twenty-nine years imprisonment. The
court again referred to the maximum term of imprisonment provided for in
Article 70 of the Criminal Code.
- In judgment 24/2000 of 8 May 2000: for an attack combined with
attempted murder, to thirty years imprisonment; for murder, to twenty-nine
years imprisonment; for seventeen attempted murders, to twenty-four

DEL RIO PRADA v. SPAIN JUDGMENT

years imprisonment on each count; and for damage to property, to eleven

years imprisonment. The judgment noted that the sentence served should
not exceed the maximum term provided for in Article 70 2 of the Criminal
Code of 1973. In order to determine which criminal law was applicable (the
Criminal Code of 1973, which was applicable at the material time, or the
later Criminal Code of 1995), the Audiencia Nacional considered that the
more lenient law was the 1973 Criminal Code, because of the maximum
term of sentence provided for in its Article 70 2, in conjunction with its
Article 100 (reduction of sentence for work done).
7. In all, the terms of imprisonment to which the applicant was
sentenced amounted to over 3,000 years.
8. The applicant was held in preventive detention from 6 July 1987 to 13
February 1989. On 14 February 1989 she began to serve her sentence after
conviction.
9. By a decision of 30 November 2000 the Audiencia Nacional notified
the applicant that the legal and chronological links between the crimes of
which she had been convicted made it possible to group them together as
provided for in Article 988 of the Code of Criminal Procedure in
conjunction with Article 70 2 of the 1973 Criminal Code, which had been
in force when the offences were committed. The Audiencia Nacional
combined all the applicants prison sentences together and fixed the total
term of imprisonment to be served at 30 years.
10. By a decision of 15 February 2001, the Audiencia Nacional fixed the
date on which the applicant would have fully discharged her sentence
(liquidacin de condena) at 27 June 2017.
11. On 24 April 2008 the authorities at the prison where the applicant
was serving her sentence decided that, taking into account the 3282 days
remission to which she was entitled for the work she had done since 1987,
she should be released on 2 July 2008.
12. On 19 May 2008 the Audiencia Nacional asked the prison authorities
to review the date of the applicants release in the light of new precedent set
by the Supreme Court in its judgment 197/06 of 28 February 2006, of which
the Audiencia Nacional cited the relevant parts (see Relevant domestic law
and practice, below), which stated, inter alia:
Thus, the execution of the total sentence to be served [condena] shall proceed as
follows: it shall begin with the heaviest sentences pronounced. The relevant benefits
and remissions shall be applied to each of the sentences being served. When the first
sentence has been served, the second sentence shall begin and so on, until the limits
provided for in Article 70 2 of the Criminal Code of 1973 have been reached. At
such time, all of the sentences comprised in the total sentence to be served [condena]
shall have been extinguished.

13. The Audiencia Nacional explained that this new case-law applied
only to those people convicted under the Criminal Code of 1973 to whom

DEL RIO PRADA v. SPAIN JUDGMENT

Article 70 2 had been applied. As that was the applicants case, the date of
her release would be changed accordingly.
14. The applicant lodged an appeal (splica). She argued, inter alia, that
the application of the Supreme Courts judgment was in breach of the
principle of non-retroactivity of criminal law provisions less favourable to
the accused. In her case the reduction of sentence for work done would now
be calculated for each individual sentence and not for the total sentence to
be served and up to the maximum limit of 30 years. This new method of
calculation would in effect increase the term of imprisonment actually
served by the applicant by almost nine years.
15. By an order of 23 June 2008 the Audiencia Nacional set the date for
the applicants release at 27 June 2017.
16. The applicant appealed against that decision.
17. By a decision of 10 July 2008 the Audiencia Nacional rejected the
appeal and noted that it was not a matter of limits on prison sentences, but
rather of how to apply reductions of sentence in order to determine the date
of the prisoners release. Such reductions were to be calculated in relation to
each sentence individually. Concerning the principle of non-retroactivity,
the Audiencia Nacional considered that it had not been breached because
the criminal law applied in this case had been in force at the time of its
application.
18. Relying on Articles 14 (prohibition of discrimination), 17 (right to
liberty), 24 (right to effective legal protection) and 25 (principle of legality)
of the Constitution, the applicant lodged an amparo appeal with the
Constitutional Court. By a decision of 17 February 2009, the Constitutional
Court declared the appeal inadmissible on the grounds that the applicant had
not demonstrated the constitutional relevance of her complaints.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
19. The relevant provisions of the Constitution read as follows:
Article 14
All Spaniards are equal before the law and may not in any way be discriminated
against on account of birth, race, sex, religion, opinion or any other personal or social
condition or circumstance.
Article 17
1. Every person has the right to liberty and security. No one may be deprived of
his or her freedom except in accordance with the provisions of this Article and in the
cases and in the manner prescribed by law.

...

DEL RIO PRADA v. SPAIN JUDGMENT

Article 24
1. All persons have the right to obtain the effective protection of the judges and the
courts in the exercise of their rights and legitimate interests, and in no case may there
be a lack of defence.
2. Likewise, all persons have the right of access to the ordinary judge predetermined
by law; to the defence and assistance of a lawyer; to be informed of the charges
brought against them; to a public trial without undue delays and with full guarantees;
to the use of evidence appropriate to their defence; not to make self-incriminating
statements; not to declare themselves guilty; and to be presumed innocent. ...
Article 25
1. No one may be convicted or sentenced for any act or omission which at the time
it was committed did not constitute a criminal offence, misdemeanour or
administrative offence under the law in force at that time.

...
B. The situation under the Criminal Code of 1973
20. The relevant provisions of the Criminal Code of 1973, as in force at
the material time, read as follows:
Article 70
When all or some of the sentences imposed ... cannot be served simultaneously by
a convict, the following rules shall apply:
1. In imposing the term to be served, the order followed shall be that of the severity
of the respective sentences, which the convict shall serve consecutively if possible,
going on to the next sentence when the previous one has been served or extinguished
by pardon ...
2. Notwithstanding the previous rule, the maximum term to be served (condena) by
a convict shall not exceed triple the time imposed for the most serious of the penalties
incurred, the others being declared extinguished once those already imposed cover
that maximum, which may not exceed thirty years.
The above limitation shall be applied even where the penalties have been imposed in
different proceedings, if the facts, because they are connected, could have been tried
as a single case.
Article 100
Once his judgment or conviction has become final, any person serving a custodial
or prison sentence may be granted a remission of sentence in exchange for work done.
In serving the sentence imposed ... the detainee is entitled to one days remission for
every two days worked, and the time thus deducted is taken into account when
granting release on licence.
The following persons shall not be entitled to remission for work done:
1. Detainees who escape or attempt to escape, even if they do not succeed.
2. Detainees who repeatedly misbehave while serving their sentence.

DEL RIO PRADA v. SPAIN JUDGMENT

21. The relevant provision of the Code of Criminal Procedure in force at

the material time reads a follows:
Article 988
... When a person found guilty of several criminal offences is convicted, in
different sets of proceedings, of offences that could have been tried in a single case, in
accordance with Article 17 of the Code, the judge or court which pronounced the last
judgment of conviction shall, of its own motion or at the request of the public
prosecutor or the convicted person, fix the maximum term to be served in respect of
the sentences pronounced, in keeping with Article 70 2 of the Criminal Code ...

22. The relevant section of the 1981 Prison Rules (no. 1201/1981)
explained as follows how to calculate the term of imprisonment (three
quarters of the sentence pronounced) to be served in order for the detainee
to be eligible for release on licence:
Article 59
In calculating three quarters of the sentence, the following rules shall apply:
(a) The part of the sentence to be served (condena) which is subject to pardon for
the purposes of release on licence shall be deducted from the total penalty
pronounced, as if that penalty has been replaced by a lesser one.
(b) The same rule shall apply to prison benefits entailing a reduction of the sentence
to be served (condena).
(c) When a person is sentenced to two or more custodial sentences, the sum of those
sentences, for the purposes of release on licence, shall be considered as a single
sentence to be served (condena). ...

C. The situation following the entry into force of the Criminal Code
of 1995
23. The new Criminal Code of 1995 did away with the reduction of
sentences in consideration of the work done in prison. However, those
prisoners whose conviction was pronounced on the basis of the Criminal
Code of 1973 even after the entry into force of the new Code continued
to be eligible for reductions of sentence for work done. As to the maximum
length of prison sentences and the application of reductions to the time
served, the Criminal Code of 1995 was amended by institutional law 7/2003
on measures for the full and effective execution of sentences. The relevant
parts of the Criminal Code thus amended read as follows:
Article 75 Order in which sentences are served
When some or all of the penalties for the different offences cannot be served
concurrently, they shall be served consecutively, in descending order of severity, as
far as possible.

DEL RIO PRADA v. SPAIN JUDGMENT

Article 76 Maximum legal term of imprisonment to be served

1. Notwithstanding what is set forth in the preceding Article, the maximum
duration of the sentence to be served (condena) by a convict shall not exceed triple the
time imposed for the most serious of the penalties incurred, the others being declared
extinguished once those already imposed cover that maximum, which may not exceed
twenty years. Exceptionally, the maximum limit shall be:
(a) Twenty-five years when an individual has been found guilty of two or more
crimes and one of them is punishable by law with a prison sentence of up to twenty
years;
(b) Thirty years when a convict has been found guilty of two or more crimes and
one of them is punishable by law with a prison sentence exceeding twenty years;
(c) Forty years when a convict has been found guilty of two or more crimes and at
least two of them are punishable by law with a prison sentence exceeding twenty
years;
(d) Forty years when a convict has been found guilty of two or more crimes ... of
terrorism ... and any of them is punishable by law with a prison sentence exceeding
twenty years.
2. The above limitation shall be applied even where the penalties have been imposed
in different proceedings, if the facts, because they are connected or because of when
they were committed, could have been tried as a single case.
Article 78 Prison benefits and calculation of time to be served prior to release on
licence in respect of all the penalties incurred
1. If, as a result of the limitations established in section 1 of Article 76, the
sentence to be served is less than half the aggregate of all the sentences imposed, the
sentencing judge or court may order that prison benefits, day-release permits, prerelease classification and the calculation of the time remaining to be served prior to
release on licence be determined with reference to all of the sentences pronounced.
2. Such a decision shall be mandatory in the cases referred to in paragraphs (a), (b),
(c) and (d) of section 1 of Article 76 of this Code, provided that the sentence to be
served is less than half the aggregate of all the sentences imposed. ...

D. The case-law of the Supreme Court

24. In an order of 25 May 1990, the Supreme Court considered that the
combining of sentences in application of Article 70 2 of the Criminal
Code of 1973 and Article 988 of the Code of Criminal Procedure concerned
not the execution but the fixing of the sentence, and that its application
was accordingly a matter for the convicting judge, not the judge responsible
for the execution of sentences (Juzgados de Vigilancia Penitenciaria).
25. In a judgment of 8 March 1994 (529/1994) the Supreme Court
affirmed that the maximum term of imprisonment (thirty years) provided for
in Article 70 2 of the Criminal Code of 1973 was just like a new sentence
resulting from but independent of the others to which prison benefits
provided for by law, such as release on licence and remission of sentence,
applied (point 5 of the reasoning). The Supreme Court referred to Article

DEL RIO PRADA v. SPAIN JUDGMENT

59 of the Prison Rules of 1981, according to which the combining of two

custodial sentences into one was considered as a new sentence for the
purposes of the application of release on licence.
26. That approach continued to be adopted after the entry into force of
the Criminal Code of 1995 as regards the legal maximum term to be served
under Article 76 thereof (see paragraph 23 above). In its judgment
1003/2005, of 15 September 2005, the Supreme Court affirmed that this
limit is just like a new sentence resulting from but independent of the
others to which prison benefits provided by law, such as release on
licence, day release and pre-release classification apply (point 6 of the
reasoning). A similar approach was followed in the judgment of 14 October
2005 (1223/2005), in which the Supreme Court, in the same terms,
reiterated that the maximum term of imprisonment to be served is just like
a new sentence resulting from but independent of the others to which
prison benefits provided for by law, such as release on licence must be
applied, subject to the exceptions provided for in Article 78 of the Criminal
Code of 1995 (point 1 of the reasoning).
27. The Supreme Court departed from this case-law, however, in
judgment 197/2006, of 28 February 2006, in which it established what is
known as the Parot doctrine. The Supreme Court held that reductions of
prisoners sentences should be applied to each sentence individually, not to
the maximum sentence of thirty years imprisonment provided for in Article
70 2 of the Criminal Code of 1973. The relevant parts of the Supreme
Courts reasoning read as follows:
... a joint interpretation of rules one and two of Article 70 of the Criminal Code of
1973 leads us to consider that the thirty-year maximum term does not become a new
sentence, distinct from those successively imposed on the convict, or another sentence
resulting from all the previous ones, but is the maximum term of imprisonment a
prisoner should serve. The reasons that lead us to this interpretation are: (a) first, from
a purely literal point of view, the Criminal Code by no means considers the maximum
term of thirty years as a new sentence to which any reductions to which the prisoner is
entitled should apply, quite simply because it says no such thing; (b) on the contrary,
the penalty (pena) and the resulting term of imprisonment to be served (condena) are
two different things; the wording used in the Criminal Code refers to the resulting
limit as the maximum term to be served (condena), establishing the different
lengths of that maximum term to be served (condena) in relation to each of the
respective sentences imposed, and calculated in two different ways, by taking the
different sentences in order of gravity, in accordance with the first rule, until one of
the two maximum limits provided for is attained (three times the length of the heaviest
sentence pronounced or, in any event, no more than thirty years); (c) this
interpretation is also suggested by the wording of the Code, since after completing the
successive sentences as mentioned, the prisoner will stop discharging [that is,
serving] the remaining ones [in the prescribed order] as soon as the sentences already
served reach the requisite maximum length, which may on no account exceed thirty
years ... (e) and from a teleological point of view, it would not be logical, simply
because of the aggregation of sentences, for a copious criminal record to be reduced to
a single new sentence of thirty years, with the effect that an individual who has
committed a single offence is treated, without justification, in the same way as

DEL RIO PRADA v. SPAIN JUDGMENT

someone convicted of multiple offences, as is the case here. Indeed, there is no logic
in applying this rule in such a way that committing one murder is punished in the
same way as committing two hundred murders; (f) were application for a pardon to be
made, it could not apply to the resulting total term to be served (condena), but rather
to one, several or all of the different sentences imposed; in such a case it is for the
court that pronounced the sentence to decide, and not the judicial body responsible for
applying the limit (the last one), which shows that the sentences are different; and in
any event, the first rule of Article 70 of the Criminal Code of 1973 states how, in such
a case, to verify the successive completion of the sentences when the previous ones
have been extinguished by pardon; (g) and to conclude this reasoning, from a
procedural point of view Article 988 of the Code of Criminal Procedure clearly states
that it is a matter of fixing the maximum limit of the sentences pronounced (in the
plural, in keeping with the wording of the law), in order to determine the maximum
length of these sentences (the wording is very clear).
Which is why the term aggregate of the sentences to be served [condenas] is very
misleading and inappropriate. The sentences are not merged into one, but the serving
of multiple sentences is limited by law to a certain maximum term. Consequently, the
prisoner serves the different sentences, with their respective specificities and with all
the benefits to which he is entitled. That being so, for the extinction of the sentences
successively served, the reduction of sentences for work done may be applied in
conformity with Article 100 of the Criminal Code of 1973.
Thus, the method for the discharge of the total term to be served [condena] is as
follows: it begins with the heaviest sentences imposed. The relevant benefits and
remissions are applied to each of the sentences the prisoner is serving. When the first
[sentence] has been served, the prisoner begins to serve the next one and so on, until
the limits provided for in Article 70 2 of the Criminal Code of 1973 have been
reached. At this stage, all of the sentences comprised in the total term to be served
[condena] will have been extinguished.
For example, in the case of an individual given three prison sentences, 30 years, 15
years and 10 years. The second rule of Article 70 of the Criminal Code of 1973 ...
limits the actual term to be served to three times the most serious sentence or a
maximum of 30 years imprisonment. In this case, it would be the maximum term of
thirty years. The successive serving of the sentences (the total term to be served)
begins with the first sentence, which is the longest one (30 years in this case). If [the
prisoner] were granted a ten-year remission for whatever reason, he would have
served that sentence after 20 years imprisonment, and the sentence would be
extinguished; next, [the prisoner] would start to serve the next longest sentence (15
years), and with a remission of 5 years that sentence will have been served after 10
years. 20 + 10 = 30. [The prisoner] would not have to serve any other sentence, any
remaining sentences being extinguished, as provided for in the applicable Criminal
Code, once those already imposed cover that maximum, which may not exceed thirty
years.

28. In that judgment the Supreme Court considered that there was no
well-established case-law on the specific question of the interpretation of
Article 100 of the Criminal Code of 1973 in relation to Article 70 2. It
referred to a single precedent, its judgment of 8 March 1994 in which it
considered that the maximum duration provided for in Article 70 2 of the
Criminal Code of 1973 was just like a new, independent sentence (see
paragraph 25 above). However, the Supreme Court departed from that

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DEL RIO PRADA v. SPAIN JUDGMENT

interpretation, pointing out that that decision, which it considered an

isolated one, could not be relied on as a precedent in so far as it had never
been applied in a constant manner as required under Article 1 6 of the
Civil Code. Even assuming that that decision could have been considered as
a precedent, the court reiterated that the principle of equality before the law
(Article 14 of the Constitution) did not preclude departures from the caselaw, provided that sufficient reasons were given. Furthermore, the principle
that the law should not be applied retroactively (Article 25 1 of the
Constitution) was not meant to apply to case-law.
29. A dissenting opinion was appended to judgment 197/2006 by three
judges. They considered that the sentences imposed successively were
transformed or combined into another sentence of the same kind, but
different in so far as it combined the various sentences into one. They called
it the sentence to be served, that is to say the one resulting from the
application of the limit fixed in Article 70 2 of the Criminal Code of 1973,
which effectively extinguished the sentences that went beyond that limit.
This new unit of punishment was the term the prisoner had to serve, to
which remission for work done should be applied. Remissions should
therefore be applied to the sentences imposed, but only once they had been
processed in conformity with the rules on the consecutive serving of
sentences. The dissenting judges also pointed out that for the purposes of
determining the most lenient criminal law following the entry into force of
the Criminal Code of 1995, all Spanish courts, including the Supreme Court
(agreements adopted at the Plenary sessions on 18 July 1996 and 12
February 1999), had agreed to the principle that reductions of sentence
should be applied to the sentence resulting from the application of Article
70 2 of the Criminal Code of 1973 (the thirty-year limit). In application of
that criterion no fewer than sixteen people convicted of terrorism had
recently had their sentences reduced for work done although they had each
been given prison sentences of over a hundred years.
30. The dissenting judges considered that the method applied by the
majority was not provided for in the Criminal Code of 1973 and therefore
amounted to retroactive implicit application of the new Article 78 of the
Criminal Code of 1995, as modified by institutional law 7/2003 on
measures for the full and effective execution of sentences (see paragraph 23
above). This new interpretation was also contra reo, constituted a policy of
full execution of sentences alien to the Criminal Code of 1973, could be a
source of inequalities and was contrary to the case-law of the Supreme
Court (judgments of 8 March 1994, 15 September 2005 and 14 October
2005, see paragraphs 25-26 above). Lastly, the dissenting judges considered
that criminal policy reasons could on no account justify such a departure
from the principle of legality, even in the case of an unrepentant terrorist
murderer.

DEL RIO PRADA v. SPAIN JUDGMENT

11

E. Recent developments: the case-law of the Constitutional Court

31. In a series of judgments of 29 March 2012 the Constitutional Court
ruled on several amparo appeals lodged by convicts to whom the Parot
doctrine had been applied. In two cases (4893-2006, 4793-2009) it allowed
the appeals for violation of the right to effective judicial protection
(Article 24 1 of the Constitution) and the right to liberty (Article 17 1 of
the Constitution). The Constitutional Court considered that the new method
of calculating remission following the Supreme Courts departure in 2006
from its earlier case-law was in contradiction with the earlier final judicial
decisions in the appellants cases. In those earlier firm and final decisions,
in order to determine which was the most lenient criminal law applicable
(the Criminal Code of 1973 or that of 1995), the courts had based
themselves on the principle that the reductions of sentence for work done
provided for in the Criminal Code of 1973 should be applied to the thirtyyear maximum sentence, not to each sentence individually. In so doing they
had reached the conclusion that the regime of the Criminal Code of 1973,
with its reductions of sentence for work done, was more favourable to the
appellants than the new Criminal Code of 1995. In a third case (appeal no.
10651-2009), the Constitutional Court found in the appellants favour for
violation of the right to effective judicial protection (Article 24 of the
Constitution), considering that the Audiencia Nacional had changed the date
of the prisoners final release, thereby disregarding its own firm and final
judicial decision given a few days earlier. In these three cases the
Constitutional Court pointed out that the right to effective judicial
protection included the right not to have final judicial decisions overruled
(the intangibility of final judicial decisions).
32. In twenty-five other cases the Constitutional Court dismissed the
amparo appeals on the merits, finding that the decisions by which the
ordinary courts had set the appellants final dates of release in application of
the departure from precedent in 2006 had not contravened any final judicial
decision concerning them.
33. Both in the judgments in the appellants favour (paragraph 31) and
in those against them (paragraph 32) the Constitutional Court dismissed the
complaints under Article 25 of the Constitution (principle of legality),
considering that the question of the calculation of remission for work done
concerned the execution of the sentence and on no account the application
of a harsher sentence than that provided for in the applicable criminal law,
or a sentence exceeding the limit allowed by law. It cited the case-law of the
European Court of Human Rights according to which a distinction was to be
made, for the purposes of Article 7 of the Convention, between measures
constituting a penalty and measures relating to the execution of a
penalty (Grava v. Italy, no. 43522/98, 51, 10 July 2003, and Gurguchiani
v. Spain, no. 16012/06, 31, 15 December 2009).

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DEL RIO PRADA v. SPAIN JUDGMENT

34. Several judges appended separate concurring or dissenting opinions

to the judgments of the Constitutional Court.

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
35. The applicant complained about the retroactive application of the
Supreme Courts case-law to her case. She reiterated that the prison in
Murcia where she was incarcerated had already fixed the date of her release
in application of Article 70 2 of the Criminal Code, and stressed that the
new calculation had increased her detention by almost nine years. She relied
on Article 7 of the Convention, which reads as follows:
1. No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or international
law at the time when it was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act
or omission which, at the time when it was committed, was criminal according to the
general principles of law recognised by civilised nations.

A. Admissibility
36. The Government submitted that Article 7 did not concern the
provisions governing the calculation of prison benefits leading to a
reduction of sentence, but only those relating to crimes and their
punishment. They relied on 142 of the Kafkaris v. Cyprus [GC] judgment
(no. 21906/04, 12 February 2008), concerning the distinction between a
measure which constituted a penalty and one concerning the
execution or application thereof. In the instant case the sentences
imposed added up to over 3,000 years imprisonment and were to be served
consecutively up to the maximum limit of thirty years. Unlike in the
Kafkaris case, in the present case the borderline between sentence and
execution of sentence was very clear. The method for calculating prison
benefits to earn a reduction of the sentences imposed was not part of the
penalty within the meaning of Article 7.
37. The applicant submitted that in applying the Supreme Courts newly
introduced case-law in its judgment 197/2006, the Audiencia Nacional had
considerably increased the length of her detention, by pushing back the date
of her release from 2 July 2008, as fixed by the prison authorities, to
27 June 2017, that is, by an additional nine years. The aggravation of the
applicants penalty, increasing the term of her detention by over nine years,

DEL RIO PRADA v. SPAIN JUDGMENT

13

was serious, and in terms of its length and its consequences went well
beyond the mere execution of the penalty. For the applicant, it in fact
amounted to the imposition of a heavier penalty.
38. The Court considers that this question is closely linked to the
substance of the applicants complaint under Article 7 of the Convention,
and decides to join it to the merits (see, mutatis mutandis, Gurguchiani v.
Spain, no. 16012/06, 25, 15 December 2009). It notes that this complaint
is not manifestly ill-founded within the meaning of Article 35 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
B. The merits
1. The parties submissions
39. The applicant alleged that the new method for calculating reductions
of sentence had been applied without any change to the relevant legal
provisions, by a simple departure from precedent by the Supreme Court
because of political and media pressure on it. There had accordingly been a
violation of Article 7 as regards the quality of the law. The applicant
referred to paragraph 152 of the above-mentioned Kafkaris judgment in this
connection.
40. She further submitted that a penalty harsher than that applicable at
the time when she had committed the offence for which she had been
convicted had been applied retroactively. Indeed, the resulting increase in
the term of imprisonment she was required to serve had deprived her of the
remission of sentence to which she was entitled.
41. The Government submitted that the offences and the penalties that
were applied to the applicant had been clearly defined in the Criminal Code
of 1973, well before the offences had been committed. All the convictions
pronounced by the Audiencia Nacional had therefore had a legal basis in the
Criminal Code in force at the time when the offences were committed. In
addition, the provisions concerning the execution of the different prison
sentences pronounced against the applicant, namely Articles 70 and 100 of
the Criminal Code of 1973, had also been in force at the material time. The
Government admitted, however, that prior to the Supreme Court judgment
197/2006 it was the practice of the prisons and the courts to consider the 30year limit established in Article 70 2 of the Criminal Code of 1973 as a
sort of new, independent sentence, to which prison benefits should be
applied.
42. The Government reiterated that the calculation of prison benefits fell
outside the scope of Article 7. Even assuming that it did fall within the
scope of Article 7, the legislative provisions governing prison benefits had
not changed. It was only the courts interpretation of them that had changed.

14

DEL RIO PRADA v. SPAIN JUDGMENT

In this connection the Government pointed out that according to the Courts
case-law Article 7 could not be read as outlawing the gradual clarification of
the rules of criminal liability through judicial interpretation from case to
case (Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96,
35532/97 and 44801/98, 50, ECHR 2001-II, and Kafkaris, cited above,
141). So surely a simple change in the case-law concerning the calculation
of prison benefits which, according to the Government affected neither the
definition of the offence nor the penalty imposed could not possibly
constitute a violation of Article 7. To claim otherwise would petrify the law
and make it impossible for the courts, through their case-law, to accomplish
their task of allowing the progressive development of criminal law. For
the Government, it was unthinkable that Article 7 should be seen as giving
all convicts the right to expect that from the time when the offence was
committed to the time when the sentence was fully discharged the case-law
concerning the calculation of prison benefits would never change.
43. The Government argued that the difficulty in proving what the
predominant interpretation was at the time was also apparent in the fact that
the Supreme Courts judgment 197/2006 cited a single precedent in the
matter (the judgment of 8 March 1994). The Supreme Court explicitly
departed from that precedent, in a reasoned and reasonable manner. The
departure from precedent was foreseeable because of the legal provisions
applied, which clearly stated that remission for work done was calculated in
respect of each sentence until the legal maximum was reached. Moreover,
by the time the prison had to calculate the reductions applicable to the
numerous sentences imposed on the applicant, a precedent had already been
clearly set in judgment 197/2006. However, the prison authorities did not
take that precedent into account in their initial proposal, which led the court
responsible for the execution of sentences the Audiencia Nacional to ask
them to make a new proposal, more in keeping with the established caselaw.
44. Lastly, according to the Government it could not be said that the
applicant had no way of knowing that she would be obliged to serve her
prison sentences up to the legal maximum of thirty years, as she had
constantly been reminded of that fact in the different judgments convicting
her, as well as in the decision of the Audiencia Nacional of 30 November
2000.
2. The Courts assessment
a) Summary of the relevant principles

45. The Court first recalls that the guarantee enshrined in Article 7,
which is an essential element of the rule of law, occupies a prominent place
in the Convention system of protection, as is underlined by the fact that no
derogation from it is permissible under Article 15 even in time of war or

DEL RIO PRADA v. SPAIN JUDGMENT

15

other public emergency. It should be construed and applied, as follows from

its object and purpose, in such a way as to provide effective safeguards
against arbitrary prosecution, conviction and punishment (see S.W. v. the
United Kingdom, 22 November 1995, 35, Series A no. 335-B).
46. The Court also reiterates that according to its case-law Article 7 of
the Convention is not confined to prohibiting the retrospective application
of the criminal law to an accuseds disadvantage. It also embodies, more
generally, the principle that only the law can define a crime and prescribe a
penalty (nullum crimen, nulla poena sine lege) (see Kokkinakis v. Greece,
25 May 1993, 52, Series A no. 260-A), as well as the principle that the
criminal law must not be extensively construed to an accuseds detriment,
for instance by analogy (see Come and Others v. Belgium, nos. 32492/96,
32547/96, 32548/96, 33209/96 and 33210/96, 145, ECHR 2000-VII, and
Kafkaris v. Cyprus [GC], no. 21906/04, 138, ECHR 2008-...). The result is
that an offence and the penalty incurred for it must be clearly defined by
law. This condition is fulfilled when the individual can tell from the
wording of the relevant provision and, if need be, with the assistance of the
courts interpretation of it, what acts and omissions will make him
criminally liable and what penalty will be imposed for the act committed
and/or omission (see Cantoni v. France, 15 November 1996, 29, Reports
of Judgments and Decisions 1996-V, and Kafkaris, cited above, 140).
Furthermore, the foreseeability of the law does not rule out the person
concerned having to take appropriate legal advice to assess, to a degree that
is reasonable in the circumstances, the consequences which a given action
may entail (see, among other authorities, Cantoni, cited above, 35).
47. The Court has acknowledged in its case-law that however clearly
drafted a legal provision may be, in any system of law, including criminal
law, there is an inevitable element of judicial interpretation. There will
always be a need for elucidation of doubtful points and for adaptation to
changing circumstances. Again, whilst certainty is highly desirable, it may
bring in its train excessive rigidity and the law must be able to keep pace
with changing circumstances. Accordingly, many laws are inevitably
couched in terms which, to a greater or lesser extent, are vague and whose
interpretation and application are questions of practice (see, mutatis
mutandis, Kokkinakis, cited above, 40). The role of adjudication vested in
the courts is precisely to dissipate such interpretational doubts as remain
(see, mutatis mutandis, Cantoni, cited above). Article 7 of the Convention
cannot be read as outlawing the gradual clarification of the rules of criminal
liability through judicial interpretation from case to case, provided that the
resultant development is consistent with the essence of the offence and
could reasonably be foreseen (see S.W. v. the United Kingdom, cited above,
36, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96,
35532/97 and 44801/98, 50, ECHR 2001-II).

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DEL RIO PRADA v. SPAIN JUDGMENT

48. The concept of a "penalty" in Article 7 is, like the notions of "civil
rights and obligations" and "criminal charge" in Article 6 1, an
autonomous Convention concept. To render the protection offered by
Article 7 effective, the Court must remain free to go behind appearances and
assess for itself whether a particular measure amounts in substance to a
"penalty" within the meaning of this provision (see Welch v. the United
Kingdom, 9 February 1995, 27, Series A no. 307-A, and Jamil v. France,
8 June 1995, 30, Series A no. 317-B). The wording of Article 7 1,
second sentence, indicates that the starting-point in any assessment of the
existence of a penalty is whether the measure in question is imposed
following conviction for a criminal offence. Other factors that may be
taken into account as relevant in this connection are the nature and purpose
of the measure in question; its characterisation under national law; the
procedures involved in the making and implementation of the measure; and
its severity (see Welch, cited above, 28, and Jamil, cited above, 31). To
this end, both the Commission and the Court in their case-law have drawn a
distinction between a measure that constitutes in substance a penalty and
a measure that concerns the execution or enforcement of the penalty.
In consequence, where the nature and purpose of a measure relate to the
remission of a sentence or a change in a regime for early release, this does
not form part of the penalty within the meaning of Article 7 (see, among
other authorities, Hosein v. the United Kingdom, no. 26293/95, Commission
decision of 28 February 1996; Grava v. Italy, no. 43522/98, 51, 10 July
2003; Kafkaris, cited above, 142; Scoppola v. Italy (no. 2) [GC], no.
10249/03, 98, 17 September 2009; and M. v. Germany, no. 19359/04,
121, 17 December 2009). However, in practice, the distinction between the
two may not always be clear-cut (see Kafkaris, cited above, 142, and
Gurguchiani, cited above, 31).
b) Application of the above principles to the instant case

49. In the instant case the Court notes first of all that the applicants
convictions and the different prison sentences she was given had a legal
basis in the criminal law applicable at the material time, a fact which the
applicant does not dispute.
50. The parties arguments mainly concern the calculation of the total
sentence to be served in application of the rules on combined sentences, for
the purposes of applying the relevant remissions. In this connection the
Court notes that a decision of the Audiencia Nacional of 30 November 2000
fixed the maximum term of imprisonment to be served by the applicant in
order to discharge all the sentences pronounced against her at thirty years, in
accordance with Article 988 of the Code of Criminal Procedure and Article
70 2 of the Criminal Code of 1973, in force at the time when the offences
were committed. On 24 April 2008 the prison authorities set 2 July 2008 as
the date for the applicants release, a date arrived at by applying the

DEL RIO PRADA v. SPAIN JUDGMENT

17

remission for work done to which she was entitled to the maximum term of
thirty years imprisonment. Subsequently, on 19 May 2008, the Audiencia
Nacional asked the prison authorities to change the proposed date of release
and calculate a new date based on the new precedent set by the Supreme
Court in it judgment 197/06 of 28 February 2006. According to the new
precedent, the prison benefits and remissions to which the applicant was
entitled were to be applied to each of the sentences individually and not to
the thirty-year maximum term. Applying the new criterion, the Audiencia
Nacional fixed the new date of the applicants final release at 27 June 2017.
51. Consequently, the issue that the Court needs to determine in the
present case is what the penalty imposed on the applicant actually entailed
under the domestic law. The Court must, in particular, ascertain whether the
text of the law, read in the light of the accompanying interpretative caselaw, satisfied the requirements of accessibility and foreseeability. In doing
so it must have regard to the domestic law as a whole and the way it was
applied at the material time (see Kafkaris, cited above, 145).
52. It is true that when the applicant committed the offences, Article
70 2 of the Criminal Code of 1973 referred to a limit of thirty years
imprisonment as the maximum term or sentence to be served (condena) in
the event of multiple sentences. There thus seemed to be a distinction
between the concept of sentence to be served (condena) and the
sentences actually pronounced or imposed, that is to say the individual
sentences pronounced in the different judgments convicting the applicant.
Article 100 of the Criminal Code of 1973, on reduction of sentence for work
done, established that, in discharging the sentence imposed, the detainee
was entitled to one days remission for every two days work done.
However, that Article contained no specific guidance on calculating
reductions of sentence when the multiple sentences pronounced added up to
far more than the thirty-year limit provided for in Article 70 2 of the
Criminal Code, as they did in the applicants case (where they totalled over
3,000 years). Article 100 ruled out the application of reductions of sentence
for work done in only two specific cases: when detainees escaped or
attempted to escape, even if they did not succeed, and when they repeatedly
misbehaved while serving their sentence (see paragraph 20 above). The
Court observes that it was not until the entry into force of the new Criminal
Code of 1995 that the law made express provision for the possibility of
applying prison benefits to all the sentences imposed, not to the maximum
term to be served by law, and only in exceptional cases (Article 78 of the
Criminal Code, see paragraph 23 above).
53. The Court must also consider the case-law and practice regarding the
interpretation of the relevant provisions of the Criminal Code of 1973. It
notes, and the Government admit, that when a person was convicted and
sentenced to more than one term of imprisonment, the prison authorities,
with the agreement of the judicial authorities, generally considered that the

18

DEL RIO PRADA v. SPAIN JUDGMENT

limit provided for in Article 70 2 of the Criminal Code of 1973 (thirty

years imprisonment) became a sort of new, independent sentence to which
prison benefits should be applied (see paragraph 41 above). The prison
authorities thus took the approach that reductions of sentence should be
determined with reference to this maximum term of thirty years. This
approach is also found in the Supreme Courts judgment of 8 March 1994
(see paragraph 25 above), which was the Supreme Courts first ruling on the
subject, as well as in the practice of the Spanish courts when called upon to
determine which was the most lenient criminal law following the entry into
force of the Criminal Code of 1995, as pointed out by the dissenting judges
in the Supreme Courts judgment 197/2006 (see paragraph 29 above).
Indeed, this approach was applied to numerous prisoners in situations
similar to that of the applicant, having been convicted under the Criminal
Code of 1973, whose remissions for work done were deducted from the
maximum term of thirty years imprisonment (see paragraph 29 above).
54. The Court considers that in spite of the ambiguity of the applicable
provisions of the Criminal Code of 1973 and the fact that the first
clarification was not made by the Supreme Court until 1994, the practice
adopted by the prison authorities and the Spanish courts was to consider the
30-year maximum term of imprisonment to be served (condena) under
Article 70 2 of the Criminal Code of 1973 as a new, independent sentence,
to which certain prison benefits, such as reductions of sentence for work
done, should be applied. That practice gave the applicant a legitimate
expectation while serving her prison sentence, particularly after the
decisions of the Audiencia Nacional of 30 November 2000 (grouping the
sentences together) and 15 February 2001 (setting 27 June 2017 as the date
for her release), that the reductions of sentence to which she was entitled for
the work done since 1987 would be applied to the maximum legal term of
thirty years.
55. That being so, the Court accepts that at the time when the applicant
committed the offences, but also at the time when the decision to combine
the sentences was pronounced, the relevant Spanish law, taken as a whole,
including the case-law, was formulated with sufficient precision to enable
the applicant to discern, even with appropriate advice, to a degree that was
reasonable in the circumstances, the scope of the penalty imposed and the
manner of its execution (contrast Kafkaris, 150).
56. However, in its decisions of 19 May 2008 and 23 June 2008 the
Audiencia Nacional changed the date of the applicants early release from
the one fixed by the prison authorities, namely 2 July 2008. In so doing, the
Audiencia Nacional based itself on the new case-law established by the
Supreme Court in its judgment 197/06, of 28 February 2006 (see paragraphs
27 and 28 above), which was pronounced long after the applicant had
committed the offences and the decision to combine the sentences had been
taken. The Court notes that in this new judgment the Supreme Court

DEL RIO PRADA v. SPAIN JUDGMENT

19

departed, by a majority, from the precedent it had set in 1994. For the
majority of the judges the new method of calculating remission was more
consistent with the actual wording of the provisions of the Criminal Code of
1973, which made a distinction between penalties imposed and sentence
to be served (condena).
57. While the Court readily accepts that the domestic courts are the best
placed to interpret and apply domestic law, it also reiterates that the
principle, embodied in Article 7 de la Convention, that only the law can
define a crime and prescribe a penalty means that criminal law must not be
extensively construed to the detriment of the accused (see, for example,
Come and Others v. Belgium, ECHR 2000-VII, 145).
58. The Court notes that the new interpretation of the Supreme Court, as
applied in the present case, led to the sentence the applicant was to serve
being extended retroactively by almost nine years, in so far as all the
remission to which she was entitled for work done was lost because of the
length of the sentences pronounced against her. In such circumstances, even
if the Court accepts the Governments argument that the calculation of
remission as such falls outside the scope of Article 7, the way in which the
provisions of the Criminal Code of 1973 were applied went beyond this. As
the change of method used to calculate the sentence to be served had a
significant impact on the effective length of the sentence, to the applicants
detriment, the Court considers that the distinction between the scope of the
sentence imposed on the applicant and the manner of its execution was not
immediately apparent (see, mutatis mutandis, Kafkaris, cited above, 148).
59. Having regard to the above and in the light of Spanish law taken as a
whole, the Court considers that the new means of calculating remission,
based on the Supreme Courts departure from precedent, did not only
concern the execution of the applicants sentence. The measure also had a
decisive impact on the scope of the sentence imposed, leading in practice to
an increase of almost nine years in the term the applicant had to serve.
60. It remains to be seen whether this interpretation by the domestic
courts which came about long after the applicant committed the offences
for which she was convicted, and even after the decision of 30 November
2000 grouping the sentences together could reasonably have been foreseen
by the applicant (see S.W. v. the United Kingdom, cited above, 36). The
Court considers it necessary, in order to ensure that the protection afforded
by Article 7 1 of the Convention remains effective, to examine whether
the applicant could, if necessary after having consulted a lawyer, have
foreseen that once the court had ordered the sentences to be combined, the
domestic courts would adopt such an interpretation of the scope of the
penalty imposed, having regard in particular to the judicial and
administrative practice prior to the judgment of 28 February 2006 (see
paragraph 54 above). In this respect the Court notes that the only relevant
precedent cited in that judgment was that of 8 March 1994, in which the

20

DEL RIO PRADA v. SPAIN JUDGMENT

Supreme Court had taken the opposite approach, referring to Article 59 of

the Prison Rules of 1981 in force at the time the applicant committed the
offences. Furthermore, as the dissenting judges pointed out in the judgment
of 25 February 2006, the other judgments cited, even though they applied
the new Criminal Code of 1995, took a similar approach in considering the
maximum legal term of imprisonment as a new, independent sentence (see
paragraphs 26 and 30 above).
61. The Court notes that the lack of established case-law to support the
Supreme Courts judgment of 28 February 2006 is also reflected in the lack
of precedents supplied by the Government, who agree that the practice of
the prisons and the courts until that time had been in keeping with the
judgment of 8 March 1994, that is, more favourable to the applicant (see
paragraph 41 above).
62. The Court also notes that the Supreme Courts new case-law
deprived of all meaning the remissions of sentence to which individuals
convicted, like the applicant, under the old Criminal Code of 1973 were
entitled in exchange for work done, after having served a substantial part of
their sentences. In other words, the sentence the applicant was required to
serve was increased to 30 years effective imprisonment, on which the
applicable remission to which she would previously have been entitled had
no effect whatsoever. The Court observes that this change of case-law came
about after the entry into force of the new Criminal Code of 1995, which did
away with the system of reductions of sentence in exchange for work done
(see paragraph 23 above) and introduced new, stricter rules on the
calculation of remissions of sentence for offenders sentenced to multiple
lengthy terms of imprisonment (see paragraph 23 above, Article 78 of the
Criminal Code of 1995 as amended by institutional law 7/2003). While the
Court accepts that the States are free to amend their criminal policy,
including by increasing the penalties applicable for criminal offences (see
Achour v. France [GC], no. 67335/01, 44, ECHR 2006-IV), it considers
that the domestic courts must not, retroactively and to the detriment of the
individual concerned, apply the spirit of legislative changes brought in after
the offence was committed. The retroactive application of later criminal
laws is permitted only when the change of law is more favourable to the
accused (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September
2009).
63. In the light of the above the Court considers that it was difficult, or
even impossible, for the applicant to foresee the Supreme Courts departure
from precedent and therefore to know, at the material time and also at the
time when all the sentences were combined into one, that the Audiencia
Nacional would calculate the reductions of sentence in respect of each
sentence individually and not of the total term to be served, thereby
substantially lengthening the time she would actually serve.

DEL RIO PRADA v. SPAIN JUDGMENT

21

64. That being so, the Court must reject the Governments preliminary
objection and conclude that there has been a violation of Article 7 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
65. The applicant considered that the fact that she was kept in detention
after 3 July 2008 was contrary to the requirements of lawfulness and
observance of a procedure prescribed by law. She relied on Article 5 of
the Convention, the relevant parts of which read as follows:
1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...

A. Admissibility
66. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention and that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties submissions
67. The applicant submitted that following the Supreme Courts
departure from precedent, the length of her detention had been arbitrarily
extended until 27 June 2017, an increase of approximately nine years
compared with the date on which she should have been released by law. So
since 3 July 2008 she could not be considered to have been lawfully
detained in accordance with a procedure prescribed by law.
68. The Government replied that the applicant had been deprived of her
liberty by virtue of the different judgments by which the Audiencia
Nacional had convicted her, sentencing her to a total of more than 3,000
years imprisonment. It had therefore been clear to the applicant that she
would have to serve the different custodial sentences consecutively, up to
the legal limit of thirty years imprisonment, that is, until 7 July 2017. The
Government considered that the applicable legal provisions had been
sufficiently clear and precise to meet the required standards of quality of
law. Relying on the Kafkaris judgment, cited above, 120-121, they
maintained that the fact that the prison authorities had proposed a certain
date for the applicants final release (2 July 2008) could not possibly have
any incidence on the judgments by which she had been sentenced to over

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DEL RIO PRADA v. SPAIN JUDGMENT

3,000 years imprisonment. Furthermore, unlike in the Kafkaris case, the

prison authorities had merely made a proposal, which the Audiencia
Nacional declined to accept because it went against the case-law of the
Supreme Court.
2. The Courts assessment
69. The Court reiterates, concerning the lawfulness of detention,
including the question whether "a procedure prescribed by law" has been
followed, that the Convention refers essentially to national law and lays
down the obligation to conform to the substantive and procedural rules of
national law. This primarily requires any arrest or detention to have a legal
basis in domestic law but also relates to the quality of the law, requiring it to
be compatible with the rule of law, a concept inherent in all the Articles of
the Convention see (Kafkaris, cited above, 116, and M. v. Germany,
no. 19359/04, 90, ECHR 2009). The quality of the law in this sense
implies that where a national law authorises deprivation of liberty it must be
sufficiently accessible, precise and foreseeable in its application, in order to
avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, 50,
Reports 1996-III). The standard of lawfulness set by the Convention thus
requires that all law be sufficiently precise to allow the person if need be,
with appropriate advice to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail (see M. v.
Germany, cited above, 90, and Oshurko v. Ukraine, no. 33108/05, 98, 8
September 2011).
70. The "lawfulness" required by the Convention presupposes not only
conformity with domestic law but also, as confirmed by Article 18,
conformity with the purposes of the deprivation of liberty permitted by subparagraph (a) of Article 5 paragraph 1 (see Bozano v. France, judgment of
18 December 1986, 54, Series A no. 111, and Weeks v. the United
Kingdom, judgment of 2 March 1987, 42, Series A no. 114). Furthermore,
the word "after" in sub-paragraph (a) does not simply mean that the
detention must follow the "conviction" in point of time: in addition, the
"detention" must result from, "follow and depend upon" or occur "by virtue
of" the "conviction". In short, there must be a sufficient causal connection
between the conviction and the deprivation of liberty (see Weeks, cited
above, 42; Stafford v. the United Kingdom [GC], no. 46295/99, 64,
ECHR 2002-IV; Kafkaris, cited above, 117; and M. v. Germany, cited
above, 88).
71. The Court reiterates that even if Article 5 1 (a) of the Convention
does not guarantee, as such, a prisoners right to early release, be it
conditional or final (see rfan Kalan v. Turkey (dec.), no. 73561/01,
2 October 2001, and elikkaya v. Turkey (dec.), no. 34026/03, 1 June 2010),
the situation may differ when the domestic courts, having no discretionary
power, are obliged to apply such a measure to any individual who meets the

DEL RIO PRADA v. SPAIN JUDGMENT

23

conditions of entitlement laid down by law (see Grava v. Italy,

no. 43522/98, 43, 10 July 2003, and Pilla v. Italy, no. 64088/00, 41,
2 March 2006).
72. The Court has no doubt that the applicant was convicted by a
competent court, in accordance with a procedure prescribed by law, within
the meaning of Article 5 1 (a) of the Convention. Indeed, the applicant did
not challenge the lawfulness of her detention prior to 2 July 2008, the date
initially proposed by the prison for her final release. The question is rather
whether her detention after that date was in conformity with the penalty
initially imposed.
73. The Court notes that in eight different sets of proceedings the
applicant was found guilty by the Audiencia Nacional of several offences
linked to terrorist attacks. The sum total of all the custodial sentences
pronounced against her by virtue of the applicable provisions of the
Criminal Code amounted to over 3,000 years imprisonment. However, in
most of the judgments by which she was convicted, and in the decision of
30 November 2000 to combine the sentences, the Audiencia Nacional
indicated that the maximum term of imprisonment to be served, in
conformity with Article 70 2 of the Criminal Code of 1973, was thirty
years. The applicant was therefore detained by virtue of all the criminal
convictions pronounced against her by the Audiencia Nacional (see, mutatis
mutandis, Garagin v. Italy (dec.), no. 33290/07, 29 April 2008).
74. The Court must also verify that the effective duration of the
deprivation of liberty, taking account of the applicable rules on remission of
sentence, was sufficiently foreseeable for the applicant. However, in the
light of the considerations that led it to find a violation of Article 7 of the
Convention, the Court considers that at the material time the applicant could
not have foreseen to a reasonable degree that the effective duration of her
term of imprisonment would be increased by almost nine years, cancelling
out the remission to which she was entitled under the old Criminal Code of
1973 in exchange for work done. In particular, she could not have foreseen,
at the time when all her sentences were combined into one, that the method
used to calculate remissions of sentence would change as a result of a
departure from precedent by the Supreme Court in 2006, and that the new
approach would be applied retroactively.
75. Having regard to all the facts of the case, the Court considers that the
applicants detention after 3 July 2008 has not been lawful. There has
accordingly been a violation of Article 5 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
76. Lastly, the applicant complained that the new precedent set by the
Supreme Court had been used by the Spanish courts to prevent or delay the
release of prisoners who belonged to ETA. Prisoners convicted for terrorist

24

DEL RIO PRADA v. SPAIN JUDGMENT

offences were specially targeted, while the new calculation method was
rarely used in respect of other detainees. The purpose of the new approach
was primarily political. In practice it created a new, virtually lifetime
sentence for Basque political prisoners. She relied on Article 14 read in
conjunction with Articles 5 1 and 7 of the Convention. Article 14 reads as
follows:
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.

77. The Government disagreed.

78. The Court considers that the principles applied by the Audiencia
Nacional to calculate the applicants remission were based on the precedent
set by the Supreme Court in its judgment of 28 February 2006. This was a
general precedent and was therefore equally applicable to individuals who
were not members of ETA.
79. Accordingly, the Court must reject this complaint as being
manifestly ill-founded within the meaning of Article 35 3 (a) and 4 of the
Convention.
IV. ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
80. Under the terms of this provision:
1. The High Contracting Parties undertake to abide by the final judgment of the
Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of
Ministers, which shall supervise its execution.

81. By virtue of Article 46 of the Convention, the High Contracting

Parties undertake to abide by the final judgment of the Court in any case to
which they are parties, execution being supervised by the Committee of
Ministers. This means that when the Court finds a violation, the respondent
State is under a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction under Article 41, but also to take the
necessary general and/or, if appropriate, individual measures. The Courts
judgments being essentially declaratory in nature, the respondent State
remains free, subject to monitoring by the Committee of Ministers, to
choose the means by which it will discharge its legal obligation under
Article 46 of the Convention, provided that such means are compatible with
the conclusions set out in the Courts judgment (see Scozzari and Giunta v.
Italy [GC], nos. 39221/98 and 41963/98, 249, ECHR 2000-VIII, and
Scoppola v. Italy (no. 2) [GC], no. 10249/03, 147, 17 September 2009).

DEL RIO PRADA v. SPAIN JUDGMENT

25

82. Nevertheless, exceptionally, with a view to assisting the respondent

State in fulfilling its obligations under Article 46, the Court has sought to
indicate the type of measure that might be taken to put an end to the
situation identified (see, for example, Broniowski v. Poland [GC],
no. 31443/96, 194, ECHR 2004-V). In other exceptional cases, the nature
of the violation found may be such as to leave no real choice as to the
measures required to remedy it and the Court may decide to indicate only
one such measure (see Assanidze v. Georgia [GC], no. 71503/01, 202203, ECHR 2004-II, Alexanian v. Russia, no. 46468/06, 239-240, 22
December 2008, and Fatullayev v. Azerbaijan, no. 40984/07, 176-177,
22 April 2010).
83. The Court considers that the present case belongs to this lastmentioned category. Having regard to the particular circumstances of the
case and to the urgent need to put an end to the violation of Articles 7 and
5 1 of the Convention (see paragraphs 64 and 75 above), the Court
considers it incumbent on the respondent State to ensure that the applicant is
released at the earliest possible date.
B. Article 41 of the Convention
84. Under the terms of Article 41 of the Convention,
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

1. Damage
85. The applicant claimed 50,000 euros (EUR) in respect of the nonpecuniary damage allegedly sustained.
86. The Government considered that sum disproportionate, and pointed
out that in the event of a finding of a violation of the Convention and if the
applicant was still in detention when the judgment was pronounced, it was
not to be excluded that she might obtain restitutio in integrum at the
domestic level, in conformity with the case-law of the Constitutional Court.
87. Ruling on an equitable basis, as required by Article 41 of the
Convention, the Court awards the applicant EUR 30,000 in respect of nonpecuniary damage.
2. Costs and expenses
88. The applicant claimed EUR 1,500 for the costs and expenses
incurred before the Court.
89. The Government left the matter to the Courts discretion.

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DEL RIO PRADA v. SPAIN JUDGMENT

90. In the present case, on the basis of the information in its possession
and its case-law, the Court considers the sum of EUR 1,500 for costs and
expenses for the proceedings before the Court to be reasonable and awards
the applicant that amount.
C. Default interest
91. The Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY,

1. Joins to the merits the Governments preliminary objection and
dismisses it;
2. Declares the application admissible in respect of the complaints under
Articles 7 and 5 1 of the Convention and the remainder of the
application inadmissible;
3. Holds that there has been a violation of Article 7 of the Convention;
4. Holds that there has been a violation of Article 5 1 of the Convention;
5. Holds that the respondent State is to ensure that the applicant is released
at the earliest possible date (see paragraph 83 above);
6. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 2 of the Convention, the following amounts:
i) EUR 30,000 (thirty thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
ii) EUR 1,500 (one thousand five hundred euros), plus any tax that
may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

DEL RIO PRADA v. SPAIN JUDGMENT

27

7. Dismisses the remainder of the applicants claim for just satisfaction.

Done in French and notified in writing on 10 July 2012, pursuant to Rule
77 2 and 3 of the Rules of Court.

Santiago Quesada
Registrar

Josep Casadevall
President