[TRANSLATION]

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THE FACTS

The applicant [Mr Jesús María Gonzalez Marin ] is a Spanish national who lives in Valencia.

He was represented before the Court by Ms C. García Ramos , of the Valencia Bar.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 19 and 20 October 1982 the Valencia region was hit by torrential rains which produced a sudden rise in the River Júcar and caused the Tous dam to burst and then collapse.

Land was flooded in twenty-five municipalities as a result of the dam collapsing and the water from it pouring into the Júcar . Eight people died, many properties and much farmland were damaged and some 33,000 people were affected by the disaster. The scale of it gave rise to very strong public feeling and wide reporting in the media.

At the time of the disaster the applicant was an engineer at the dam.

On 23 October 1982 Játiva (Valencia) investigating judge no. 1 started a criminal investigation.

In an order of 27 January 1983 he charged the applicant and S.M.S., another engineer who worked at the dam, with serious negligence.

On 31 January 1986 those victims of the disaster who had together joined the proceedings as a single civil party applied for two other engineers at the dam, F.S.G. and R.G.M.-R., to be charged with the same offence. In an order of 26 February 1986 the Valencia Audiencia Provincial charged F.S.G. and R.G.M.-R. with serious negligence. The two engineers and counsel representing the government lodged an appeal ( recurso de súplica ) against that decision. Their appeal was dismissed on 16 April 1986.

The trial began on 9 March 1987. The civil party sought to have a further engineer at the dam, J.S.-T.M., likewise charged with the same offence. In an order of 9 June 1987 the Valencia Audiencia Provincial charged J.S.-T.M. with very serious negligence. J.S.-T.M. lodged a súplica appeal against that decision. His appeal was dismissed on 17 July 1987. The trial was then adjourned to 20 February 1989.

On 5 October 1987 J.S.-T.M. lodged a criminal complaint against two of the Audiencia Provincial judges for abuse of office. On 30 October 1987 the Audiencia Provincial ruled that there were no grounds for that complaint. J.S.-T.M. lodged a súplica appeal against that ruling. His appeal was dismissed on 21 November 1987. On a further appeal, the Supreme Court upheld the original ruling.

Subsequently, on 6 October 1987 and 22 September 1988, J.S.-T.M. challenged the same two judges in the Valencia Audiencia Provincial, but was unsuccessful. He lodged an appeal ( recurso de amparo ) with the Constitutional Court, which dismissed it on 27 April 1989.

The trial was held at the Valencia Audiencia Provincial between 20 February 1989 and 15 February 1990. On 23 October 1990 the court acquitted the applicant, S.M.S. and F.S.G., but sentenced R.G.M.-R. and J.S.-T.M. to one year’s imprisonment and to fines for serious negligence.

R.G.M.-R. and J.S.-T.M. appealed on points of law to the Supreme Court, arguing that the trial court’s judgment should be declared a nullity on the ground that the proceedings had been flawed. In a judgment of 8 February 1993 the Supreme Court declared that the order in respect of F.S.G. and R.G.M.-R. was void and that the trial was a nullity on the ground that one of the Valencia Audiencia Provincial judges had been biased. It ordered the proceedings to be resumed expeditiously.

In a decision ( auto ) of 26 April 1993 the Valencia Audiencia Provincial ordered the trial to begin. Hearings were held in open court between 13 October and 29 November 1993.

Subsequently, in a decision of 18 December 1993, the Valencia Audiencia Provincial adjourned the date for lodging final written submissions in order to allow other victims of the disaster to bring proceedings. The defendants and the victims lodged súplica appeals (nine in all) against that decision. In a decision of 17 January 1994 the Audiencia Provincial dismissed the appeals and upheld the decision of 18 December 1993.

On 9 February 1994 counsel representing the government lodged an amparo appeal against those two decisions. Subsequently the applicant himself joined that appeal. The Constitutional Court, in a decision of 1 December 1994, reversed the decisions, found that the proceedings had been lengthy and ordered the trial to begin.

Hearings were held from 30 January to 21 July 1995.

In a judgment of 4 October 1995 the Valencia Audiencia Provincial acquitted all the defendants.

The public prosecutor’s office and the civil party appealed on points of law to the Supreme Court, which, in a judgment of 15 April 1997, served on 17 April 1997, set aside the Audiencia Provincial ’s judgment and sentenced the applicant to one month’s imprisonment and to fines for negligence under Article 586 bis of the Criminal Code. It also ordered the State to pay the damages if the applicant was insolvent.

The applicant then lodged an amparo appeal with the Constitutional Court in which he complained, inter alia , of the length of the proceedings. His appeal was dismissed in a decision of 16 July 1997, which was served on 29 July 1997, on the grounds that the fundamental right on which he relied had not been raised earlier and that the appeal did not raise a constitutional issue. The Constitutional Court stated that the applicant had failed to comply with section 44(1)(c) of the Constitutional Court Act in that he had not submitted his complaint to the Supreme Court when it had heard the appeal on points of law; he should in any event have raised it at an earlier stage of the proceedings when formal note could have been taken of the excessive length of the proceedings, and not thirteen years after the violation had occurred and after the authority responsible for the lengthy proceedings had taken steps to expedite them. The Constitutional Court also pointed out that it had already addressed that ground of appeal and granted relief on an earlier amparo appeal.

B. Relevant domestic law

1. The Constitution

Article 24 § 2

“Everyone is entitled … to a public trial without undue delays …”

Article 121

“Losses incurred as a result of judicial errors or a malfunctioning of the administration of justice shall be compensated by the State, in accordance with the law.”

2. The Judicature Act

Section 292

“1. Anyone who incurs a loss as a result of a judicial error or a malfunctioning of the judicial system shall be compensated by the State, other than in cases of force majeure , in accordance with the provisions of this Part.

2. The alleged loss must in any event actually have occurred and be quantifiable in monetary terms and must directly affect either an individual or a group of individuals.”

Section 293(2)

“In the event of a judicial error or a malfunctioning of the judicial system, the complainant shall submit his claim for compensation to the Ministry of Justice.

The claim shall be examined in accordance with the provisions governing the State’s financial liability. An appeal shall lie to the administrative courts against the decision of the Ministry of Justice. The right to compensation shall lapse one year after it could first have been exercised.”

3. The Constitutional Court Act

Section 44(1)(c)

“1. An amparo appeal in respect of a violation of rights and guarantees capable of constitutional protection … does not lie unless … the violation in question has been formally alleged in the proceedings in question as soon as possible after it has occurred.

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COMPLAINT

The applicant complained of the length of the proceedings and relied on Article 6 § 1 of the Convention.

PROCEDURE

The application was lodged on 22 January 1998 with the European Commission of Human Rights (“the Commission”) and registered on 26 January 1998.

On 27 October 1998 the Commission decided to give notice of the applicant’s complaint of the length of proceedings to the Government, whom it invited to submit written observations on its admissibility and merits. It declared the remainder of the application inadmissible.

The Government submitted their observations on 13 January 1999. The applicant replied on 2 March 1999.

Following the entry into force of Protocol No. 11 on 1 November 1998 and pursuant to Article 5 § 2 thereof, the application falls to be examined by the Court.

THE LAW

The applicant complained of the length of the proceedings and relied on Article 6 § 1 of the Convention, the relevant part of which reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

The Government noted that the applicant had complained of the decision of 18 December 1993 in which the Audiencia Provincial had referred the case back to the investigating judge in order to allow other victims of the disaster to bring proceedings. The applicant, who had considered that that would have the effect of considerably prolonging the proceedings, had lodged an amparo appeal with the Constitutional Court in which he complained of the excessive length of the proceedings. The Government submitted that the Constitutional Court had allowed the applicant’s appeal on 1 December 1994 and had ordered the trial to begin immediately in the Audiencia Provincial , thereby remedying the situation complained of.

The Government pointed out that the applicant had lodged an amparo appeal with the Constitutional Court at the end of the proceedings in which he had been convicted. They noted further that, in its decision of 16 July 1997, the Constitutional Court had dismissed that appeal on the ground that it had been lodged out of time, after the court responsible for the excessive length of proceedings had taken steps to remedy the situation.

Given that it was impossible to provide specific relief, since the Constitutional Court could not order proceedings to be expedited unless they were still in progress, the Government submitted, as their principal argument, that the applicant had failed to apply to the Ministry of Justice for compensation for the damage sustained on account of the excessive length of the proceedings, in accordance with sections 292 et seq . of the Judicature Act. They pointed out that as the proceedings had ended, the applicant could only claim compensation and they stressed the effectiveness of that remedy, as demonstrated by the large number of decisions allowing claims for compensation in cases in which a reasonable time had been exceeded. They went on to observe that an appeal lay to the Spanish administrative courts against decisions of the Ministry of Justice. They added that since the European Convention of Human Rights had been incorporated into Spanish law, the applicant could, if the Court declared the present application inadmissible for non-exhaustion of domestic remedies, submit a claim for compensation to the Ministry of Justice in accordance with the aforementioned procedure. The one-year time-limit provided for in section 293(2) of the aforementioned Act would not start to run in the instant case until the day after the Court ruled the application inadmissible. The Government therefore submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 of the Convention.

The applicant, for his part, observed that he had lodged an amparo appeal with the Constitutional Court, which was an effective remedy for the violation of the fundamental right on which he had relied. He considered that he could not be accused of failing to act expeditiously in the proceedings and still less could he be regarded as having caused the delays. He noted that the respondent State was solely responsible for the chaos which had marked the entire proceedings and submitted that he had always complained of that state of affairs within the prescribed time and in the prescribed form, and had provided sufficient documentary evidence. With regard to the conduct of the domestic authorities, he submitted that both the public prosecutor’s office and the various courts dealing with the case had contributed to prolonging to well beyond what was a reasonable time proceedings marked by the disparity of their successive phases in that they had gone from a situation of paralysis to one of frantic activity.

The applicant submitted that his full right should be restored to him by ordering a cessation of the violation and taking the steps necessary to prevent such a situation from ever recurring. He stated that he had lodged an amparo appeal with the Constitutional Court within the prescribed time and in the prescribed form. With regard to the procedure referred to by the Government, prescribed in sections 292 et seq . of the Judicature Act, he noted that it was indeed the remedy used to assert the liability of the judicial authorities, since the State was thus directly answerable for the damage caused by the malfunctioning of the judicial system. It was therefore, admittedly, a means of seeking to establish liability on the part of the authorities but it would never be an effective remedy for the purpose of securing a declaration that a fundamental right had been breached. The applicant considered that “to adjourn the issue of compensation to later proceedings was tantamount, firstly, to disregarding the most vital aspect of the Convention and, secondly, to turning the path leading to the protection of human rights into nothing short of an obstacle course for the applicant”.

The Court observes first that in the Spanish legal system anyone who considers that excessive delays are being incurred in criminal proceedings to which they are a party can, if they have complained to the court dealing with their case without success, lodge an amparo appeal with the Constitutional Court under Article 24 § 2 of the Constitution. In the present case, however, the Court notes that the applicant raised the issue of the length of the proceedings when the Audiencia Provincial referred the case back to the investigating judge in order to allow other victims of the disaster to bring proceedings and that the Constitutional Court granted his application and ordered the trial to begin immediately. After raising the same complaint (once the proceedings had ended) in the Constitutional Court, which dismissed it for being out of time, the applicant was now complaining before the Court of the total length of the criminal proceedings against him.

The Court notes, however, that under sections 292 et seq . of the Judicature Act a claim for compensation for a malfunctioning of the judicial system can be submitted to the Ministry of Justice. It also notes that, according to the relevant case-law of the administrative courts, on which the Government relied, unreasonable length of proceedings is treated as a malfunctioning of the administration of justice. 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 is therefore one which should have been used in the present case.

In the circumstances, the Court holds that, by failing to seek compensation by means of the aforementioned procedure, the applicant did not validly exhaust domestic remedies within the meaning of Article 35 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.