Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986 the following members being present:

MM C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr F. MARTINEZ

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 October 1985 by

J.A. against Spain and registered on 10 December 1985 under file No.

11885/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as appearing from the applicant's submissions

may be summarised as follows:

The applicant is a Spanish citizen and at present detained in the

Penal Detention Center of Basauri (Bilbao). He is represented in the

proceedings before the Commission by Mr. Angel Elias and Mr. Rafael

Sainz de Rozas, lawyers practising in Bilbao.

The applicant is serving a prison sentence since March 1980.

On 2 July 1984, the applicant was notified that charges had been

brought against him by a prison officer. The applicant was accused of

having made insulting comments to him and of having shown insufficient

respect due to a prison officer. The applicant denied having insulted

the prison officer and requested a hearing before the Administrative

Board (Junta de Régimen y Administracion) according to the Prison

Rules.

On 7 July the applicant asked to be assisted by his counsel in the

hearing before the Board, scheduled for 10 July. Nevertheless, when

the applicant appeared before the Board he was informed that the

presence of counsel had not been authorised. A similar request was

subsequently refused. Then, the applicant protested and failed to

present any defence as long as his counsel was not permitted to

accompany him.

On 10 July 1984, as a disciplinary sanction for the alleged behaviour,

the Board punished the applicant by imposing on him solitary

confinement over three weekends, in accordance with Rule 109-a and

Rule 111-b of the Prison Rules.

The applicant appealed to the Judge of Prison Oversight (Juez de

Vigilancia) claiming that the decision of the Board had left his right

to a defence unprotected, and had disregarded the principle of the

presumption of innocence.

The Judge upheld the Board's decision on 21 August 1984. In his

decision the Judge stated that the applicant's right to counsel, as

set forth in Article 130 of the Prison Rules, had not been denied

insofar as the right protected in Article 130 is the right to be

advised by counsel and not the right to be represented.

The applicant then appealed to the Constitutional Court (recurso de

amparo), alleging violation of Article 24 (right to a fair trial and

to the presumption of innocence) of the Spanish Constitution.

Simultaneously, the applicant sought a stay of execution of the

disciplinary sanction, which the Court granted on 16 January 1985.

Nevertheless, the sanction had already been carried out by order of

the prison administration.

On 18 June 1985, the Constitutional Court dismissed the appeal insofar

as it concerns the constitutional issues under Article 24 of the

Constitution. The Court did not enter into an examination of the

other complaints raised after the introduction of the appeal because

its jurisdiction is limited to those issues presented when the appeal

is introduced, according to Article 49 of the Law (Ley Organica del

Tribunal Constitucional).

In its decision the Court, pointing out that the applicant was

subjected to the prison administration as regards the imposition of

disciplinary sanctions, stated that his failure to present any

evidence in his own defence was imputable to him alone, and was not a

failure of judicial protection. In effect, according the procedure

established in Article 130-1 of the Prison Rules, the applicant could

have been advised by counsel and could have either answered the

charges in writing, at which time he could have taken advantage of his

counsel's technical assistance, or answered them orally during his

hearing before the Board.

Moreover, the Court pointed out that the Oversight Judge reviewed the

Administrative Board's decision, and this procedure satisfies the

applicant's right to an effective legal protection.

COMPLAINTS

1. The applicant complains first that the disciplinary sanction

of three weekends solitary confinement imposed by the Administrative

Board is a deprivation of liberty within the meaning of

Article 5 para. 1 (art. 5-1) of the Convention.

2. Secondly, the applicant complains that he did not enjoy the

right to a fair trial for the following reasons:

- The Administrative Board is not an independent and impartial

tribunal established by law.

- He was sanctioned for having made insulting comments to a prison

officer and having shown insufficient respect to him without any

evidence other than the officer's report, and the principle of the

presumption of innocence was disregarded in respect of these charges.

- He was deprived of the assistance of legal counsel.

The applicant invokes Article 6 para. 1, para. 2 and para. 3,

sub-para. (c) (art. 6-1, art. 6-2, art. 6-3-c) of the Convention.

3. Lastly, the applicant argues that administrative actions must

conform to legal norms, and invokes Article 7 (art. 7) of the

Convention.

THE LAW

1. The applicant complains first that the disciplinary sanction

of three weekends solitary confinement is a deprivation of liberty

within the meaning of Article 5 para. 1 (art. 5-1) of the Convention.

The Commission notes in this respect that the Constitutional Court

dismissed the applicant's appeal insofar as it concerns the

constitutional issues under Article 24 of the Constitution (right to a

fair trial), and did not enter into an examination of the other

complaints raised after the introduction of the appeal.

The Commission considers that it is not necessary to decide whether in

the present case the applicant has exhausted domestic remedies, in

accordance with Article 26 (art. 26) of the Convention, because it

finds this part of the application in any case inadmissible.

The Commission recalls that the disciplinary arrest imposed on a

prisoner who is serving a sentence cannot be considered as

constituting a deprivation of liberty, because such measures are only

modifications of the conditions of lawful detention (see No. 7754/77,

Dec. 9.5.77, D.R. 11 pp. 216, 217).

It follows that this part of the application must be rejected as being

incompatible ratione materiae with the Convention, within the meaning

of Article 27 para. 2 (art. 27-2) of the Convention.

2. The applicant alleges secondly that he did not enjoy the right to a

fair trial by an independent and impartial tribunal. He claims that

the principle of the presumption of innocence was disregarded in

respect of the charges brought against him, and that he was deprived

of the assistance of legal counsel. He invokes Article 6 para. 1,

para. 2 and para. 3 (c) (art. 6-1, art. 6-2, art. 6-3-c) of the Convention.

The Commission has first considered whether Article 6 (art. 6) was

applicable to the proceedings in question. It recalls that in the

case of Engel and others the European Court of Human Rights held that

States were permitted under the Convention to establish a distinction

between criminal and disciplinary law, but that the Court had

jurisdiction under Article 6 (art. 6) to satisfy itself that the

disciplinary did not improperly encroach upon the criminal

(see Eur. Court H.R. Engel and others case, judgment of 8 June 1976,

para. 81). The Court enumerated three criteria which may determine

whether a disciplinary charge is, in fact, of a criminal nature. They

were as follows:

1. "whether the provisions defining the offence charged belong,

according to the legal system of the respondent State, to criminal

law, disciplinary law or both currently";

2. "the very nature of the offence";

3. "the degree of severity of the penalty which the person concerned

risks incurring" (ibid. para. 82).

The Commission further recalls that these criteria are also applicable

for the purpose of determining whether a prison disciplinary charge

falls within the "criminal" sphere (see No. 6224/73, Dec. 16.12.76,

D.R. 7 pp. 55, 63).

In the present case, the applicant was accused of having made

insulting comments to a prison officer and shown insufficient respect

due to him. This offence came within provisions of disciplinary law,

namely Rule 109-a of the Prison Rules.

As regards the nature of the offence, the Commission observes that it

was disciplinary in character insofar as it involved the violation of

legal rules governing the operation of the prison.

Consequently it is only the degree of severity of the penalty which

might be considered as necessitating the application of Article 6

(art. 6). However, contrary to the Engel case, the penalty imposed on

the applicant did not constitute a deprivation of liberty, and was

therefore not of a particularly severe nature.

The Commission concludes that Article 6 (art. 6) of the Convention

does not apply to the disciplinary proceedings in question. It

follows that this part of the application is incompatible ratione

materiae with the Convention, within the meaning of Article 27 para. 2

(art. 27-2) of the Convention.

3. Lastly, the applicant argues that administrative actions must

conform to legal norms, and invokes Article 7 (art. 7) of the

Convention.

This provision, which is mainly intended to prohibit retrospective

application of criminal law, is not applicable in this case insofar as

the disciplinary proceedings in question do not involve a criminal

charge, and thus cannot be considered to fall under Article 7 (art. 7).

It follows that the application is, in this respect, incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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