Information Note on the Court’s case-law 204

February 2017

Benavent Díaz v. Spain (dec.) - 46479/10

Decision 31.1.2017 [Section III]

Article 57

Law then in force

Reservations

Failure to update reservation following introduction of new legislation making no substantive change to relevant pre-existing law: reservation applicable

Facts – When Spain deposited its instrument of ratification of the Convention in 19 79, it formulated, under current Article 57 (former Article 64) of the Convention, a reservation concerning Articles 5 and 6 of the Convention on account of their incompatibility with the provisions of the Military Code of Justice on disciplinary regulatio ns in the armed forces. That reservation was updated in 1986 on the entry into force of Implementing Law no. 12/1985, which replaced the aforementioned provisions. Subsequently, Organic Law no. 12/1985 was in turn replaced by Organic Law no. 8/1998 on disc iplinary regulations in the armed forces, which came into force in 1999. However, the Spanish reservation concerning Articles 5 and 6 of the Convention was not updated in the light of the latter Act until 2007, when the Spanish Ministry of Foreign Affairs informed the Council of Europe that the reservation had been updated.

In 2006 the applicant, a soldier at the time, was penalised by his superior officers with a disciplinary sanction of six day’s detention pursuant to Law no. 8/1998. He decided to contest that sanction under Articles 5 and 6 of the Convention (complaining of the lack of prior court involvement), but was prevented from proceeding by the above-mentioned reservation after the Supreme Court rejected his argument that the reservation had lapsed because Spain had not informed the Council of Europe of the change in legislation until 2007, that is to say after the applicant had served his penalty.

Law – Article 57: The question raised by the present case was whether the legislation on which the dom estic authorities had based the impugned sanction (Organic Law no. 8/1998) was covered by the Spanish reservation.

(a) Applicability to the new Act of the initial reservation – Under the terms of Article 57 of the Convention, only laws “then in force” in the territory of a Contracting State may be the subject of a reservation.

However, Organic Law no. 8/1998 was in force neither in 1979, when the reservation was formulated, nor in 1986, the year of the last update of the Law before the six days’ detention was imposed on the applicant.

Nevertheless, the relevant parts of Organic Law no. 8/1998 applied in the present case had merely faithfully reproduced the provisions of Organic Law no. 12/1985, which was covered by the 1986 update of the reservation. Furth ermore, those provisions had had the same personal scope as the provisions of the previous Laws covered by the reservation, that is to say the members of the armed forces (unlike in the case of Dacosta Silva v. Spain , 69966/01, 2 November 2011, Information Note 91 , where the new Law covered members of the Civil Guard). Insofar as those provisions could not be deemed to have extended the scope of the reservation formulated in 1979 and updated in 1986, it was clear that the initial reservation had remained applicable.

(b) Ex post facto update of the reservation with the Council of Europe – The applicant considered that the Spanish State’s delay in communicating the formal amendment of the reservation to the Council of Europe justified the conclusion that the 1979 reservation was non-existent or inapplicable between the date of entry into force of the impugned 1999 Law and the date of the update of the reservation in 2007.

However, accepting that argument would mean attributing to the failure to notify the Council of Europe of an amendment to the Law initially covered by the reservation the same effects as to a formal withdrawal of the reservation. The Court had already had occasion to point out that a reservation formulated pursuant to Article 57 of the Convention remained valid until withdrawn by the respondent State. In fact, that practic e was in conformity with the Vienna Convention on the Law of Treaties, which provided that withdrawal of a reservation should be formulated in writing and be formal in nature.

The applicant’s argument therefore had to be rejected.

The Court nevertheless em phasised that formal notification to the Council of Europe of an amendment to a reservation resulting from legislative reform by a Contracting State helped to promote legal certainty. Such notification was intended to enable the Council to ascertain that s ubsequent legislative changes by that State did not extend the scope of the initial reservation and that the reservation was valid and complied with the requirements of Article 57 of the Convention.

(c) Other validity criteria – Lastly, the Spanish reserv ation satisfied the other criteria for validity set out in Article 57 of the Convention.

– It referred to particular provisions of the Convention, namely Articles 5 and 6.

– It was never alleged that the reservation was of a “general” nature; it sufficie ntly clearly stated that its raison d’être was the possible incompatibility of those provisions with disciplinary regulations in the armed forces.

– The initial 1979 reservation had contained a “brief statement of the law concerned”. The 1986 update of t he reservation explained that Organic Law no. 12/1985 reduced the duration of the custodial sanctions that could be imposed without the involvement of a court and improved the safeguards for individuals at the investigation stage. Both texts, and also the 2007 update, explicitly mentioned the particular provisions (parts and chapters of the Law) concerned.

The reservation had therefore contained a safeguard against any interpretation which might have unduly extended its scope.

In conclusion, the reservati on formulated by Spain in connection with Articles 5 and 6 of the Convention was applicable to the impugned provisions of Organic Law no. 8/1998. Accordingly, there was no need to assess the complaint concerning the custodial sanction imposed on the applic ant on the basis of a decision taken by his superior officers without the prior involvement of a court.

Conclusion : inadmissible (incompatible ratione materiae ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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