Resolution CM/ ResDH (2011)266 [1]

Execution of the judgment of the European Court of Human Rights

Iribarren Pinillos against Spain

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”) [2] ,

Having regard to the judgment transmitted by the Court to the Committee once it became final;

Case name (App. No.)

Judgment of

Final on

Iribarren Pinillos (36777/03)

8/01/2009

8/04/2009

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the a p plicant the just satisfaction, as provided in the judgment;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (2011)266

Information about the measures to comply with the judgment in the case of

Iribarren Pinillos against Spain

ACTION REPORT [3]

CASE: IRIBARREN PINILLOS versus SPAIN

APPLICATION Nº: 36777/2003

DATE OF JUDGMENT: 8/1/2009

DATE OF EXECUTION OF JUDGMENT 8/4/2009

ORIGINAL FRENCH

The European Court held that there had been a violation of Articles 3 and 6.1 of the Convention, the latter violation resulting from a failure to comply with the applicant ’ s right to a hearing within a reasonable time, although the Court acknowledged that the case was somewhat complex.

Article 3 of the Convention was violated as a result of the harm suffered by the applicant during a violent demonstration and of the fact that the remedy to obtain appropriate compensation for the harm suffered was not effective in practice, due to the absence of an effective investigation. The judgment refers to serious and violent skirmishes in the historical neighbourhoods of Pamplona . The demonstrators had formed barricades on the streets and lit fires and the police had been obliged, for hours on end, to use smoke and tear gas grenades (§8). The applicant, who had been taking part in the skirmishes, was seriously injured by a smoke grenade thrown from a short distance by the anti-riot police.

1) INDIVIDUAL MEASURES:

A) Compensation of pecuniary and non-pecuniary damages . The just satisfaction awarded in the judgment includes full compensation for the harm caused to the applicant. In fact, the judgment provides for compensation in respect of:

- Pecuniary damage, past and future, and compensation in this regard was fixed at 100,000 Euros (§72).

- Non pecuniary damage, which is assessed at 40,000 Euros (§75).

- Expenses, which are assessed at 30,000 Euros (§77).

Consequently, the European Court included in the just satisfaction full compensation for each of the aspects for which the applicant sought reparation (pecuniary damage, non-pecuniary damage and expenses). It should be noted that the Court included all damages "both past and future" in its estimation of the pecuniary damages.

Just satisfaction, to the sum of 174,800 Euros, was paid to the applicant on 17/6/2009, as can be seen from the supporting documents already provided.

B) Dissemination of the judgment . As can be seen from the supporting documents provided, the judgment has been disseminated as widely as possible: it was translated into Spanish, forwarded to a large number of judicial bodies and published in the newsletter of the Ministry of Justice. In this way reparation was also made for the moral prejudice suffered.

Spain considers that there is no need to provide for any other type of individual measures given that the judgment provides for compensation for all of the damages suffered.

2) GENERAL MEASURES

A) Dissemination of the judgment . The judgment was widely disseminated to ensure that the persons responsible for applying the law are familiar with the Court ’ s case-law and avoid such violations in future.

B) With regard to the disproportionate use of force from the standpoint of Article 3 ECHR:

B-1) Regulatory framework:

- The fact that under Spanish criminal law torture and ill-treatment are considered offences reinforces the protection already imposed by Article 1 of the UN Convention against Torture (Article 173 et seq. of the Criminal Code: torture and other crimes against moral integrity).

- Spanish legislation governing the "Security Forces and Corps" provides many safeguards to citizen ’ s rights. Spanish Organic Law 2/1986, of 13 March on Spanish Security Forces (" Fuerzas y Cuerpos de Seguridad ") establishes the basic principles governing police interventions. These principles constitute a genuine code governing the activities of all police forces in Spain . The legislation establishes limits for the use of force in general and the use of weapons in particular and stipulates that such use is legitimate only if there is a serious threat to the life or physical integrity of the police or of third parties and that use must always be proportional to the aim, reasonable and exceptional (Article 5).

- The regulations governing the financial liability of the public authorities stipulates that compensation must be paid to anyone suffering damages, who can prove that there is a causal link between the damage suffered and the functioning, normal or otherwise, of a public service (Article 139 and seq. of the Spanish Law 30/1992, of 26 November on the legal arrangements governing public authorities and administrative procedure).

B-2) Court practice in Spain . The Spanish Constitutional Court has adopted the case-law of the Strasbourg Court concerning the need to conduct exhaustive investigations in cases where there are complaints of ill-treatment by police officers.

In 2008 (therefore after the facts of the case) the Spanish Constitutional Court extended and clarified its case-law with regard to the conduct of investigations in cases of ill treatment – and handed down six judgments on such matters: judgments 34/2008 of 25 February, 52/2008 of 14 April, 63/2008 of 26 May, 69/2008 of 23 June, 107/2008 of 22 September, and 123/2008 of 20 October.

- The Court underlines “the seriousness of failure to observe this prohibition [torture and ill treatment] [4] and the type of judicial action required to ensure compliance with it, given that it is difficult to detect this type of offence and in view of the fact that the preservation of personal integrity and dignity, the main purpose of the prohibition, depends to a very large degree on observance of this principle”.

- “The right to effective judiciary protection can therefore only be guaranteed in such cases if there is adequate and effective investigation of the elements reported”, which requires “special instructions to ensure that all reasonable lines of investigation are pursued in ascertaining the facts“. [5]

With regard to the criminal investigation concerning ill treatment, the following rules have been established:

- “Among other things account shall be taken of the probable absence of evidence in this type of offence, which should encourage the investigation judge to be diligent in ensuring that all possible measures of investigation are actually taken and to apply the principle of burden of proof as sufficient grounds for setting the criminal investigation in motion, given the difficulty for victims to submit evidence in support of their allegations” [6]

- “The official status of the persons against whom such allegations are made shall be counterbalanced by firmness on the part of the courts in dealing with any resistance or delay in seeking evidence. Particular care must be taken to seek evidence from outside the institutions concerned”. [7]

- It is particularly important that “for the purposes of the investigation there has to be a presumption that any injuries prisoners might have following detention and which did not exist beforehand, are presumed to have been inflicted by the persons responsible for their custody”. [8]

The case-law of the Constitutional Court with regard to fundamental rights is binding on all judges and courts (Section 5.1 and 7.2 of the Spanish Courts Act.).

B-3) Determined efforts have been made to train state security forces and all judicial staff in human rights and, more specifically, in preventing and detecting ill-treatment. Human rights training is part of not only their initial but also their in-service training.

For example, a working group was set up in 2005 to review police training programmes, mainly from the standpoint of human rights. This work was carried out in co-operation with Amnesty International (AI) to supplement the said training with teaching materials and advice from experts seconded by AI.

The Security State Secretariat (Interior Ministry) adopted decree 12/2007 on the behaviour required from the members of security forces to guarantee the right of persons under detention or under police custody. Pursuant to said decree, national and international provisions on human rights and the use of force have to be part of the initial and in-service training of security forces.

Said specific training is also part of the Human Rights National Plan (measure no. 103), adopted by the Spanish Government on 12 December 2008.

C) With regard to the reasonable length of proceedings : according to the document published by the General Judicial Council, “Key judicial indicators” in 2010 ( http://www.p o d e rjudicial.es ), and despite the increase in the number of disputes, the average length of proceedings in all of the courts is perfectly reasonable and stable.

In particular, the average length of proceedings in the administrative field (the source of the violation of Article 6.1 in the present case) is as follows:

- in the court of 1st instance: 15.5 months

- in the court of 2nd instance: 12.0 months

- Court of Cassation: 17.5 months

Spain therefore considers that no further general measures with regard to execution of the judgment are necessary as this is an isolated case.

3) JUST SATISFACTION: 174.800 Euros just satisfaction was paid to the applicant on 17/6/2009, as can be seen from the supporting documents already provided.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.

[3] This is not a legally certified translation

[4]   Judgment 34/2008, merits, 6th argument;

[5] Judgment 34/2008, merits, 6th argument;

[6] Judgment 52/2008, merits, 2nd argument;

[7] Judgment 52/2008, merits, 2nd argument;

[8] Judgment 52/2008, merits, 2nd argument.