Resolution ResDH(2005) 94

concerning the judgment of the European Court of Human Rights of 25 July 2002 (final on 25 October 2002 ) in the case of P erote P ellon against Spain

(Adopted by the Committee of Ministers on 26 October 2005 at the 940th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the P erote P ellon case delivered on 25 July 2002 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 45238/99) against Spain , lodged with the European Court of Human Rights on 29 December 1998 under Article 34 of the Co n vention by Mr Juan Alberto P erote P ellon , a Spanish national, and that the Court declared admissible the complaint concerning the lack of impartiality of a military court, two of its judges having previously sat in the chamber which upheld the order of indictment (auto de procesamiento) against the applicant;

Whereas in its judgment of 25 July 2002 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention, on account of serious doubts about the impartiality of the military court which convicted the applicant;

- held that the finding of the violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage;

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 10 500 euros in respect of costs and expenses and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant ' s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 25 July 2002 , having regard to Spain ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 20 November 2002 , within the time-limit set, the government of the respondent state had paid the a p plicant the sum provided in the judgment of 25 July 2002,

Whereas during the examination of the case, the government of the respondent state provided the Committee with the information on the applicant ' s situation and on the issue of individual measures to erase the consequences of the violations found (this information appears in the Appendix to the present Resolution);

Noting with concern that no possibility currently exists in Spain to reopen domestic proceedings found to be in violation of the Convention and that the Constitutional Court ' s decision of 16 December 1991 allowing such reopening has been overruled by subsequent case-law;

Considering, as regards Spain ' s obligation to ensure, as far as possible, restitutio in integrum for the applicant, that the current impossibility of reopening the proceedings does not dispense the Committee from examining, from the point of view of the Convention, whether such a measure, or other measures to erase the consequences of the violation, would be called for (see mutatis mutandis , ResDH(2004)88 in I.J.L. and others against the United Kingdom );

Considering in this regard that the need for specific measures does not arise, taking account of the specific circumstances of this case and, in particular, of the applicant ' s release from detention and of the absence of any request on his part for reopening of the impugned domestic proceedings (cf. Recommendation R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights);

Concluding that Spain was thus not in the present case called upon, under Article 46 of the Convention, to adopt any measures over and above the just satisfaction awarded by the Court, in order to erase the consequences for the applicant of the violations found;

Noting nevertheless with interest the ongoing reflection regarding the necessity of introducing into Spanish law a clear possibility of reopening proceedings following judgments of the European Court;

Considering furthermore the information provided by Spain concerning the general measures taken to prevent new violations of the Convention similar to that found by the Court in this case (see Appendix);

Declares that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2005)94

Information provided by the Government of Spain during the examination of the P erote P ellon case

by the Committee of Ministers

Situation of the applicant and the question of individual measures:

The government recalls that the violation in this case was due to objectively justified doubts regarding the impartiality of the Central Military Court which sentenced the applicant on 9 July 1997 to seven years ' imprisonment for the crime of revealing secrets or information concerning national security or defence , and cashiered him from the army.

The government considers that, under current Spanish law, it appears impossible to reopen the domestic judicial proceedings found by the European Court to be in violation of the Convention. It recalls however that, on 19 December 1991, the Constitutional Court ordered such reopening in another case on the ground that to maintain the conviction imposed in violation of the Convention would be incompatible with the Spanish constitutional order (Barbera, Messengué and Jabardo against Spain , Resolution DH(9 4)84). However, this jurisprudence was subsequently overruled (see the Constitutional Court ' s judgment of 11 March 1999 ), thus making the reopening of proceedings impossible.

The government is aware of potential problems under the Convention which may be caused by the present situation and is considering possible changes to take account of the Committee of Ministers ' Recommendation R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights.

Turning to the applicant ' s situation in the present case, the applicant was released on parole on 15 April 1999 after having served three quarters of his sentence. No claim for individual measures to erase possible consequences of the violation has been submitted by the applicant either to domestic courts or to the Convention organs following the European Court ' s judgment of 25 July 2002 . In view of these circumstances, no need for further specific individual measures arises in this specific case.

General measures:

Following the European Court ' s judgment, Law No. 4/1987 on the competence and organisation of military courts was amended by a new Law No. 9/2003 of 15 July 2003 . These amendments provide, inter alia , additional safeguards as regards the composition of military courts and the procedural rules applicable by military judges sitting on such courts (Articles 39, 41, 49 and 51). The new Law thus reduces the number of judges sitting at appeal from 5 to 3 with a view to avoiding the situation in which the same judge hears a case at first instance and at appeal.

In addition, the judgment of the European Court of Human Rights has been sent out to the Constitutional Court and the General Judicial Council, and has been published in translation in the Official Journal of the Ministry of Justice No. 1955 of 15 December 2003 .

The Government of Spain concludes that the measures taken will prevent the repetition of any violations similar to that found in this case and that Spain has therefore fulfilled its obligations under Article 46, paragraph 1, of the Convention.