Resolution ResDH(2005) 95

concerning the judgment of the European Court of Human Rights of 17 June 2003 (final on 24 September 2003 ) in the case of P escador Valero 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”),

Recalling the judgment of the European Court of Human Rights in the Pescador Valero case delivered on 17 January 2003 and transmitted to the Committee of Ministers once it had become final under Article 46 of the Convention;

Recalling that the judgment of the Court became final on 24 September 2003 since, at this date, the government of the respondent state was informed that the request for a re-hearing before the Grand Chamber had been dismissed;

Recalling that the case originated in an application (No. 62435/00) against Spain , lodged with the European Court of Human Rights on 20 September 2000 under Article 34 of the Co n vention by Mr Sixto José Pescador Valero , a Spanish national, and that the Court declared admissible the complaint concerning lack of impartiality of a judge of the High Court Justice which had examined and dismissed the applicant ' s appeal against his removal from an administrative post at the local university, the judge in question also being a professor at the same university;

Whereas in its judgment of 17 June 2003 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention;

- 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, 2 000 euros in respect of non-pecuniary damage 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 17 June 2003 , 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 11 December 2003, within the time-limit set, the government of the respondent state had paid the a p plicant the sum provided for in the judgment of 17 June 2003,

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)95

Information provided by the Government of Spain during the examination of the P escador Valero case

By the Committee of Ministers

Situation of the applicant and the question of individual measures:

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(94)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, 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 17 June 2003 . In view of these circumstances, no need for further specific individual measures arises in this specific case.

General measures:

In view of particular circumstances of the present case, the government is of the opinion that new, similar violations could be prevented through the publication of the European Court ' s judgment and its dissemination to the authorities concerned. Accordingly, the judgment was published (in Spanish translation) in the Official Journal of the Ministry of Justice No. 1959 of 1 February 2003 .

The Government of Spain therefore considers that Spain has fulfilled its obligations under Article 46, paragraph 1, of the Convention in the present case.