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CASE OF BARBERÀ, MESSEGUÉ AND JABARDO AGAINST SPAIN

Doc ref: 10590/83 • ECHR ID: 001-55605

Document date: November 16, 1994

Inbound citations: 1
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Cited paragraphs: 0
•
Outbound citations: 0

CASE OF BARBERÀ, MESSEGUÉ AND JABARDO AGAINST SPAIN

Doc ref: 10590/83 • ECHR ID: 001-55605

Document date: November 16, 1994

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights and

Fundamental Freedoms (hereinafter referred to as "the Convention),

Having regard to the judgments of the European Court of Human

Rights in the Barberà, Messegué and Jabardo case delivered on

6 December 1988 and on 13 June 1994 and transmitted the same days

to the Committee of Ministers;

Recalling that the case originated in three applications

against Spain lodged with the European Commission of Human Rights

on 22 July 1983 under Article 25 (art. 25) of the Convention by

Mr Francesc-Xavier Barberà, Mr Antonino Messegué and

Mr Ferràn Jabardo, all Spanish nationals, and that the Commission

declared admissible their complaints that they had not received a

fair trial before an independent and impartial tribunal;

Recalling that the case was brought before the Court by the

Commission on 12 December 1986 and by the Government of Spain

on 29 January 1987;

Whereas in its judgment of 6 December 1988 the Court:

- rejected unanimously, on the ground of estoppel and because

it was raised out of time, the government's objection that domestic

remedies had not been exhausted in respect of the complaint

concerning the change of membership of the Audiencia Nacional

without notice;

- held unanimously that the applicants had not exhausted

domestic remedies in respect of their complaints concerning the

substitute presiding judge of the Audiencia Nacional;

- rejected unanimously, on the ground of estoppel and, in

part, because it was raised out of time and was unfounded, the

government's objection that domestic remedies had not been

exhausted in that the applicants did not apply to the Audiencia

Nacional for an adjournment of the trial;

- rejected by seventeen votes to one, as unfounded, the

remainder of the government's objection that domestic remedies had

not been exhausted;

- held by ten votes to eight that there had been a breach of

Article 6, paragraph 1 (art. 6-1);

- held unanimously that there had been no breach of Article 6,

paragraph 2 (art. 6-2);

- held unanimously that the question of the application of

Article 50 (art. 50) was not ready for decision;

Whereas in its judgment of 13 June 1994 the Court:

- held by thirteen votes to three that the respondent state

was to pay, within three months, for damage, 8 000 000 pesetas to

Mr Barberà, 8 000 000 pesetas to Mr Messegué and 4 000 000 pesetas

to Mr Jabardo;

- held unanimously that the respondent state was to pay,

within three months, for costs and expenses, 4 500 000 pesetas to

the three applicants jointly, less 5 876 French francs already

received from the Council of Europe;

- dismissed unanimously the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of the

Convention;

Having invited the Government of Spain to inform it of the

measures which had been taken in consequence of the judgments

of 6 December 1988 and 13 June 1994, having regard to Spain's

obligation under Article 53 (art. 53) of the Convention to abide by

them;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Spain gave the Committee

information about the measures taken in consequence of the

judgments, which information appears in the appendix to this

resolution;

Having satisfied itself that the Government of Spain paid the

applicants, within the time-limit set, the sums provided for in the

judgment of 13 June 1994,

Declares, after having taken note of the information supplied

by the Government of Spain, that it has exercised its functions

under Article 54 (art. 54) of the Convention in this case.

Appendix to Resolution DH (94) 84

Information provided by the Government of Spain

during the examination of the Barberà, Messegué and Jabardo case

by the Committee of Ministers

In a judgment of 16 December 1991, the Constitutional Court

ordered the reopening of the proceedings before the Audiencia

Nacional in the applicants' case. By judgment of 30 October 1993,

the Audiencia Nacional acquitted the applicants as there was not

sufficient evidence against them. The details of the domestic

proceedings are exposed in paragraphs 4 and 5 of the Court's

judgment of 13 June 1994.

The problems of a general nature raised by the Court in its

judgment of 6 December 1988 have been resolved by legislative

changes and by the development of the case-law of the

Constitutional Court and the Supreme Court.

The organic law relating to the judicial power

(of 1 July 1985, No. 6/1985) has improved the system for the

protection of fundamental rights. This law has introduced the

possibility of cassation on the ground that a constitutional right

has been infringed (Article 5) as well as the possibility to

request the annulment of judicial acts which violate the principle

of fair hearing, the right to be assisted by counsel or the rights

of the defence to the extent that these violations have unduly

deprived the accused of his means of defence (Articles 238-243).

This enactment also contains new rules regarding the substitution

of judges (Articles 207-216).

Two other organic laws (of 25 May 1988, Nos. 3 and 4/1988)

have reformed the Criminal Code and the Code of Criminal Procedure

by abrogating the previous Act of 24 December 1984 concerning the

actions of armed bands and terrorist elements. In the context of

criminal proceedings engaged to repress the crimes defined by the

new legislation, the judge may only extend the time of arrest by

forty-eight hours, instead of by seven days as was previously

authorised. Total isolation of the person detained may not

prejudice the rights of the defence (Article 520 bis of the

Code of Criminal Procedure).

The habeas corpus procedure has been regulated by an organic

law (of 24 May 1984, No. 6/1984) so as to require that any person

who claims to have been illegally detained has immediate access to

a judge.

The Code of Criminal Procedure has been reformed by another

organic law (of 28 December 1988, No. 7/1988) which has clearly

separated the judicial function of investigation from that of

judgment, hereby bringing Spanish law into line with the case-law

of the European Court of Human Rights. The new law has also

increased the role of the prosecution during the investigation

phase (Article 781) and has established a second criminal

jurisdiction competent to deal with cases involving crimes carrying

a maximum sentence of six years imprisonment (Articles 795.2,

3 and 8).

The recent case-law of the Constitutional Court and of the

Supreme Court requires constantly the strict observance of the

rights of the accused, in particular with regard to the principle

of accusatorial procedure, the equality of arms (adversary

hearings), publicity, the presumption of innocence and the rights

of the defence. The application of these guarantees is guided by

the case-law of the European Court of Human Rights since the

Convention, as interpreted by the European Court, is directly

applicable in Spain, and the judgments of the European Court are

also important sources of inspiration for the interpretation of the

fundamental rights protected by the Spanish Constitution (see the

judgments of the Constitutional Court of 27 September and

21 December 1989 and of 14 October 1990, and the judgments of the

Supreme Court of 11 March and 19 July 1988, of 19 January and

30 June 1989 and of 14 September 1990).

LEXI

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