JOINT PARTLY DISSENTING OPINION OF JUDGES MATSCHER AND PETTITI

(Translation)

By a judgment of the Audiencia Nacional of 15 January 1982 the three applicants were found guilty of having committed, on 9 May 1977 , a murder in circumstances which made this crime particularly abhorrent. They were sentenced to long terms of imprisonment. This judgment was partly quashed and partly upheld by the Supreme Court. However, the applicants served only part of their sentence. Indeed they had been released before the retrial had taken place (from 29 June 1989 to 5 April 1990 and then from 20 July 1990 ).

Following a judgment of the European Court of 6 December 1988 (Series A no. 146), which found that the criminal proceedings had in several respects infringed the rights guaranteed under Article 6 (art. 6) of the Convention, on 16 December 1991 the Constitutional Court set aside the national decisions in question and remitted the case to the Audiencia Nacional for retrial.

By a decision of 30 October 1993 the applicants were acquitted, ultimately for lack of evidence, as can be seen clearly from the relevant judgment. More than fifteen years after the events and in view of the fact that in addition witnesses had either died in the meantime or were prevented from testifying by their state of health, their evidence was no longer available.

In our view, the loss of opportunity which the present judgment found to be a ground for awarding compensation has to be assessed not only with reference to the European Court ’ s judgment on the merits and the decision of the Constitutional Court, but also on the basis of the effect of the applicants ’ conduct, because the circumstances of the second trial were totally different. Moreover, the Court did not find any breach of the principle of presumption of innocence.

In any case, the exemplary way in which the Spanish authorities gave effect to the European Court ’ s judgment should be particularly stressed.

In these circumstances we consider that, inasmuch as they benefited from a complete retrial, the applicants obtained what they were entitled to under the Convention, so that the finding of the violation, given the consequences which ensued therefrom , constitutes just satisfaction within the meaning of Article 50 (art. 50). It was not therefore necessary to award compensation for pecuniary and non-pecuniary damage.

PARTLY DISSENTING OPINION OF MR TORRES BOURSAULT, AD HOC JUDGE

(Translation)

I cannot agree with the majority as regards point 1 of the operative provisions of the judgment. It is not, in my view, consistent with the terms of Article 50 (art. 50) of the Convention, which provides for the award of "just satisfaction" to the party injured by the violation "if the internal law ... allows only partial reparation to be made for the consequences of this decision", a rule which does not require interpretation (in claris non fit interpretatio ) and which, in any event, may under no circumstances be applied in a way that conflicts with its literal meaning.

1.   Following the Court ’ s judgment of 6 December 1988 , the Spanish Constitutional Court adopted the first appropriate measure to afford full reparation for the consequences of the judicial decision which was at the origin of the violation of Article 6 para. 1 (art. 6-1) found by the European Court in so far as it ordered a retrial. At that retrial the Audiencia Nacional - this time without committing a breach of the Convention - afforded full reparation in internal law by its acquittal, which has become final. The Court declared that the trial contravened the requirements of Article 6 para. 1 (art. 6-1) of the Convention, but the consequences of the violation found were made good under internal law in so far as a retrial was conducted in strict compliance with the Convention. This was recognised by: the Delegate of the Commission (see letter of 22 October 1993: "The Constitutional Court ’ s judgment of 16 December 1991 makes reparation as far as possible for all the consequences of the violation of Article 6 para. 1 (art. 6-1) of the Convention found by the Court in its judgment"); and the applicants ’ lawyer (see letter of 1 October 1992: "by declaring void the proceedings which led to the conviction of 15 January 1982, the Spanish Constitutional Court ’ s judgment ... represented the most effective possible execution, by way of restitutio in integrum of the European Court ’ s judgment").

If the applicants consider at this stage, in contradiction with their earlier arguments adduced before the Court, that the reparation afforded them is still insufficient, then they should seek compensation through the remedy available to them under Spanish law, namely under sections 292 et seq. of the Judicature Act, deriving from Article 9 para. 3 of the Constitution. To date the applicants have not had recourse to this procedure which would moreover be fully applicable to them and which has already produced results in numerous other cases. In any case, it is clear from Article 50 (art. 50) of the Convention that so long as there exists an adequate means of redress in domestic law, there is an obligation to seek the fullest possible restitutio in integrum through that means. It is only in the alternative, where the decision proves unsatisfactory for the claimants and, in any event, if the domestic remedies do not exist or are insufficient or ineffective ("if the internal law ... allows only partial reparation" under the terms of Article 50) (art. 50) to obtain the most complete reparation possible that it will be for the Court ("if necessary") - and, I repeat, in the alternative - to determine the matter as the final instance, as indeed was maintained by the Delegate of the Commission.

2.   As regards the sum awarded to the applicants for just satisfaction and in compensation for having served part of the prison sentence imposed on them by a judgment of the Audiencia Nacional which was declared to be contrary to the Convention, I must again express my disagreement with the majority. If it falls to the Court to award just satisfaction under Article 50 (art. 50) in the form of compensation, such an amount should be commensurate and proportional, regard being had to all the circumstances of the case assessed on an equitable basis. It should not represent an unjustifiable enrichment for the applicants or be a sum that will be regarded as excessive by public opinion, because of its size in absolute terms and the disproportion between it and compensation awarded in cases of damage of the same nature in other legal systems.

[*]  The case is numbered 24/1986/122/171-173.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The third number indicates the case's position on the list of cases referred to the Court since its creation and the last two numbers refer to the list of the corresponding originating applications to the Commission.

[*]   Former Rule 50 of the Rules of Court; the competent Chamber had decided to relinquish jurisdiction in favour of the plenary Court on 23 September 1987 .