CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 21 octobre 2013

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SPAIN   (Application no. 42750/09)           JUDGMENT       STRASBOURG   21 October 2013         In the case of Del Río Prada v. Spain, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Guido Raimondi,   Ineta Ziemele,   Mark Villiger,   Isabelle Berro-Lefèvre,   Elisabeth Steiner,   George Nicolaou,   Luis López Guerra,   Ledi Bianku,   Ann Power-Forde,   Işıl Karakaş,   Paul Lemmens,   Paul Mahoney,   Aleš Pejchal,   Johannes Silvis,   Valeriu Griţco,   Faris Vehabović, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 20 March 2013 and 12 September 2013, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 42750/09) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Ms Inés del Río Prada (“the applicant”), on 3 August 2009. 2.     The applicant was represented by Mr S. Swaroop, Mr M. Muller and Mr M. Ivers, lawyers practising in London, Mr D. Rouget, a lawyer practising in Bayonne, Ms A. Izko Aramendia, a lawyer practising in Pamplona and Mr   U.   Aiartza Azurtza, a lawyer practising in San Sebastián. The Spanish Government (“the Government”) were represented by their Agent, Mr   F.   Sanz Gandásegui, and their co-Agent, Mr I. Salama Salama, State Counsel. 3.     The applicant alleged in particular that, since 3   July 2008, her continued detention had been neither “lawful” nor “in accordance with a procedure prescribed by law” as required by Article 5 § 1 of the Convention. Relying on Article 7, she also complained that what she considered to be the retroactive application of a new approach adopted by the Supreme Court after her conviction had increased the length of her imprisonment by almost nine years. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). On 19 November 2009 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). On 10   July 2012 a Chamber of that Section, composed of Josep Casadevall, President, Corneliu Bîrsan, Alvina Gyulumyan, Egbert Myjer, Ján Šikuta, Luis López Guerra and Nona Tsotsoria, judges, and Santiago Quesada, Section Registrar, gave judgment. They unanimously declared the complaints under Article 7 and Article 5 § 1 of the Convention admissible and the remainder of the application inadmissible, then proceeded to find a violation of those provisions. 5.     On 4 October 2012 the Court received a request from the Government for the case to be referred to the Grand Chamber. On 22 October 2012 a panel of the Grand Chamber decided to refer the case to the Grand Chamber (Article 43 of the Convention). 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicant and the Government each filed further observations (Rule 59 § 1) on the merits. 8.     In addition, third-party comments were received from Ms Róisín Pillay on behalf of the International Commission of Jurists (ICJ), who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 20 March 2013 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   I. Salama Salama ,   Co-Agent , Mr   F. Sanz Gandásegui ,   Agent , Mr   J. Requena Juliani, Mr   J. Nistal Buron ,   Advisers ; (b)     for the applicant Mr   M. Muller , Mr   S. Swaroop , Mr   M. Ivers ,   Counsel , Mr   D. Rouget , Ms   A. Izko Aramendia , Mr   U. Aiartza Azurtza ,   Advisers .   The Court heard addresses by Mr Muller, Mr Swaroop, Mr Ivers and Mr   Salama Salama, as well as replies from Mr Muller, Mr   Swaroop, Mr   Ivers and Mr   Sanz Gandásegui to its questions. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1958. She is serving a prison sentence in the region of Galicia. 11.     In eight separate sets of criminal proceedings before the Audiencia Nacional [1] , the applicant was sentenced as follows. (a)     In judgment no. 77/1988 of 18 December 1988: for being a member of a terrorist organisation, to eight years’ imprisonment; for illegal possession of weapons, to seven years’ imprisonment; for possession of explosives, to eight years’ imprisonment; for forgery, to four years’ imprisonment; and for using forged identity documents, to six months’ imprisonment. (b)     In judgment no. 8/1989 of 27 January 1989: for damage to property, in conjunction with six counts of grievous bodily harm, one of causing bodily harm and nine of causing minor injuries, to sixteen years’ imprisonment. (c)     In judgment no. 43/1989 of 22 April 1989: for a fatal attack and for murder, to twenty-nine years’ imprisonment on each count. (d)     In judgment no. 54/1989 of 7 November 1989, for a fatal attack, to thirty years’ imprisonment; for eleven murders, to twenty-nine years for each murder; for seventy-eight attempted murders, to twenty-four years on each count; and for damage to property, to eleven years’ imprisonment. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973, the maximum term to be served ( condena ) should be thirty years. (e)     In judgment no. 58/1989 of 25 November 1989: for a fatal attack and two murders, to twenty-nine years’ imprisonment in respect of each charge. The Audiencia Nacional ordered that in accordance with Article 70.2 of the Criminal Code of 1973, the maximum term to be served ( condena ) should be thirty years. (f)     In judgment no. 75/1990 of 10 December 1990: for a fatal attack, to thirty years’ imprisonment; for four murders, to thirty years’ imprisonment on each count; for eleven attempted murders, to twenty years’ imprisonment on each count; and on the charge of terrorism, to eight years’ imprisonment. The judgment indicated that for the purposes of the custodial sentences the maximum sentence provided for in Article 70.2 of the Criminal Code of 1973 should be taken into account. (g)     In judgment no. 29/1995 of 18 April 1995: for a fatal attack, to twenty-eight years’ imprisonment, and for attempted murder, to twenty years and one day. The court again referred to the limits provided for in Article 70 of the Criminal Code. (h)     In judgment no. 24/2000 of 8 May 2000: for an attack with intent to murder, to thirty years’ imprisonment; for murder, to twenty-nine years’ imprisonment; for seventeen attempted murders, to twenty-four years’ imprisonment on each count; and for damage to property, to eleven years’ imprisonment. The judgment stated that the sentence to be served should not exceed the limit provided for in Article 70.2 of the Criminal Code of 1973. In determining which criminal law was applicable (the Criminal Code of 1973, which was applicable at the material time, or the later Criminal Code of 1995), the Audiencia Nacional considered that the more lenient law was the 1973 Criminal Code, because of the maximum term to be served as provided for in Article 70.2 of that Code, combined with the remissions of sentence for work done in detention as provided for in Article 100. 12.     In all, the terms of imprisonment to which the applicant was sentenced for these offences, committed between 1982 and 1987, amounted to over 3,000 years. 13.     The applicant was held in pre-trial detention from 6 July 1987 to 13   February 1989 and began to serve her first sentence after conviction on 14   February 1989. 14.     By a decision of 30 November 2000, the Audiencia Nacional notified the applicant that the legal and chronological links between the offences of which she had been convicted made it possible to group them together ( acumulación de penas ) as provided for in section 988 of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in conjunction with Article   70.2 of the 1973 Criminal Code, in force when the offences were committed. The Audiencia Nacional fixed the maximum term to be served by the applicant in respect of all her prison sentences combined at thirty years. 15.     By a decision of 15 February 2001, the Audiencia Nacional set the date on which the applicant would have fully discharged her sentence ( liquidación de condena ) at 27   June 2017. 16.     On 24 April 2008, taking into account the 3,282 days’ remission to which she was entitled for the work she had done since 1987, the authorities at Murcia Prison, where the applicant was serving her sentence, proposed to the Audiencia Nacional that she be released on 2   July 2008. Documents submitted to the Court by the Government show that the applicant was granted ordinary and extraordinary remissions of sentence by virtue of decisions of the judges responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria at first instance and Audiencias Provinciales on appeal) in 1993, 1994, 1997, 2002, 2003 and 2004, for cleaning the prison, her cell and the communal areas and undertaking university studies. 17.     However, on 19   May 2008 the Audiencia Nacional rejected that proposal and asked the prison authorities to submit a new date for the applicant’s release, based on a new precedent (known as the “Parot doctrine”) set by the Supreme Court in its judgment no. 197/2006 of 28   February   2006. According to this new approach, sentence adjustments ( beneficios ) and remissions were no longer to be applied to the maximum term of imprisonment of thirty years, but successively to each of the sentences imposed (see “Relevant domestic law and practice”, paragraphs   39-42 below). 18.     The Audiencia Nacional explained that this new approach applied only to people convicted under the Criminal Code of 1973 to whom Article   70.2 thereof had been applied. As that was the applicant’s case, the date of her release was to be changed accordingly. 19.     The applicant lodged an appeal ( súplica ) against that decision. She argued, inter alia , that the application of the Supreme Court’s judgment was in breach of the principle of non-retroactive application of criminal-law provisions less favourable to the accused, because instead of being applied to the maximum term to be served, which was thirty years, remissions of sentence for work done in detention were henceforth to be applied to each of the sentences imposed. The effect, she argued, would be to increase the term of imprisonment she actually served by almost nine years. The Court has not been apprised of the outcome of this appeal. 20.     By an order of 23 June 2008, based on a new proposal by the prison authorities, the Audiencia Nacional set the date for the applicant’s final release ( licenciamiento definitivo ) at 27 June 2017. 21.     The applicant lodged a súplica appeal against the order of 23   June 2008. By a decision of 10 July 2008 the Audiencia Nacional rejected the applicant’s appeal, explaining that it was not a question of limits on prison sentences, but rather of how to apply reductions of sentence in order to determine the date of a prisoner’s release. Such reductions were henceforth to be applied to each sentence individually. Lastly, the Audiencia Nacional considered that the principle of non-retroactive application had not been breached because the criminal law applied in this case had been that in force at the time of its application. 22.     Relying on Articles 14 (prohibition of discrimination), 17 (right to liberty), 24 (right to effective judicial protection) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. By a decision of 17 February 2009, the Constitutional Court declared the appeal inadmissible on the ground that the applicant had not demonstrated the constitutional relevance of her complaints. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Constitution 23.     The relevant provisions of the Constitution read as follows: Article 9 “... 3.     The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal enactments, the non-retroactivity of punitive measures that are unfavourable to or restrict individual rights, the certainty that the rule of law will prevail, the accountability of the public authorities and the prohibition against arbitrary action on the part of the latter.” Article 14 “All Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” Article 17 “1.     Every person has the right to liberty and security. No one may be deprived of his or her liberty except in accordance with the provisions of this Article and in the cases and in the manner prescribed by law. ...” Article 24 “1.     All persons have the right to obtain effective protection by the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence. ...” Article 25 “1.     No one may be convicted or sentenced for any act or omission which at the time it was committed did not constitute a serious or petty criminal offence or administrative offence according to the law in force at that time. 2.     Punishments entailing imprisonment and security measures shall be aimed at rehabilitation and social reintegration and may not consist of forced labour. While serving their sentence, convicted persons shall enjoy the fundamental rights set out in this Chapter, with the exception of those expressly limited by the terms of the sentence, the purpose of the punishment and the prison law. In all circumstances, they shall be entitled to paid employment and to the corresponding social-security benefits, as well as to access to cultural activities and the overall development of their personality. ...” B.     The law applicable under the Criminal Code of 1973 24.     The relevant provisions of the Criminal Code of 1973, as in force at the time the offences were committed, read as follows: Article 70 “When all or some of the sentences [ penas ] imposed ... cannot be served simultaneously by a convicted person, the following rules shall apply: 1.     In imposing the sentences [ penas ], where possible the order to be followed for the purposes of their successive completion by the convicted person is that of their respective severity, the convicted person going on to serve the next sentence when the previous one has been served or extinguished by pardon ... 2.     Notwithstanding the previous rule, the maximum term to be served [ condena ] by a convicted person shall not exceed three times the length of the most serious of the sentences [ penas ] imposed, the others ceasing to have effect once this maximum term, which may not exceed thirty years, is attained. The above limit shall be applied even where the sentences [ penas ] have been imposed in different proceedings, if the facts, because they are connected, could have been tried as a single case.” Article 100 (as amended by Organic Law [ Ley Orgánica ] no. 8/1983) “Once his judgment or conviction has become final, any person sentenced to imprisonment [ reclusión, prisión or arresto mayor [2] ] may be granted remission of sentence [ pena ] in exchange for work done while in detention. In serving the sentence [ pena ] imposed the prisoner shall be entitled, with the approval of the judge responsible for the execution of sentences [ Juez de Vigilancia ], to one day’s remission for every two days worked in detention, and the time thus deducted shall be taken into account when granting release on licence. This benefit shall also apply, for the purposes of discharging [ liquidación ] the term of imprisonment to be served [ condena ], to prisoners who were held in pre-trial detention. The following persons shall not be entitled to remission for work done in detention: 1.     prisoners who escape or attempt to escape while serving their sentence [ condena ], even if they do not succeed. 2.     prisoners who repeatedly misbehave while serving their sentence [ condena ].” 25.     The relevant provision of the Criminal Procedure Act in force at the material time reads as follows: Section 988 “... When a person found guilty of several criminal offences is convicted, in different sets of proceedings, of offences that could have been tried in a single case, in accordance with section 17 of this Act, the judge or court which delivered the last judgment convicting the person concerned shall, of their own motion or at the request of the public prosecutor or the convicted person, fix the maximum term to be served in respect of all the sentences imposed, in accordance with Article 70.2 of the Criminal Code ...” 26.     The right to remission of sentence for work done in detention was provided for in the Prison Regulations of 2 February 1956, the relevant provisions of which (Articles 65-73) were applicable at the time the offences were committed, by virtue of the second transitional provision of the 1981 Prison Regulations. The provisions concerned read as follows: Article 65 “1.     Under Article 100 of the Criminal Code, once his judgment or conviction has become final, any person sentenced to [imprisonment] may be granted remission of sentence [ pena ] in exchange for work done while in detention. ... 3.     The following persons shall not be entitled to remission for work done in detention: (a)     prisoners who escape or attempt to escape while serving their sentence [ condena ], even if they do not succeed. (b)     prisoners who repeatedly misbehave while serving their sentence [ condena ]. This provision applies to prisoners who commit a further serious or very serious disciplinary offence when they have not yet expunged a previous offence ...” Article 66 “1.     Whatever the regime to which he is subject, any prisoner may be granted remission of sentence for work done in detention provided that he meets the legal conditions. In such cases the detainee shall be entitled, for the purposes of his final release, to one day’s remission for every two days’ work done in detention. The total period of entitlement to remission shall also be taken into account when granting release on licence. 2.     The prison’s supervisory body shall submit a proposal to the Patronato de Nuestra Señora de la Merced . When the proposal is approved the days worked shall be counted retroactively in the prisoner’s favour, from the day when he started to work. [3] ” Article 68 “Be it paid or unpaid, intellectual or manual, done inside the prison or outside ..., any work done by prisoners must be useful.” Article 71 “... 3.     Extraordinary remissions of sentence may be granted for special reasons of discipline and productivity at work ..., within the limit of one day for each day worked and 175 days per year of sentence actually served ...” Article 72 “Remissions of sentence may be granted for intellectual work: (1)     for undertaking and succeeding in religious or cultural studies organised by the management; (2)     for joining an arts, literature or science club set up by the prison authorities; (3)     for engaging in intellectual activities; (4)     for producing original works of an artistic, literary or scientific nature. ...” Article 73 “The following prisoners shall forfeit the right to remission of sentence for work done in detention: (1)     prisoners who escape or attempt to escape. They shall forfeit the right to earn any future remission of sentence; (2)     prisoners who commit two serious or very serious disciplinary offences ... Any remission already granted, however, shall be counted towards reducing the corresponding sentence or sentences. 27.     Article 98 of the Criminal Code of 1973, regulating the release of prisoners on licence, read as follows: “Release on licence may be granted to prisoners sentenced to more than one year’s imprisonment who: (1)     are in the final phase of the term to be served [ condena ]; (2)     have already served three-quarters of the term to be served; (3)     deserve early release for good behaviour; and (4)     afford guarantees of social reintegration.” 28.     Article 59 of the 1981 Prison Regulations (Royal Decree no.1201/1981), which explained how to calculate the term of imprisonment (three-quarters of the sentence imposed) to be served in order for a prisoner to be eligible for release on licence, read as follows: Article 59 “In calculating three-quarters of the sentence [ pena ], the following rules shall apply: (a)     for the purposes of release on licence, the part of the term to be served [ condena ] in respect of which a pardon has been granted shall be deducted from the total sentence [ pena ] imposed, as if that sentence had been replaced by a lesser one; (b)     the same rule shall apply to sentence adjustments [ beneficios penitenciarios ] entailing a reduction of the term to be served [ condena ]; (c)     when a person is sentenced to two or more custodial sentences, for the purposes of release on licence the sum of those sentences shall be treated as a single term of imprisonment to be served [ condena ]. ...” C.     The law applicable following the entry into force of the Criminal Code of 1995 29.     Promulgated on 23 November 1995, the Criminal Code of 1995 (Organic Law no. 10/1995) replaced the Criminal Code of 1973. It entered into force on 24 May 1996. 30.     The new Code did away with remissions of sentences for work done in detention. However, the first and second transitional provisions of the new Code provided that prisoners convicted under the 1973 Code were to continue to enjoy that privilege even if their conviction was pronounced after the new Code entered into force. The transitional provisions concerned read as follows: First transitional provision “Crimes and lesser offences committed prior to the entry into force of the present Code shall be tried in conformity with the [Criminal Code of 1973] and other special criminal laws repealed by the present Code. As soon as this Code enters into force its provisions shall be applicable if they are more favourable to the accused.” Second transitional provision “In order to determine which is the more favourable law, regard shall be had to the penalty applicable to the charges in the light of all the provisions of both Codes. The provisions concerning remission of sentence for work done in detention shall apply only to persons convicted under the old Code. They shall not be available to persons tried under the new Code ...” 31.     Under the first transitional provision of the 1996 Prison Regulations (Royal Decree no. 190/1996), Articles 65-73 of the 1956 Regulations remained applicable to the execution of sentences imposed under the 1973 Criminal Code and to the determination of the more lenient criminal law. 32.     The 1995 Criminal Code introduced new rules governing the maximum duration of prison sentences and the measures by which they could be adjusted ( beneficios penitenciarios ). Those rules were amended by Organic Law no. 7/2003 introducing reforms to ensure the full and effective execution of sentences. The amended provisions of the Criminal Code which are relevant to the present case read as follows: Article 75 “When some or all of the sentences [ penas ] for the different offences cannot be served concurrently, they shall, as far as possible, be served consecutively, in descending order of severity.” Article 76 “1.     Notwithstanding what is set forth in the preceding Article, the maximum term to be served [ condena ] by a convicted person shall not exceed three times the length of the most serious of the sentences [ penas ] imposed, the others ceasing to have effect once this maximum term, which may not exceed twenty years, is attained. Exceptionally, the maximum limit shall be: (a)     twenty-five years when a person has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence of up to twenty years; (b)     thirty years when a person has been found guilty of two or more crimes and one of them is punishable by law with a prison sentence exceeding twenty years; (c)     forty years when a person has been found guilty of two or more crimes and at least two of them are punishable by law with a prison sentence exceeding twenty years; (d)     forty years when a person has been found guilty of two or more crimes ... of terrorism ... and any of them is punishable by law with a prison sentence exceeding twenty years. 2.     The above limit shall be applied even where the sentences [ penas ] have been imposed in different proceedings, if the facts, because they are connected or because of when they were committed, could have been tried as a single case.” Article 78 “1.     If, as a result of the limitations provided for in Article 76 § 1, the term to be served is less than half the aggregate of all the sentences imposed, the sentencing judge or court may order that decisions concerning adjustments of sentence [ beneficios penitenciarios ], day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence should take into account all of the sentences [ penas ] imposed. 2.     Such an order shall be mandatory in the cases referred to in paragraphs (a), (b), (c) and (d) of Article 76 § 1 of this Code when the term to be served is less than half the aggregate of all the sentences imposed. ...” 33.     According to the explanatory memorandum on Law no. 7/2003, Article 78 of the Criminal Code is meant to improve the efficacy of punishment for the most serious crimes: “... Article 78 of the Criminal Code is amended so that for the most serious crimes the sum total of all the sentences imposed is taken into account for the purposes of adjustments of sentence, day-release permits, pre-release classification and the calculation of the time remaining to be served prior to release on licence. The purpose of this amendment is to improve the efficacy of the penal system vis-à-vis people convicted of several particularly serious crimes, that is to say those provided for in Article 76 of the Criminal Code (namely twenty-five, thirty or forty years’ actual imprisonment) when the term to be served amounts to less than half the total duration of all the sentences imposed. Where these limits are not applied, however, the courts may use their full discretion. In application of this rule a person sentenced to one hundred, two hundred or three hundred years’ imprisonment will, in reality, effectively and fully serve the maximum term [ condena ] applicable.” 34.     Article 90 of the Criminal Code of 1995 (as amended by Organic Law no. 7/2003) regulates release on licence. It subjects release on licence to conditions similar to those provided for in the Criminal Code of 1973 (pre-release classification, completion of three-quarters of the sentence, good behaviour and good prospects of social reintegration), but it also requires offenders to have complied with their obligations in respect of civil liability. In order to have good prospects of social reintegration offenders convicted of terrorism or organised crime must have unequivocally demonstrated their disavowal of terrorist methods and have actively cooperated with the authorities. This could take the form of a statement expressly repudiating the offences they committed and renouncing violence, together with an explicit appeal to the victims to forgive them. Unlike the new rules on the maximum duration of the sentence to be served and the conditions for applying sentence adjustments in the event of multiple convictions (Articles 76 and 78 of the Criminal Code), Article 90 of the Code is applicable immediately, regardless of when the offences were committed or the date of conviction (single transitional provision of Law no.   7/2003). D.     The case-law of the Supreme Court 1.     The case-law prior to the “Parot doctrine” 35.     In an order of 25 May 1990 the Supreme Court considered that the combining of sentences in application of Article 70.2 of the Criminal Code of 1973 and section 988 of the Criminal Procedure Act concerned not the “execution” but the fixing of the sentence, and that its application was accordingly a matter for the trial court, not the judge responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria ). 36.     In a judgment of 8 March 1994 (529/1994) the Supreme Court affirmed that the maximum term of imprisonment (thirty years) provided for in Article 70.2 of the Criminal Code of 1973 amounted to a “new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence and remission of sentence, apply”. The Supreme Court referred to Article 59 of the Prison Regulations of 1981, according to which the combination of two custodial sentences was treated as a new sentence for the purposes of release on licence. 37.     In an agreement adopted by the full court on 18 July 1996, following the entry into force of the Criminal Code of 1995, the Criminal Division of the Supreme Court explained that for the purpose of determining which was the more lenient law, regard had to be had to the system of remissions of sentence introduced by the old Code of 1973 when comparing the sentences to be served respectively under that Code and the new Criminal Code of 1995. It added that under Article   100 of the Criminal Code of 1973 a prisoner who had served two days of his sentence was irrevocably considered to have served three days. The application of this rule gave the beneficiary an acquired right. [4] The Spanish courts, which had to apply this criterion to compare the terms to be served respectively under the new and the old Criminal Code, took into account the remissions of sentence granted under the old Code. They accordingly considered that where the remainder of the sentence to be served after deduction of the remissions granted prior to the entry into force of the new Code did not exceed the length of the sentence provided for in the new Code, the latter could not be considered more lenient than the old Code. That approach was confirmed by the Supreme Court in various decisions, including judgments nos. 557/1996 of 18 July 1996 and 1323/1997 of 29 October 1997. 38.     The Supreme Court continued to adopt that interpretation of the maximum term to be served as prescribed in Article 76 of the new Criminal Code of 1995. In judgment no. 1003/2005, delivered on 15   September 2005, it held that “this limit amounts to a new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence, day-release permits and pre-release classification apply”. In the same manner and terms, it stated in judgment no. 1223/2005, delivered on 14 October 2005, that the maximum term to be served “amounts to a new sentence – resulting from but independent of the others – to which the sentence adjustments ( beneficios ) provided for by law, such as release on licence, apply subject to the exceptions provided for in Article 78 of the Criminal Code of 1995”. 2.     The “Parot doctrine” 39.     In judgment no. 197/2006 of 28   February 2006 the Supreme Court set a precedent known as the “Parot doctrine”. The case concerned a terrorist member of ETA (H.   Parot) who had been convicted under the Criminal Code of 1973. The plenary Criminal Division of the Supreme Court ruled that the remissions of sentence granted to prisoners were henceforth to be applied to each of the sentences imposed and not to the maximum term of thirty years provided for in Article 70.2 of the Criminal Code of 1973. The court’s ruling was based in particular on a literal interpretation of Articles   70.2 and 100 of the Criminal Code of 1973 according to which that maximum term of imprisonment was not to be treated as a new sentence distinct from those imposed, or a distinct sentence resulting from those imposed, but rather as the maximum term a convicted person should spend in prison. This reasoning made a distinction between the “sentence” ( pena ) and the “term to be served” ( condena ); the former referred to the sentences imposed taken individually, to which remissions of sentence should be applied, while the latter referred to the maximum term of imprisonment to be served. The Supreme Court also used a teleological argument. The relevant parts of its reasoning read as follows: “... the joint interpretation of rules one and two of Article 70 of the Criminal Code of 1973 leads us to consider that the thirty-year limit does not become a new sentence, distinct from those successively imposed on the convict, or another sentence resulting from all the previous ones , but is the maximum term of imprisonment [ máximo de cumplimiento ] a prisoner should serve in prison. The reasons that lead us to this interpretation are: (a) first, a literal analysis of the relevant provisions leads us to conclude that the Criminal Code by no means considers the maximum term of thirty years to amount to a new sentence to which any reductions to which the prisoner is entitled should apply, for the simple reason that it says no such thing; (b) on the contrary, the sentence [ pena ] and the resulting term of imprisonment to be served [ condena ] are two different things; the wording used in the Criminal Code refers to the resulting limit as the ‘term to be served’ [ condena ], and fixes the different lengths of that maximum ‘term to be served’ [ condena ] in relation to the ‘sentences’ imposed. According to the first rule, that maximum is arrived at in one of two ways: the different sentences are served in descending order of severity until one of the two limits set by the system is attained (three times the length of the heaviest sentence imposed or, in any event, no more than thirty years); (c) this interpretation is also suggested by the wording of the Code, since after having served the successive sentences as mentioned, the prisoner will no longer have to discharge [i.e. serve] the remaining ones [in the prescribed order] once the sentences already served reach the maximum length, which may not exceed thirty years ...; (e) and from a teleological point of view, it would not be rational for the combination of sentences to reduce a long string of convictions to a single new sentence of thirty years, with the effect that an individual who has committed a single offence would be treated, without any justification, in the same way as someone convicted of multiple offences, as in the present case. Indeed, there is no logic in applying this rule in such a way that committing one murder is punished in the same way as committing two hundred murders; (f) were application for a pardon to be made, it could not apply to the resulting total term to be served [ condena ], but rather to one, several or all of the different sentences imposed; in such a case it is for the sentencing court to decide, and not the judicial body responsible for setting the limit (the last one), which shows that the sentences are not combined into one. Besides, the first rule of Article 70 of the Criminal Code of 1973 explains how, in such a case , the sentences must be served successively ‘the convicted person going on to serve the next sentence when the previous one has been extinguished by pardon’; (g) lastly, from a procedural point of view section 988 of the Criminal Procedure Act clearly states that it is a matter of setting the maximum limit of the sentences imposed (in the plural, in keeping with the wording of the law), ‘ fixing the maximum term to be served in respect of all the sentences ’ (the wording is very clear). Which is why the term ‘combination [ refundición ] of the sentences to be served [ condenas ]’ is very misleading and inappropriate. There is no merging of sentences into a single sentence, but the number of years an individual can be expected to serve in respect of multiple sentences is limited by law. This means that the prisoner serves the different sentences, with their respective specificities and with all the corresponding entitlements. That being so, the remissions of sentence for work done in detention as provided for in Article 100 of the Criminal Code of 1973 may be applied to the sentences successively served by the prisoner. The total term to be served [ condena ] is thus served in the following manner: the prisoner begins by serving the heaviest sentences imposed. The relevant adjustments [ beneficios ] and remissions are applied to each of the sentences the prisoner serves. When the first [sentence] has been completed, the prisoner begins to serve the next one, and so on until the limits provided for in Article 70.2 of the Criminal Code of 1973 have been reached, at which point all of the sentences comprised in the total term to be served [ condena ] will have been extinguished. Take, for example, the case of an individual given three prison sentences: thirty years, fifteen years and ten years. The second rule of Article 70 of the Criminal Code of 1973 ... limits the maximum term to be served to three times the most serious sentence or thirty years’ imprisonment. In this case the actual term to be served would be thirty years. The prisoner would begin serving the successive sentences (the total term to be served), starting with the longest sentence (thirty years in this case). If he were granted a ten-year remission for whatever reason, he would have served that sentence after twenty years’ imprisonment, and the sentence would be extinguished; next, the prisoner would start to serve the next longest sentence (fifteen years). With five years’ remission that sentence will have been served after ten years. 20 + 10 = 30. [The prisoner] would not have to serve any other sentence, any remaining sentences ceasing to have effect , as provided for in the applicable Criminal Code, once this maximum term, which may not exceed thirty years, is attained. ” 40.     In the above-mentioned judgment the Supreme Court considered that there was no well-established case-law on the specific question of the interpretation of Article 100 of the Criminal Code of 1973 in conjunction with Article 70.2. It referred to a single precedent, its judgment of 8   March 1994 in which it had considered that the maximum duration provided for in Article 70.2 of the Criminal Code of 1973 amounted to “a new, independent sentence” (see paragraph 36 above). However, the Supreme Court departed from that interpretation, pointing out that that decision was an isolated one and could therefore not be relied on as a precedent in so far as it had never been applied in a consistent manner. Even assuming that its new interpretation of Article 70 of the Criminal Code of 1973 could have been regarded as a departure from its case-law and from previous prison practice, the principle of equality before the law (Article 14 of the Constitution) did not preclude departures from the case-law, provided that sufficient reasons were given. Furthermore, the principle that the criminal law should not be applied retroactively (Article 25 § 1 and Article 9 § 3 of the Constitution) was not meant to apply to case-law. 41.     Judgment no. 197/2006 was adopted by a majority of twelve votes to three. The three dissenting judges appended an opinion stating that the sentences imposed successively were transformed or joined together into another sentence, similar in nature but different in so far as it combined the various sentences into one. That sentence, which they called “the sentence to be served”, was the one resulting from the application of the limit fixed in Article 70.2 of the Criminal Code of 1973, which effectively extinguished the sentences that went beyond that limit. This new “unit of punishment” was the term the prisoner had to serve, to which remission for work done in detention was to be applied. Remissions would therefore affect the sentences imposed, but only once the rules on the consecutive serving of sentences had been applied to them “for the purposes of their completion”. The dissenting judges also pointed out that for the purposes of determining the most lenient criminal law following the entry into force of the Criminal Code of 1995, all Spanish courts, including the Supreme Court (agreements adopted by the plenary Criminal Division on 18 July 1996 and 12 February 1999), had agreed to the principle that reductions of sentence should be applied to the sentence resulting from the application of Article 70.2 of the Criminal Code of 1973 (the thirty-year limit). In application of that principle no fewer than sixteen people convicted of terrorism had recently had their sentences reduced for work done in detention although they had each been given prison sentences totalling over a hundred years. 42.     The dissenting judges considered that the method applied by the majority was not provided for in the Criminal Code of 1973 and therefore amounted to retroactive implicit application of the new Article 78 of the Criminal Code of 1995, as amended by Organic Law no. 7/2003 introducing measures to ensure the full and effective execution of sentences. This new interpretation to the convicted person’s detriment was based on a policy of full execution of sentences which was alien to the Criminal Code of 1973, could be a source of inequalities and was contrary to the settled case-law of the Supreme Court (judgments of 8 March 1994, 15 September 2005 and 14   October 2005). Lastly, the dissenting judges considered that criminal policy reasons could on no account justify such a departure from the principle of legality, even in the case of an unrepentant terrorist murderer as in the case concerned. 3.     Application of the “Parot doctrine” 43.     The Supreme Court confirmed the “Parot doctrine” in subsequent judgments (see, for example, judgment no. 898/2008 of 11 December 2008). In its judgment no. 343/2011 of 3 May 2011 it referred to the departure from previous case-law in judgment no. 197/2006 in the following terms: “In the present case it was initially considered that the appellant would have finished serving the ljjegal maximum term of imprisonment on 17 November 2023, and that situation has not changed. It is the way sentence adjustments [ beneficios penitenciarios ] are applied that has changed. Until judgment no. 197/2006 (cited above) they were applied to the maximum term a prisoner could serve. This judgment and others that followed deemed that to be an error, and considered that the adjustment should be applied to the sentences actually imposed, which were to be served in succession, one after the other, until the limit provided for by law had been reached.” 44.     According to information supplied by the Government, the “Parot doctrine” has been applied to ninety-three convicted members of ETA and thirty-seven other people found guilty of particularly serious crimes (drug traffickers, rapists and murderers). E.     The case-law of the Constitutional Court 45.     In its judgment no. 174/1989 of 30 October 1989 the Constitutional Court noted that the remissions of sentence for work done in detention provided for in Article 100 of the Criminal Code of 1973 were periodically validated by the judges responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria ) further to a proposal by the prison authorities. It explained that remissions of sentence which had already been approved had to be taken into account by the trial court required to rule on the discharge ( liquidación ) of the term of imprisonment to be served ( condena ), and that remissions already accrued in application of the law could not subsequently be revoked to correct any errors or permit the application of a new interpretation. It added that where there was no appeal against a decision by a judge responsible for the execution of sentences, that decision became final and binding in conformity with the principle of