CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 octobre 2018

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background-color:#e8e8e8 }     THIRD SECTION CASE OF ARROZPIDE SARASOLA AND OTHERS v. SPAIN (Applications nos. 65101/16 and 2 others – see appended list)       JUDGMENT       STRASBOURG 23 October 2018     FINAL   23/01/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Arrozpide Sarasola and Others v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   Branko Lubarda,   Helen Keller,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides,   María Elósegui, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 23 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in applications (nos.   65101/16, 73789/16 and 73902/16) 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 Spanish nationals, Mr Santiago Arrozpide Sarasola (“the first applicant”), Mr   Alberto Plazaola Anduaga (“the second applicant”) and Mr   Francisco Múgica Garmendia (“the third applicant”) on 4 November 2016, 23 November 2016 and 21 November 2016 respectively. 2.     The first applicant was represented by Mr I. Urbina Fernandez, a lawyer practising in Vitoria-Gasteiz. The second and third applicants were represented by Ms   H. Ziluaga Larreategi, a lawyer practising in Hernani. The Spanish Government (“the Government”) were represented by their Agent, Mr R.-A. León Cavero, State Counsel and Head of the Human Rights Department at the Ministry of Justice. 3.     The applicants alleged, in particular, a violation of Articles 6, 7 and 5 § 1 of the Convention. 4.     On 18 January 2017 the Government were given notice of the complaint under Article 6 § 1 concerning right of access to the Constitutional Court and the complaints concerning Articles 7 and 5   § 1 of the Convention. The remainder of the applications was declared inadmissible by the then Vice-President of the Section, sitting in single-judge formation. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1948, 1956 and 1953 respectively. The first applicant was detained in Topas Prison when his application was lodged with the Court. The third applicant is detained in Zuera Prison. The second applicant was living in Ciboure (France) when his application was lodged with the Court. Application no. 65101/16 6.     On 30 September 1987 the first applicant was arrested in France. 7.     On 3 October 1987 he was placed in detention in France for belonging to the ETA terrorist organisation. 8.     On 4 July 1990 the Paris Regional Court sentenced him to ten years’ imprisonment on charges of criminal conspiracy, breach of the law on arms and explosives, breach of the Electronic Mail and Communications Code and an offence related to individual or collective action aimed at creating public disorder through intimidation or terror. That conviction concerned offences committed in France in 1987. The first applicant served his sentence up until 3 October 1995, after a full prison term of seven years. 9.     The first applicant then remained in detention in France, for the purposes of extradition, until 21 December 2000, when he was surrendered to the Spanish judicial authorities pursuant to an extradition request. 10.     In Spain, the first applicant was sentenced to more than three thousand years’ imprisonment after eleven separate sets of criminal proceedings before the Audiencia Nacional . He was convicted of several terrorist attacks and murders committed in Spain between 1980 and 1987 by the ETA terrorist organisation, including the booby-trapped car explosion on the Plaza República Dominicana in Madrid on 14 July 1986 (killing twelve Guardia Civil officers and injuring forty-four Guardia Civil officers and seventeen passers-by) and the car-bomb attack on the Hipercor shopping centre in Barcelona on 19 June 1987 (killing twenty-one people and injuring forty-six others). 11.     Once the convictions in Spain had become final by decision of 7 March 2006, the Audiencia Nacional noted that the 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 (see “relevant domestic law and practice” in the case of Del Río Prada v. Spain [GC], no. 42750/09, §§ 24-25, ECHR 2013). The   Audiencia Nacional   fixed the maximum term to be served by the first applicant in respect of all his prison sentences in Spain combined at thirty years. 12.     On 27 June 2006 an initial calculation was carried out for the purposes of fixing the date on which he would have finished serving his sentence ( liquidación de condena ), stating that the first applicant would be released on 30   January   2030. 13.     At the first applicant’s request, the period of detention in France for the purposes of extradition (from 3 October 1995 to 21 December 2000) was deducted from the maximum prison term by decision of 24   May 2011 of the Audiencia Nacional . Consequently, the prison authorities recalculated the prison term and fixed the date on which he would have finished serving his sentence for 24 September 2025. That calculation was confirmed by an order issued on 27 September 2011 by the Audiencia Nacional . 14.     Following the judgment delivered by the Court in the case of Del Río Prada , cited above, the first applicant sought and ultimately obtained a recalculation of his prison term, fixing the date of his release on 21 July 2020, which was approved by decision of 28 February 2014. The remissions of sentence to which the applicant was entitled were deducted from the maximum term of thirty years’ imprisonment, rather than from each of the sentences separately (see, as regards the consequences of the Del Río Prada judgment for other convicted persons, Lorenzo   Vázquez v. Spain (dec.), no. 30502/12, §§ 19-24, 19   January 2016), for the purposes of determining his release date. 15.     On 25 March 2014 the first applicant requested the deduction of the prison sentence imposed by the French judicial authorities and served in France from the maximum thirty-year term established in Spain. He relied on judgment no.   186/2014 of 13 March 2014 of the Supreme Court, which had accepted the possibility of taking into consideration a sentence served in France for the purposes of grouping together sentences on the basis of Framework Decision no.   2008/675/JAI of the Council of the European Union of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (“Framework Decision no.   2008/675/JAI”) (see “relevant domestic   and EU law and practice”, paragraphs 73-77 and 83 below). 16.     By decision of 2 December 2014 the Audiencia Nacional (first section of the Criminal Division) agreed to deduct the prison term served in France from the maximum term of thirty years’ imprisonment. The Audiencia relied, in particular, on judgment no.   186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no.   2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union (“the EU”) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account. The Audiencia Nacional took the view that a previous conviction handed down in another Member State should therefore be taken into account in calculating the maximum prison terms provided in criminal law. 17.     The public prosecutor’s office lodged an appeal on points of law with the Supreme Court against that decision, for the purposes of clarifying the law. In the framework of those proceedings, the first applicant requested an application for a preliminary ruling from the Court of Justice of the European Union (“the CJEU”) on the basis of Article 267 of the Treaty on the Functioning of the European Union. Moreover, he pointed out that allowing the appeal on points of law would violate the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. 18.     On 4 December 2014, while the appeal on points of law was pending before the Supreme Court, the Audiencia Nacional recalculated the sentence to be served by the first applicant under the impugned decision. It noted that pursuant to that decision, and taking account of the sentence served in France for the purposes of grouping the sentences together, the applicant ought to have finished serving his sentence on 27   January 2013. 19.     On 21 December 2014 the first applicant was released from prison. He was placed in pre-trial detention on 20 January 2015 in relation to offences committed in 1986 and 1987 for which he had not yet stood trial. 20.     On 10 March 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor’s office for the purposes of clarifying the law. In its judgment, which was delivered and published on 24 March 2015, it held that there had been no need to take account of the sentence served by the first applicant in France for the purposes of grouping sentences together ( acumulación de penas ). The Supreme Court had followed the same approach as in its leading judgment no.   874/2014 of 27   January 2015, by which the Plenary Criminal Division had decided not to take account of sentences imposed and served in France in tandem with sentences imposed in Spain for the purposes of determining the maximum prison term (see “Relevant law and practice at the domestic and EU levels”, paragraph 69 below). 21.     Referring to the reasoning set out in its leading judgment no.   874/2014 of 27 January 2015, the Supreme Court reiterated all the applicable case-law and legislation concerning the consideration of sentences imposed abroad. It identified three different periods   in this regard: the first period up until 15 August 2008,   the date of publication of Framework Decision no.   2008/675/JAI; the second extending between that date and the date of publication of Organic Law no. 7/2014 of 12   November 2014 on the exchange of information from police records and taking account of criminal court decisions in the EU, which had come into force on 3   December 2014; and lastly, the third period from the date of publication of the aforementioned organic law to the present day. As regards the first period, the Supreme Court noted that the Spanish courts had only agreed to take account of sentences imposed abroad alongside those imposed in Spain where the sentence imposed abroad was to be served in Spain under an international treaty on the execution of criminal judgments (for example a bilateral treaty or the Council of Europe’s Convention on the Transfer of Convicted persons). On the other hand, it pointed out that when the sentence had already been served abroad, there was no reason to consider it in connection with sentences to be served in Spain for the purposes of implementing the maximum prison term (judgment   no.   2117/2002 of 18 December 2002). Concerning the second period (mid-August 2008 to November 2014), the Supreme Court observed that under the Framework Decision itself (Article   3 § 5),   it was not compulsory for States to take account of a sentence imposed in another Member State for the purposes of applying the maximum prison term set out in the Penal Code. The court added, however, that as it transpired from its judgment no.   186/2014 of 13 March 2014, in the absence of domestic legislation transposing the Framework Decision or of rules expressly governing this matter, the rules in force should be interpreted in a manner as compatible as possible with the content of European regulations, provided that such interpretation was not contra legem where domestic law was concerned. It pointed out that it was in that context that judgment no.   186/2014, which had been enacted before the transposition of the Framework Decision, had agreed to take into consideration a sentence imposed in France for the purposes of grouping it together with sentences subsequently imposed in Spain. Finally, as regards the third period, the Supreme Court noted that Organic Law no. 7/2014 had incorporated the Framework Decision into Spanish law, while expressly ruling out the effects of sentences imposed in another Member State in calculating the length of sentences given in Spain for offences committed before any sentences handed down by the courts of the other Member State (section 14 (2) of Organic Law no. 7/2014). It considered that under those circumstances, even though the aim was not to apply that law directly, its existence meant that it was no longer possible to interpret Spanish law (Article   70.2 of the Penal Code and section 988 of the Criminal Procedure Act) in the previously accepted sense, that is to say in favour of taking into account sentences imposed in another Member State for the purposes of calculating the maximum prison term. Given that the Spanish State, through the intermediary of its legislature, had expressed its choice in the transposition of the Framework Decision, ruling out any consideration of sentences imposed in another Member State, the previous interpretation was no longer possible, because it was no longer praeter legem but contra legem. 22.     Furthermore, in its judgment, the Supreme Court had considered whether Organic Law no. 7/2014 was compatible with the Framework Decision, and concluded that the exceptions provided for in the Consideration of Sentences imposed in other Member States Act were authorised by the optional exception set out in Article 3 § 5 of the Framework Decision. 23.     The Supreme Court also considered that the new interpretation of the law set out in its judgment no.   874/2014 did not contravene Article 7 of the Convention read in the light of the Court’s case-law. It took the view that the change of interpretation could not be compared with the reversal of case-law which had given rise to the case of Del Río Prada. Firstly, the Supreme Court held that it would be difficult for an interpretation based on such a legal instrument as a Framework Decision, which itself introduced optional exceptions for its transposition, to give rise to legitimate expectations. Secondly, it considered that it was a case of a pre-established case-law or interpretative practice laying down the general rule of consideration of sentences already served abroad. Thirdly, it pointed out that judgment no.   186/2014 of 13 March 2014 had been the first decision in which it had been called upon to interpret the Framework Decision, at a time when the commonly accepted practice of the courts in similar cases had been to refuse to take account of sentences served abroad. Fourthly, the court emphasised that in the absence of any established case-law, the first applicant could not, when he had been serving his prison sentence, have legitimately expected that the sentence already served in France would be taken into consideration for the purposes of applying the maximum prison term in Spain. It concluded that even though the impugned interpretation differed from that adopted in judgment   no.   186/2014, that change was not such as to infringe any expectation on the first applicant’s part based on reasonable foreseeability. Moreover, it considered that that foreseeability could never have existed either at the time the first applicant had committed the offences in France (1987) or at the time the decision was taken to group together sentences in Spain (2006), since the Framework Decision had not yet been adopted then and no judicial precedent had supported the taking into account of sentences served abroad. Finally, the Supreme Court held that the first applicant must have known that the Framework Decision had to be implemented at the domestic level, and pointed out that such transposition would determine whether or not sentences imposed in another Member State could be taken into account under the optional exception set forth in Article 3 § 5 of the Framework Decision itself. It noted that ultimately, Spanish law as a whole, including the relevant case-law, had not been drawn up sufficiently precisely for the argument advanced by the applicant to be accepted as established and evident. 24.     As regards the first applicant’s desire to request a preliminary ruling from the CJEU, the Supreme Court held that that was unnecessary in view of the clear wording of Article 3 § 5 of the Framework Decision read in its context and in the light of the procedure for adopting that instrument. 25.     The Supreme Court had adopted its judgment by four votes to one. One judge had appended a dissenting opinion submitting that the exceptions laid down in Organic Law no. 7/2014 on taking account of sentences imposed in another Member State were contrary to the spirit of the Framework Decision and destroyed the very essence of the equivalence objective which that instrument was supposed to enshrine. 26.     On 13 March 2015 the Audiencia Nacional took note of the communication of the Supreme Court judgment and of the latter’s annulment of the 2 December 2014 decision on grouping sentences together in respect of the first applicant, thus rendering inoperative the latest calculation of the prison term to be served. It stated that the first applicant now had to continue serving his prison sentence. 27.     On 10 April 2015 the 24 March 2015 judgment of the Supreme Court was served on the first applicant’s representative. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court within thirty working days. 28.     On 15 April 2015 the first applicant filed an action ( incidente de nulidad ) to set aside the judgment of the Supreme Court on the basis of section 241 (1) of the Organic Law on the Judiciary (“LOPJ”) (see “Relevant law and practice at the domestic and EU levels”, paragraph 69 below), alleging in particular an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. He requested that his action be dealt with under urgent procedure so that he could lodge an amparo appeal before the Constitutional Court within the thirty-day time-limit. 29.     On 25 May 2015 the first applicant requested the withdrawal of his action on the grounds that the Supreme Court, which had delivered the impugned cassation judgment, had already had an opportunity to reply to his allegations of breaches of fundamental rights. 30.     On 26 May 2015 the first applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 (equality principle), Article 17 (right to liberty), Article 24 (right to effective judicial protection) and Article 25 (principle that only a statute can define offences and lay down penalties) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the first applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court. 31.     At a subsequent date (27 May 2015 according to the applicant and 8   June 2015 according to the Government) the first applicant was served with a decision of the Supreme Court dated 30 April 2015 declaring his action for annulment inadmissible. In that decision the Supreme Court stated that most of the applicant’s complaints had already been assessed in its cassation judgment, and that consequently, pursuant to section 241   (1) LOPJ, the action should be declared inadmissible. 32.     On 24 May 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non-exhaustion of existing legal remedies, relying on section 44 (1) (a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 (1) LOPJ. B.     Application no. 73789/16 33.     The second applicant was arrested in France on 18 November 1990. He was subsequently placed in pre-trial detention. 34.     By judgment of 11 March 1994 the Paris Regional Court sentenced him to seven years’ imprisonment on charges of criminal conspiracy (terrorism), transport of arms and munitions and use of forged documents, in respect of offences committed in French territory in 1990. In its decision the court noted that the applicant was a member of the ETA. 35.     The second applicant served that sentence in France up until the date of his extradition to Spain on 11 March 1996. 36.     By judgment of 31 July 1997 the Audiencia Nacional sentenced the second applicant to a forty-six years’ imprisonment for two attempted murders and damage to property, in connection with a terrorist attack on a bar in Eskoriaza (Guipuscoa Province) on 22 May 1987. The judgment stated that regard would be had to the upper limit set out in Article   70.2 of the 1973 Penal Code, which provided for a maximum prison term of thirty years. The judgment was upheld by the Supreme Court on 12 June 1998 following an appeal on points of law. 37.     On 18 August 1998 an initial calculation was carried out for the purposes of fixing the date on which he would have finished serving his sentence ( liquidación de condena ), stating that the first applicant would be released on 3   March 2026. The Audiencia Nacional approved that calculation on 27 August 1998. 38.     On 20 March 2014 the second applicant requested that the prison sentence imposed by the French judicial authorities and served in France be taken into account in determining the maximum thirty-year prison term set in Spain. He relied on judgment no.   186/2014 of the Supreme Court of 13   March   2014 and Framework Decision no.   2008/675/JAI of 24 July 2008. 39.     By decision of 2 December 2014 the Audiencia Nacional (first section of the Criminal Division) agreed to deduct the prison term served in France from the maximum term of thirty years’ imprisonment. The Audiencia relied, in particular, on judgment no.   186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no.   2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union (“the EU”) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account. 40.     The public prosecutor’s office lodged an appeal on points of law with the Supreme Court against that decision, for the purposes of clarifying the law. In the framework of those proceedings, the second applicant requested an application for a preliminary ruling from the CJEU on the basis of Article 267 of the Treaty on the Functioning of the European Union. Moreover, he pointed out that should the appeal on points of law be allowed, that would violate the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. 41.     On 2 December 2014 the Audiencia Nacional recalculated the sentence to be served by the second applicant in accordance with the impugned decision. It noted that pursuant to that decision and having taken into account the sentence served in France for the purposes of grouping sentences together, the applicant should have completed his sentence on 24   August 2013. The Audiencia Nacional also had regard to the ordinary remissions of sentence to which the second applicant was entitled and which had to be deducted from the thirty-year limit. 42.     On 4 December 2014 the Audiencia Nacional confirmed that calculation and the second applicant was released from prison. 43.     On 10 March 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor’s office for the purposes of clarifying the law. In its judgment, which was delivered and published on 24 March 2015, it held that there had been no need to take account of the sentence served by the first applicant in France for the purposes of grouping the sentences together. The Supreme Court had followed the same approach as in its cassation judgment concerning the first applicant (see paragraphs 20-24 above), referring to the approach which it had adopted in its leading judgment no.   874/2014 of 27   January 2015. One judge had appended a dissenting opinion to the judgment. 44.     Also on 10 March 2015, the cassation judgment was communicated to the Audiencia Nacional . The latest calculation of the prison term to be served by the second applicant was rendered inoperative and the previous calculation was reinstated. The Audiencia Nacional therefore fixed the date on which the second applicant would have finished serving his sentence as 16 August 2018 ( liquidación de condena ), and ordered his recall to prison. 45.     Just as he was to return to prison, the second applicant absconded and remained untraceable. International arrest warrants were issued, and once he had been located, an extradition request was issued to the French State. 46.     On 10 April 2015 the 24 March 2015 judgment of the Supreme Court was served on the second applicant’s representative. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court, to be lodged within thirty working days. 47.     On 17 April 2015 the second applicant filed an action to set aside the judgment of the Supreme Court on the basis of section 241 (1) of the Organic Law on the judiciary (“LOPJ”), alleging in particular an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. He requested that his action be dealt with under urgent procedure so that he could lodge an amparo appeal before the Constitutional Court within the thirty-day time-limit. 48.     On 26 May 2015 the second applicant requested the withdrawal of his action on the grounds that the Supreme Court, which had delivered the impugned cassation judgment, had already had an opportunity to reply to his allegations of breaches of fundamental rights. 49.     On the same date the second applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 (equality principle), Article 17 (right to liberty), Article 24 (right to effective judicial protection) and Article 25 (principle that only a statute can define offences and lay down penalties) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the first applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court. 50.     On 27 May 2015 the second applicant was served with a decision of the Supreme Court dated 30 April 2015 declaring his action for annulment inadmissible. In that decision the Supreme Court stated that most of the applicant’s complaints had already been assessed in its cassation judgment, and that consequently, pursuant to section 241   (1) LOPJ, the action had to be declared inadmissible. 51.     The second applicant was arrested in France on 7 September 2015. It transpires from the case file that the Government adopted an agreement to request his extradition on 9 October 2015. 52.     On 22 June 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non-exhaustion of existing legal remedies, relying on section 44 (1) (a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 (1) LOPJ. C.     Application no. 73902/16 53.     The third applicant was arrested in France on 29 March 1992 in the framework of an operation against the main ETA leaders. 54.     By judgment of 19 June 1997, the Paris Regional Court sentenced him to ten years’ imprisonment on charges, inter alia , of criminal conspiracy, unlawful possession of arms and munitions and use of forged documents, in respect of offences which had been committed in French territory between 1990 and 1992. The third applicant served that sentence in France. 55.     On 8 February 2000 he was surrendered to the Spanish judicial authorities pursuant to an extradition request. 56.     In Spain the third applicant was sentenced to over four thousand seven hundred years’ imprisonment following seventeen separate sets of criminal proceedings before the Audiencia Nacional . He was convicted, inter alia , of several terrorist attacks and murders (twenty-three in all) committed in Spain (Madrid, Zaragoza, Santander and Valencia) between 1987 and 1993. 57.     On 4 December 2012, once the sentences imposed in Spain had become final, the third applicant requested the grouping together of the sentences for the purposes of determining the maximum prison term to be served (thirty years). He did not refer to the sentence served in France. 58.     By decision of 18 November 2013, the Audiencia Nacional noted that the 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 first applicant in respect of all his prison sentences in Spain combined at thirty years. 59.     By decision of 11 April 2014, the Audiencia Nacional approved the calculation of the sentence to be served by the third applicant, taking account of the remissions of sentence to which he was entitled. The date on which he would have finished serving his sentence ( liquidación de condena ) was fixed for 13 November 2024. 60.     On 30 April 2014 the third applicant requested that the prison sentence which he had served in France be taken into account in determining the maximum thirty-year term. He relied in particular on judgment no.   186/2014 of the Supreme Court and Framework Decision no.   2008/675/JAI. 61.     By decision of 2 December 2014, the Audiencia Nacional (first section of the Criminal Division) agreed to deduct the prison term served in France from the maximum term of thirty years’ imprisonment. The Audiencia relied, in particular, on judgment no.   186/2014 delivered by the Supreme Court on 13 March 2014, as well as Framework Decision no.   2008/675/JAI, particularly Article 3 § 1 thereof, which provides that each Member State of the European Union (“the EU”) should ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts are taken into account to the extent previous national convictions are taken into account. 62.     That decision was contested on points of law before the Supreme Court by the public prosecutor’s office for the purposes of clarifying the law, and by the third applicant. The latter requested the consideration of the whole sentence imposed in France (ten years), encompassing the remissions of sentence given, and not exclusively the time actually spent in prison (from 29   March 1992 to 7 February 2000 – seven years and eleven months). In the framework of the cassation proceedings, the third applicant requested that the CJEU be invited to give a preliminary ruling on the basis of Article   267 of the Treaty on the Functioning of the European Union. Furthermore, he complained of an infringement of the principle that only a statute can define offences and lay down penalties, the right to liberty, the right to equality before the law and the right to effective judicial protection. 63.     On 3 December 2014, the date on which the third applicant would have finished serving his sentence ( liquidación de condena ) was fixed for 21   March 2022, pursuant to the impugned decision and after deduction of the prison sentence served in France from 29 March 1992 to 7 February 2000. Having regard to the remissions of sentence already granted, deductible from the maximum thirty-year term, his final date of release ( licenciamiento definitivo ) was fixed for 5 August 2016. 64.     On 23 April 2015 the Supreme Court allowed the appeal on points of law lodged by the public prosecutor’s office for the purposes of clarifying the law, holding that there had been no need to take account of the sentence served by the third applicant in France for the purposes of grouping sentences together. The Supreme Court had followed the same approach as in its judgments concerning the first and second applicants (see paragraphs 20-24 above), while also referring to the approach adopted in its leading judgment no.   874/2014 of 27   January 2015. Two judges appended a dissenting opinion to the Supreme Court’s judgment. The appeal on points of law lodged by the third applicant was dismissed. 65.     On 18 May 2015 the judgment of the Supreme Court was communicated to the Audiencia Nacional and served on the third applicant, who was represented by the same solicitor as the first and second applicants. The notice accompanying the judgment stated that the latter was final and could be the subject of an amparo appeal before the Constitutional Court within thirty working days. 66.     On 20 May 2015 the latest calculation of the prison term to be served by the third applicant was rendered inoperative. The previous calculation was re-validated and updated by taking account of the further applicable remissions of sentence. According to that calculation, approved by the Audiencia Nacional on 21   July 2015, the third applicant would have finished serving his sentence ( liquidación de condena ) on 14   March 2024. 67.     On 26 June 2015 the third applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 14 (equality principle), Article 17 (right to liberty), Article 24 (right to effective judicial protection) and Article 25 (principle that only a statute can define offences and lay down penalties) of the Constitution. He once again requested that the CJEU be invited to give a preliminary ruling. Regarding the requirement of exhaustion of available domestic remedies, the third applicant pointed out that no ordinary appeal lay with the cassation judgment and that the Supreme Court had already determined all the allegations of violations of fundamental rights, redress for which he was now seeking before the Constitutional Court. 68.   On 22 June 2016 the Constitutional Court declared the amparo appeal inadmissible on grounds of non-exhaustion of existing domestic remedies, relying on section 44 (1) (a) of the Organic Law on the Constitutional Court. That court noted that the first applicant had not lodged an action for annulment based on section 241 (1) LOPJ. RELEVANT DOMESTIC AND eUROPEAN UNION LAW AND PRACTICE A.     Action for annulment 69.     Section 241 (1) of the Organic Law on the Judiciary (“LOPJ”) as amended under the first final provision of Organic Law no. 6/2007 of 24 May 2007 provides: “As a general rule, actions for the annulment of judicial decisions must be declared inadmissible. In exceptional cases, however, legitimate or potentially legitimate parties may request in writing that judicial decisions be declared null and void on grounds of a violation of a fundamental right secured under Article 53 § 2 of the Constitution, provided that such violation could not have been complained of before the delivery of the judgment or decision terminating the proceedings, and that, in either case, no ordinary or extraordinary remedy lies with the judgment or decision.” B.     Organic Law on the Constitutional Court 70.     Section 44 (1) (a) of the Organic Law on the Constitutional Court as amended under Organic Law no. 6/2007 of 24   May 2007, provides: “1. Violations of rights and freedoms which are open to an amparo appeal and which derive immediately and directly from an act or omission on the part of a judicial body may give rise to such an appeal, subject to the following conditions: (a) that all the legal remedies provided for by procedural rules have been exercised in the practical case, through judicial channels ...”. C.     Applicable law regarding upper limits on and the grouping together of sentences in Spain 71.     The relevant provision of the 1973 Penal Code in force at the time of commission of the offences in issue read: Article 70 “Where all or some of the sentences ( penas ) ... cannot be served simultaneously by the convicted person, the follow rules will apply: 1. Sentences ( penas ) shall be imposed in accordance with their respective severity such that the convicted person serves them one after another, whereby the execution of a sentence shall begin, as far as possible, when the previous sentence has been served or been the subject of a pardon ... 2.   Notwithstanding the foregoing rule, the maximum prison term ( condena ) to be served by the convicted person cannot exceed three times the length of the heaviest of the sentences ( penas ) imposed, the remainder of which shall lapse as soon as the maximum term, which cannot exceed thirty years, has been reached. The thirty-year maximum shall apply even if the sentences ( penas ) were imposed in the framework of separate sets of proceedings, provided that the connection between the offences concerned was such that they could have been the subject of one single set of proceedings.” 72.     The relevant provision of the Criminal Procedure Act ( Ley de Enjuiciamiento Criminal ) in force at the material time provided: Article 988 “...   where a person found guilty of several criminal offences was convicted in the framework of separate sets of proceedings of offences which could have been covered by the same proceedings pursuant to section 17 of this Act, the judge or court which delivered the latest judgment shall fix, proprio motu or at the request of the public prosecutor’s office or the convicted person, the maximum prison term for serving the sentences imposed in pursuance of Article 70.2 of the Criminal Code. ...” D.     Framework Decision no.   2008/675/JAI of the Council of the European Union of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings 73.     Framework Decision no.   2008/675/JAI, which was adopted by the Council of the European Union on 24 July 2008 (JO L 220/32, 15/08/2008, pp. 32-34), came into force on 15 August 2008. Article 5 § 1 required EU Member States to take the necessary measures to comply with the provisions of the instrument by 15 August 2010. 74.     The relevant parts of the preamble to the Framework Decision read as follows: “6. In contrast to other instruments, this Framework Decision does not aim at the execution in one Member State of judicial decisions taken in other Member States, but rather aims at enabling consequences to be attached to a previous conviction handed down in one Member State in the course of new criminal proceedings in another Member State to the extent that such consequences are attached to previous national convictions under the law of that other Member State. ... 7. The effects of a conviction handed down in another Member State should be equivalent to the effects of a national decision at the pre-trial stage of criminal proceedings, at the trial stage and at the time of execution of the sentence. 8. Where, in the course of criminal proceedings in a Member State, information is available on a previous conviction in another Member State, it should as far as possible be avoided that the person concerned is treated less favourably than if the previous conviction had been a national conviction. 9. Article 3(5) should be interpreted,   inter alia , in line with recital 8, in such a manner that if the national court in the new criminal proceedings, when taking into account a previously imposed sentence handed down in another Member State, is of the opinion that imposing a certain level of sentence within the limits of national law would be disproportionately harsh on the offender, considering his or her circumstances, and if the purpose of the punishment can be achieved by a lower sentence, it may reduce the level of sentence accordingly, if doing so would have been possible in purely domestic cases.” 75.     The relevant parts of Article 3 of the Framework Decision, titled “Taking into account, in the course of new criminal proceedings, a conviction handed down in another Member State”, provide: “1.     Each Member State shall ensure that in the course of criminal proceedings against a person, previous convictions handed down against the same person for different facts in other Member States, in respect of which information has been obtained under applicable instruments on mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law. 2.       Paragra