CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 16 novembre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }       The Committee of Ministers, under the terms of Article 54 (art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention),        Having regard to the judgments of the European Court of Human Rights in the Barberà, Messegué and Jabardo case delivered on 6 December 1988 and on 13 June 1994 and transmitted the same days to the Committee of Ministers;        Recalling that the case originated in three applications against Spain lodged with the European Commission of Human Rights on 22 July 1983 under Article 25 (art. 25) of the Convention by Mr Francesc-Xavier Barberà, Mr Antonino Messegué and Mr Ferràn Jabardo, all Spanish nationals, and that the Commission declared admissible their complaints that they had not received a fair trial before an independent and impartial tribunal;        Recalling that the case was brought before the Court by the Commission on 12 December 1986 and by the Government of Spain on 29 January 1987;        Whereas in its judgment of 6 December 1988 the Court:        - rejected unanimously, on the ground of estoppel and because it was raised out of time, the government's objection that domestic remedies had not been exhausted in respect of the complaint concerning the change of membership of the Audiencia Nacional without notice;        - held unanimously that the applicants had not exhausted domestic remedies in respect of their complaints concerning the substitute presiding judge of the Audiencia Nacional;        - rejected unanimously, on the ground of estoppel and, in part, because it was raised out of time and was unfounded, the government's objection that domestic remedies had not been exhausted in that the applicants did not apply to the Audiencia Nacional for an adjournment of the trial;        - rejected by seventeen votes to one, as unfounded, the remainder of the government's objection that domestic remedies had not been exhausted;        - held by ten votes to eight that there had been a breach of Article 6, paragraph 1 (art. 6-1);        - held unanimously that there had been no breach of Article 6, paragraph 2 (art. 6-2);        - held unanimously that the question of the application of Article 50 (art. 50) was not ready for decision;        Whereas in its judgment of 13 June 1994 the Court:        - held by thirteen votes to three that the respondent state was to pay, within three months, for damage, 8 000 000 pesetas to Mr Barberà, 8 000 000 pesetas to Mr Messegué and 4 000 000 pesetas to Mr Jabardo;        - held unanimously that the respondent state was to pay, within three months, for costs and expenses, 4 500 000 pesetas to the three applicants jointly, less 5 876 French francs already received from the Council of Europe;        - dismissed unanimously the remainder of the claim for just satisfaction;        Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;        Having invited the Government of Spain to inform it of the measures which had been taken in consequence of the judgments of 6 December 1988 and 13 June 1994, having regard to Spain's obligation under Article 53 (art. 53) of the Convention to abide by them;        Whereas, during the examination of the case by the Committee of Ministers, the Government of Spain gave the Committee information about the measures taken in consequence of the judgments, which information appears in the appendix to this resolution;        Having satisfied itself that the Government of Spain paid the applicants, within the time-limit set, the sums provided for in the judgment of 13 June 1994,        Declares, after having taken note of the information supplied by the Government of Spain, that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.                   Appendix to Resolution DH (94) 84           Information provided by the Government of Spain during the examination of the Barberà, Messegué and Jabardo case                   by the Committee of Ministers        In a judgment of 16 December 1991, the Constitutional Court ordered the reopening of the proceedings before the Audiencia Nacional in the applicants' case.   By judgment of 30 October 1993, the Audiencia Nacional acquitted the applicants as there was not sufficient evidence against them.   The details of the domestic proceedings are exposed in paragraphs 4 and 5 of the Court's judgment of 13 June 1994.        The problems of a general nature raised by the Court in its judgment of 6 December 1988 have been resolved by legislative changes and by the development of the case-law of the Constitutional Court and the Supreme Court.        The organic law relating to the judicial power (of 1 July 1985, No. 6/1985) has improved the system for the protection of fundamental rights.   This law has introduced the possibility of cassation on the ground that a constitutional right has been infringed (Article 5) as well as the possibility to request the annulment of judicial acts which violate the principle of fair hearing, the right to be assisted by counsel or the rights of the defence to the extent that these violations have unduly deprived the accused of his means of defence (Articles 238-243). This enactment also contains new rules regarding the substitution of judges (Articles 207-216).        Two other organic laws (of 25 May 1988, Nos. 3 and 4/1988) have reformed the Criminal Code and the Code of Criminal Procedure by abrogating the previous Act of 24 December 1984 concerning the actions of armed bands and terrorist elements.   In the context of criminal proceedings engaged to repress the crimes defined by the new legislation, the judge may only extend the time of arrest by forty-eight hours, instead of by seven days as was previously authorised.   Total isolation of the person detained may not prejudice the rights of the defence (Article 520 bis of the Code of Criminal Procedure).        The habeas corpus procedure has been regulated by an organic law (of 24 May 1984, No. 6/1984) so as to require that any person who claims to have been illegally detained has immediate access to a judge.        The Code of Criminal Procedure has been reformed by another organic law (of 28 December 1988, No. 7/1988) which has clearly separated the judicial function of investigation from that of judgment, hereby bringing Spanish law into line with the case-law of the European Court of Human Rights.   The new law has also increased the role of the prosecution during the investigation phase (Article 781) and has established a second criminal jurisdiction competent to deal with cases involving crimes carrying a maximum sentence of six years imprisonment (Articles 795.2, 3 and 8).        The recent case-law of the Constitutional Court and of the Supreme Court requires constantly the strict observance of the rights of the accused, in particular with regard to the principle of accusatorial procedure, the equality of arms (adversary hearings), publicity, the presumption of innocence and the rights of the defence.   The application of these guarantees is guided by the case-law of the European Court of Human Rights since the Convention, as interpreted by the European Court, is directly applicable in Spain, and the judgments of the European Court are also important sources of inspiration for the interpretation of the fundamental rights protected by the Spanish Constitution (see the judgments of the Constitutional Court of 27 September and 21 December 1989 and of 14 October 1990, and the judgments of the Supreme Court of 11 March and 19 July 1988, of 19 January and 30 June 1989 and of 14 September 1990).