In the case of Ruiz-Mateos v. Spain*,
The European Court of Human Rights, taking its decision in
plenary session pursuant to Rule 51 of the Rules of Court and composed
of the following judges:
Mr R. Bernhardt, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr A. Spielmann,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr F. Bigi,
Sir John Freeland,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr D. Gotchev, judges,
Mr D. Ruiz-Jarabo Colomer, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Having deliberated in private on 29 January and 27 May 1993,
Delivers the following judgment, which was adopted on the
Note by the Registrar
* The case is numbered 2/1992/347/420. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
1. The case was referred to the Court first by the Government of
the Kingdom of Spain ("the Government") and then by the European
Commission of Human Rights ("the Commission") on 20 and
21 February 1992, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention"). It originated in an application (no. 12952/87)
against Spain lodged with the Commission under Article 25 (art. 25) by
six Spanish nationals, Mr José María, Mr Zoilo, Mr Rafael, Mr Isidoro,
Mr Alfonso and Mrs María Dolores Ruiz-Mateos, on 5 May 1987.
The Government's application referred to Article 48 (art. 48);
the Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Spain recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the
application and the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that
they wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 30). The President of the Court gave
the lawyers leave to use the Spanish language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr J. M. Morenilla, the elected judge of Spanish nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 27 February 1992, in
the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr F. Gölcüklü, Mr C. Russo,
Mr N. Valticos, Mrs E. Palm, Mr R. Pekkanen, Mr F. Bigi and
Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
By a letter of 26 February to the President, Mr Morenilla had
stated that he wished to withdraw pursuant to Rule 24 para. 2, because
he had represented the Government before the Commission as Agent. On
6 April the Government notified the Registrar of the appointment of
Mr Rafael de Mendizábal Allende, judge at the Supreme Court, as ad hoc
judge (Article 43 of the Convention and Rule 23) (art. 43).
On 20 October the Registrar received a letter from the latter
stating that he wished to withdraw "for [a] special reason"
(Rule 24 para. 3), following his appointment to the Constitutional
Court. On 20 November the Government appointed a new ad hoc judge,
Mr Dámaso Ruiz-Jarabo Colomer, a judge who is on secondment as head of
the private office of the President of the General Council of the
4. Mr Ryssdal had assumed the office of President of the Chamber
(Rule 21 para. 5) and had, in the meantime, through the Registrar,
consulted the Agent of the Government, the Delegate of the Commission
and the applicants on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the President's orders and directives,
the Registrar received the Government's memorial on 6 July 1992 and the
applicants' memorial on 7 July. On 8 September the Secretary to the
Commission informed him that the Delegate would submit oral
5. On 10 April and 30 June 1992 respectively the President had
authorised, under Rule 37 para. 2, the Government of the Federal
Republic of Germany and the Government of the Portuguese Republic to
submit written observations on the applicability of Article 6 para. 1
(art. 6-1) of the Convention to constitutional courts. These
observations reached the registry on 10 June and 27 August.
6. On 23 November 1992, the date initially fixed for the hearing
- which had had to be postponed because of Mr de Mendizábal Allende's
withdrawal -, the Chamber decided under Rule 51 to relinquish
jurisdiction forthwith in favour of the plenary Court.
7. On 27 November 1992 the President directed that the oral
proceedings should open on 27 January 1993. The hearing took place in
public in the Human Rights Building, Strasbourg, on the appointed day.
Mr R. Bernhardt, the Vice-President of the Court, had replaced
Mr Ryssdal as President, the latter being unable to take part in the
further consideration of the case (Rule 9). The Court had held a
preparatory meeting before the hearing.
There appeared before the Court:
(a) for the Government (whose Agent had been authorised by the
President to use the Spanish language - Rule 27 para. 2)
Mr J. Borrego Borrego, Head of the Legal Department
for Human Rights, Ministry of Justice, Agent,
Mr J.L. Fuertes Suárez, Ministry of Justice, Counsel;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicants
Mr M. García Montes, abogado,
Mr S. Sánchez Pardo, abogado,
Mr F. Ruhlmann, avocat, Counsel.
The Court heard addresses by Mr Borrego Borrego for the
Government, by Mr Pellonpää for the Commission and by Mr García Montes,
Mr Sánchez Pardo and Mr Ruhlmann for the applicants, as well as their
replies to its questions. The lawyers for the applicants and the
Government's representatives produced various documents.
AS TO THE FACTS
8. Mr José María Ruiz-Mateos, a businessman,
Mr Zoilo Ruiz-Mateos, Mr Rafael Ruiz-Mateos, Mr Isidoro Ruiz-Mateos,
Mr Alfonso Ruiz-Mateos and Mrs María Dolores Ruiz-Mateos are brothers
and sister. They are all of Spanish nationality. In 1983 they held
100% of the shares in RUMASA S.A., the parent company of the RUMASA
group, which comprised several hundred undertakings. RUMASA S.A.'s
holding in these undertakings varied from one to the other.
I. The particular circumstances of the case
A. The expropriation of the RUMASA group
9. By a legislative decree of 23 February 1983 the Government
ordered the expropriation in the public interest of all the shares in
the companies comprising the RUMASA group, including those of the
parent company (Article 1). The State, which was the beneficiary of
this measure, was to take immediate possession of the expropriated
property through the intermediary of the Directorate General for
National Assets (Article 2).
The legislative decree was confirmed on 2 March 1983 by the
Chamber of Deputies. It gave rise to an appeal to the Constitutional
Court (recurso de inconstitucionalidad, Article 161 para. 1 (a) of the
Constitution, see paragraph 26 below), as a group of deputies contested
its constitutional validity. The Constitutional Court dismissed the
deputies' appeal by a judgment of 2 December 1983, adopted with the
President's casting vote; in a dissenting opinion, six members of the
court expressed the view that the expropriation procedure followed was
contrary to the Constitution.
10. In the meantime Law no. 7/1983 of 29 June 1983, published a
day later in the Official State Gazette (Boletín Oficial del Estado),
had replaced the legislative decree. Articles 1 and 2 thereof ordered
the immediate expropriation and transfer of possession of the companies
concerned in similar terms to those of the legislative decree (see
paragraph 9 above). The aim of these measures was to protect the
public interest because, in order to finance the group's companies, its
banks had taken risks considered to be disproportionate in relation to
their solvency, thereby jeopardising "the stability of the banking
system and the interests of the depositors, employees and third
B. The action for the restitution of the expropriated property
1. The proceedings at first instance
11. Between the publication of the legislative decree and that of
Law no. 7/1983, Mr José María Ruiz-Mateos had, on 8 April 1983, both
on his own behalf and on that of the other applicants and RUMASA S.A.,
instituted summary proceedings for the restitution of the expropriated
property (interdicto de recobrar). On 11 April the Madrid
First-Instance Court (juzgado de primera instancia) no. 18 - composed
of a single judge - declared the application inadmissible on procedural
grounds. The first applicant had failed to adduce evidence
establishing that he had been divested of the assets as alleged and
showing that prior to the impugned measure the assets in question had
been in his possession.
12. On 9 May 1983 Mr José María Ruiz-Mateos lodged a further
application concerning 50% of the RUMASA S.A. shares. The other five
applicants followed suit on 27 May with regard to the remaining shares,
each claiming 10%. The two cases were allotted respectively to Madrid
First-Instance Courts nos. 18, which reopened the file, and 21.
13. The Counsel for the State (Abogado del Estado), representing
the Government, obtained, on 4 and 5 July respectively, a stay of three
months in each of the two sets of proceedings to enable him to consult
his superiors. The applicants' appeals against those decisions were
dismissed on 16 and 18 July.
On 21 September the Counsel for the State applied for the
joinder of the two sets of proceedings. Court no. 18 acceded to this
request on 22 November, having received the consent of
Mr José María Ruiz-Mateos on 18 November. On 27 March 1984 Court
no. 21 ordered that the file of the proceedings before it be
transmitted to Court no. 18, the other five applicants having given
their agreement on 23 March. Court no. 18 received the file on 9 May.
14. On 21 March 1984 the first applicant had requested Court
no. 18 to refer to the Constitutional Court a question on the
conformity of Articles 1 and 2 of Law no. 7/1983 (see paragraph 10
above) with Articles 14, 24 and 33 of the Constitution (cuestión de
inconstitucionalidad, see paragraphs 25, 26 and 27 below). The court
held hearings on 18 June and 17 September 1984. On 19 September the
judge invited the parties to submit observations on this matter within
ten days (Article 35 of Institutional Law no. 2/1979 on the
Constitutional Court, "Institutional Law no. 2/1979", see paragraph 27
below). On 29 September the Counsel for the State replied that the
question was not material to summary proceedings for the examination
of an action to recover possession. On 1 October the Attorney
General's department also expressed its opposition to the motion. On
the same date in support of their claims the applicants submitted two
memorials, respectively eighty-five and thirty-seven pages long.
15. By a decision (auto) of 5 October 1984 Court no. 18 referred
to the Constitutional Court the question of the conformity of the
above-mentioned articles of Law no. 7/1983 with Article 24 para. 1 of
the Constitution inasmuch as it had not been open to the applicants
either to invoke in the courts their right of property in respect of
the assets expropriated by legislative action or to challenge the
necessity of seizing them. In the opinion of the first-instance court,
the decision on the merits of the dispute depended on the validity of
the provisions in issue.
16. The Constitutional Court found the question admissible on
17 October 1984; it then gave notice of the question to the Chamber of
Deputies, the Senate, the Government and the Attorney General (Fiscal
General del Estado), who were each entitled to file observations within
the same fifteen-day period (Article 37 para. 2 of Institutional Law
no. 2/1979, see paragraph 27 below).
The Constitutional Court received the observations of the
Attorney General's department and of the Counsel for the State on 5 and
6 November respectively; on 12 November the Speaker of the Chamber of
Deputies indicated that the Chamber did not intend to submit
17. On 27 January 1986 Mr José María Ruiz-Mateos complained of the
delay in the proceedings; he relied in this connection on
Article 24 para. 2 of the Constitution (see paragraph 25 below) and
Article 6 para. 1 of the Convention (art. 6-1). The Constitutional
Court joined the application (recurso de queja) to the file on
30 January, but did not pursue the matter because the applicant lacked
On 7 February he again applied to the Constitutional Court,
alleging that the decision of 30 January infringed Article 24 of the
Constitution. He also maintained that he had locus standi in respect
of the constitutional proceedings by virtue of his status as a party
in the main proceedings. On 21 February the Constitutional Court
confirmed its earlier decision.
18. Following the election to the Constitutional Court of six new
members, on 26 March 1986 Mr José María Ruiz-Mateos challenged two of
these judges for lack of impartiality. He claimed that one of them was
well-known to be a friend of the Prime Minister and the other had
already been involved in the case as adviser to the Minister of Justice
and had, among other things, participated in preparing the speech to
Parliament on the expropriation of RUMASA.
On 10 April the Constitutional Court dismissed the challenge
on the ground that the applicant lacked locus standi.
19. By a judgment of 19 December 1986, it held that Articles 1 and
2 of Law no. 7/1983 were compatible with Article 24 of the
Constitution. It found that legislative expropriation - even by means
of a special statute concerning a specific case - was not contrary to
the Constitution. Although this admittedly meant that the persons
concerned suffered restrictions on the judicial protection of their
rights, as they could not challenge in the courts the necessity of the
seizure of their assets, it was always open to them to contest the
measure in the administrative courts and to ask those courts to refer
a question to the Constitutional Court on the constitutional conformity
of such action. In addition an appeal (amparo), founded on the right
to equality before the law, lay against the final decision of the
administrative courts. Finally, the law in issue had in no way
deprived the persons concerned of their right to appropriate
compensation, a right which they could assert before the Provincial
Expropriation Board (jurado provincial d'expropiación) - the competent
administrative body -, and then in the administrative courts.
Two judges expressed the view, in a dissenting opinion, that
the expropriation procedure used had deprived the applicants of their
right of access to the courts.
20. This judgment was communicated to Court no. 18 on
22 December 1986. The following day that court dismissed the action
2. The appeal proceedings
21. On 27 December 1986 the applicants appealed to the Audiencia
provincial of Madrid, which declared the appeal admissible on
5 February 1987.
The examination of the appeal began on 26 June 1988. The
court communicated the file to each of the parties in turn, each party
having ten days to study it. The hearing was initially set down for
21 October, but was adjourned at the request of the applicants' lawyer,
who was unable to attend. As soon as the hearing opened on
28 November, the applicants sought a stay of the proceedings until the
European Commission and Court of Human Rights had had an opportunity
to rule on their application to Strasbourg. In the alternative, they
requested the Audiencia provincial to refer to the Constitutional Court
a new question concerning the compatibility of Articles 1 and 2 of Law
no. 7/1983 with Articles 14 and 33 para. 3 of the Constitution (see
paragraph 25 below).
The court ordered an adjournment so as to allow the applicants
to submit documents in support of their first request. On
19 December 1988 they supplied a translation of the correspondence from
the Secretariat of the Commission. After a further hearing on
13 February 1989, the court refused to stay the proceedings. On
7 July 1989 it overruled the applicants' objection to this decision.
22. On 14 February 1989 it had invited the parties and the
Attorney General's department to give their views on whether the
above-mentioned question as to constitutional conformity should be
submitted to the Constitutional Court (Article 35 para. 2 of
Institutional Law no. 2/1979, see paragraphs 21 above and 27 below).
After having received their comments, the Audiencia provincial referred
the question to the Constitutional Court on 9 July 1989.
The latter court declared it admissible on 31 October 1989,
then communicated it to the institutions of the State listed in
Article 37 para. 2 of Institutional Law no. 2/1979 (see paragraph 27
below). The Speaker of the Chamber of Deputies replied on 17 November
that the Chamber did not intend to submit observations; on the same day
and the following day respectively, Counsel for the State and the
Attorney General's department filed their submissions.
23. By a judgment of 15 January 1991 the Constitutional Court
found the contested articles of Law no. 7/1983 to be compatible with
Articles 14 and 33 para. 3 of the Constitution. Two judges expressed
a dissenting opinion.
24. The Audiencia provincial was notified of this on
25 January 1991 and set down a hearing for 22 February. On that
occasion the applicants made a further application for the proceedings
to be stayed. The court dismissed their appeal by a judgment of
On 6 March the applicants lodged an application for the
interpretation of that judgment; their application was dismissed on
11 March 1991.
II. The applicable domestic law
1. The Constitution
25. The relevant Articles of the 1978 Constitution are worded as
"Spaniards shall be equal before the law and may not be
discriminated against in any way on account of birth, race,
sex, religion, opinion or any other condition or personal or
"1. Every person has the right to obtain the effective
protection of the judges and the courts in the exercise of
his legitimate rights and interests, and in no case may he be
denied that protection.
2. Likewise, all persons have the right of access to the
ordinary courts as predetermined by law; to the defence and
assistance of a lawyer; to be informed of the charges brought
against them; to a public trial without undue delays and with
full guarantees; to the use of evidence pertinent to their
defence; not to make self-incriminating statements; not to
declare themselves guilty; and to the presumption of
"1. Private property rights ... are recognised.
3. No-one may be deprived of his property and rights,
except on justified grounds of public interest against proper
compensation and in accordance with the provisions of the
26. The jurisdiction of the Constitutional Court is defined as
Article 161 para. 1
"The Constitutional Court has jurisdiction over the whole
of Spanish territory and is competent to hear:
(a) appeals against alleged unconstitutionality of laws and
regulations having the force of law ...;
(b) individual appeals for protection (recurso de amparo)
against violation of the rights and liberties referred to in
Article 53 para. 2 of the Constitution, in the circumstances
and manner laid down by law;
(c) conflicts of jurisdiction between the State and the
Autonomous Communities or between the Autonomous Communities
Only the rights guaranteed under Articles 14 to 29 of the
Constitution may be the subject of an amparo appeal, which is not
therefore available in respect of the right to property secured under
"If a judicial body considers, in the course of
proceedings, that a regulation with the status of law which
is applicable in those proceedings and upon the validity of
which the judgment depends may be contrary to the
Constitution, it may bring the matter before the
Constitutional Court in the circumstances, manner and subject
to the consequences to be laid down by law; such consequences
shall in no case be suspensive."
"1. The judgments of the Constitutional Court shall be
published in the Official State Gazette, together with any
dissenting opinions. They have the force of res judicata
with effect from the day following their publication, and no
appeal may be brought against them. Those which declare the
unconstitutionality of a law or of a rule with the force of
law, and all those which do not merely recognise an
individual right, shall be fully binding on all persons.
2. Unless the judgment rules otherwise, that part of the
law not affected by unconstitutionality shall remain in
2. Institutional Law no. 2/1979 on the Constitutional Court
27. Chapter III of the Institutional Law on the Constitutional
Court is entitled "On questions of constitutionality submitted by
judges and courts" and is worded as follows:
"1. When a judge or court, ex proprio motu or at the
request of a party, decides that a provision having the
status of law which applies in the case in issue and on the
validity of which his or its decision depends might be
contrary to the Constitution, he or it shall refer the matter
to the Constitutional Court, in accordance with the
provisions of the present law.
2. Judges or courts shall not refer such a question until
the case is ready to be tried and they must do so within the
time-limits laid down for ruling on the case. They must
specify which law or provision having the status of law is
alleged to be unconstitutional and which article of the
Constitution is considered to have been breached. They must
also state the precise reasons why the outcome of the
proceedings depends on the validity of the contested
provision. Before taking a final decision on whether to
refer the question to the Constitutional Court, the judge or
court must first hear the views of the parties to the
proceedings and the Attorney General's department in order to
give them the opportunity, within a single and non-extendable
ten-day time-limit, to submit any observations they may wish
to make concerning the pertinence of the question. The judge
shall then announce his decision, without taking any further
steps, within three days. No appeal shall lie against this
decision. However, the question as to constitutionality may
be raised again in subsequent proceedings until the judgment
has become final."
"A question as to constitutionality referred to the
Constitutional Court by a judge or court must be accompanied
by a certified copy of the main file and, in so far as there
are any, the observations provided for in the preceding
"1. On receipt of the file the Constitutional Court shall
follow the procedure laid down in paragraph 2 of the present
article. However, the Court may declare the question
inadmissible, in a decision stating its reasons, after
hearing only the Attorney General, when the procedural
requirements are not satisfied or when the question is
2. The Constitutional Court shall give notice of the
question to the Chamber of Deputies and the Senate via their
respective Speakers, to the Attorney General and via the
Ministry of Justice to the Government. If the question
raises an issue concerning a law or another provision having
the status of law adopted by an Autonomous Community, notice
thereof shall also be given to its legislative and executive
authorities. All these authorities may appear before the
court and submit observations on the question referred within
a single and non-extendable fifteen-day time-limit. When
this time-limit has expired, the court shall give judgment
within fifteen days, except when it considers a longer
period, which may not exceed thirty days, to be necessary, in
which case it must state the reasons for its decision."
PROCEEDINGS BEFORE THE COMMISSION
28. The applicants lodged their application with the Commission
on 5 May 1987. They alleged in the first place that their case had not
been given a fair hearing conducted within a reasonable time by an
impartial tribunal (Article 6 para. 1 of the Convention) (art. 6-1).
They claimed in addition that they had been deprived of their right of
access to the courts to challenge the public interest justification for
the expropriation and the necessity of the immediate transfer of their
property (Articles 6 para. 1 and 13 of the Convention) (art. 6-1,
art. 13). Finally, they complained of discrimination in relation to
other Spanish citizens in that the latter were subject to the ordinary
law on expropriations and could therefore institute proceedings in the
administrative courts (Article 14 read in conjunction with Articles 6
para. 1 and 13) (art. 14+6-1, art. 14+13).
29. On 6 November 1990 the Commission declared the first complaint
admissible and the remainder of the application (no. 12952/87)
inadmissible. In its report of 14 January 1992 (made under Article 31)
(art. 31), the Commission expressed the opinion that there had been a
violation of Article 6 para. 1 (art. 6-1) inasmuch as (a) the
applicants had not been given a fair hearing (thirteen votes to two)
and (b) the relevant proceedings had not been conducted within a
reasonable time (eleven votes to four). The full text of the
Commission's opinion and of the three separate opinions contained in
the report is reproduced as an annex to this judgment*.
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 262 of Series A
of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
AS TO THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA 1 (art. 6-1) OF THE
30. In the applicants' submission, their actions for the
restitution of their assets were not heard within a reasonable time as
required under Article 6 para. 1 (art. 6-1) of the Convention. In
addition, the proceedings conducted in the Constitutional Court failed
to comply with the principle of equality of arms, inherent in the right
to a fair trial as guaranteed under the same provision, according to
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ..."
The Government contested this view, whereas the Commission
subscribed to it.
A. Preliminary observations
31. The Government contended that the applicants' complaint was
directed solely at the first set of proceedings in the Constitutional
Court, to which Article 6 para. 1 (art. 6-1) did not apply; in
particular, as regards compliance with the "reasonable time"
requirement their initial application had cited only those proceedings.
It should, however, be noted that, when they lodged their
application with the Commission on 5 May 1987, the Audiencia provincial
of Madrid had only recently, three months earlier, declared admissible
their appeal from the judgment of 23 December 1986 (see paragraph 21
above); they could not therefore at that stage complain of the ensuing
delays, but they have done so since. In accordance with its
established case-law (see, among many other authorities, the Ringeisen
v. Austria judgment of 16 July 1971, Series A no. 13, p. 38, para. 93,
and pp. 40-41, para. 98, and the Capuano v. Italy judgment of
27 July 1987, Series A no. 119, p. 11, para. 22), the Court will
therefore examine all the proceedings in issue.
32. The applicability of Article 6 para. 1 (art. 6-1) to the
applicants' civil actions for the restitution of their assets is not
open to dispute. The Government maintained, however, that the
proceedings in the Constitutional Court should not be taken into
account in ruling on the question of "reasonable time". They also
claimed that the complaint as to the fairness of the latter proceedings
fell outside the scope of the aforementioned provision.
The issue of the applicability of Article 6 para. 1 (art. 6-1)
does not arise in precisely the same terms on both points.
B. Compliance with the "reasonable time" requirement
1. Period to be taken into consideration
33. The period to be taken into consideration began on
27 May 1983, when Zoilo, Rafael, Isidoro, Alfonso and María Dolores
Ruiz-Mateos brought their action in respect of half the capital of
RUMASA, thereby supplementing the action brought by
José María Ruiz-Mateos on 9 May 1983 in respect of the other half (see
paragraph 12 above). It ended on 25 February 1991, the date of the
judgment of the Audiencia provincial (see paragraph 24 above).
Notwithstanding the applicants' arguments to the contrary, the Court
does not regard their application of 6 March 1991 for the
interpretation of the judgment as relevant, because it had no bearing
on the outcome of the dispute.
34. In the Government's view, two lapses of time should be
deducted from the above period, one of more than twenty-six months at
first instance (5 October 1984 - 19 December 1986) and another of
eighteen months on appeal (9 July 1989 - 15 January 1991), when the
civil courts had to wait for the Constitutional Court's decision on the
questions which they had referred to it. The Government contended that
the proceedings in the Constitutional Court could not be regarded as
a stage in the civil proceedings. The task of the Constitutional Court
was not to rule on a specific case, but to "refine", from an objective
point of view, domestic law by annulling rules that were contrary to
35. According to the Court's well-established case-law,
proceedings in a Constitutional Court are to be taken into account for
calculating the relevant period where the result of such proceedings
is capable of affecting the outcome of the dispute before the ordinary
courts (see, inter alia, the Deumeland v. Germany judgment of
29 May 1986, Series A no. 100, p. 26, para. 77, the Poiss v. Austria
judgment of 23 April 1987, Series A no. 117, p. 103, para. 52, and the
Bock v. Germany judgment of 29 March 1989, Series A no. 150, p. 18,
para. 37). The Court sees no grounds for departing from this line of
authority so as to revert to the approach adopted in the Buchholz v.
Germany judgment of 6 May 1981 (Series A no. 42, p. 15, para. 48), as
it was urged to do by the respondent Government and by the German and
Portuguese Governments (see paragraph 5 above).
36. It is true that the constitutional proceedings in this case
took place in mid-course of the main action and not, as in the
above-mentioned cases, after its conclusion. However, in the Court's
view this circumstance, on which the Government laid particular stress,
on the contrary provides an additional reason for taking them into
account in the calculation of the period to be considered, especially
where they concern a preliminary issue (see the Giancarlo Lombardo
v. Italy judgment of 26 November 1992, Series A no. 249-C, p. 43,
The Government also invoked the "political nature" of the
Constitutional Court, which was not part of the judiciary. The
argument is not convincing: the Court has on more than one occasion had
regard to interlocutory proceedings conducted before political
institutions or administrative bodies or agencies (see, inter alia, the
Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56,
p. 21, para. 63, and the Martins Moreira v. Portugal judgment of
26 October 1988, Series A no. 143, pp. 19-21, paras. 55-60). What is
in issue in every case is the responsibility of the State (see the Foti
and Others judgment, cited above, ibid.)
37. In the present case the competent civil courts had considered
it necessary to refer to the Constitutional Court, at the plaintiffs'
request, the question of the conformity of Articles 1 and 2 of
Law no. 7/1983 with the Constitution (see paragraphs 15 and 22 above).
In order to do so, they had not only to establish the applicability of
the contested provisions, but also to show that their decision to refer
the matter was relevant, in other words to specify to what extent the
outcome of the proceedings before them depended on the validity of the
rules in issue (Article 35 para. 2 of Institutional Law no. 2/1979 -
see paragraph 27 above).
For its part, the Constitutional Court found the two questions
admissible, being satisfied that they fulfilled the formal conditions
laid down by the relevant law (see paragraphs 16 and 22 above).
As the questions referred concerned a preliminary issue, the
civil courts, in order to be able to give judgment, had to await the
decisions of the Constitutional Court, which were decisive for the
ruling in the main action.
The period to be taken into consideration therefore includes
the two sets of constitutional proceedings; this being so, it lasted
nearly seven years and nine months.
2. Reasonableness of the relevant period
38. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case.
(a) Complexity of the case
39. According to the applicants, the procedure for the examination
of questions of constitutionality is extremely simple because it does
not involve a hearing or the taking of evidence.
40. The Government replied that simplicity of procedure should not
be confused with the simplicity of the case. In fact this case was an
extremely complex one, not only because of the volume of the file
- approximately three thousand pages -, but also because of the serious
nature of the legal issues involved.
41. The Court considers that although the main civil action was
not complex at the outset, it subsequently gave rise to constitutional
questions which were undeniably difficult.
As the Commission correctly pointed out, however, the
procedure for resolving such questions did not involve steps liable to
lead to prolongations. The Constitutional Court had only to seek the
observations of the institutions of the State listed in
Article 37 para. 2 of Institutional Law no. 2/1979, observations
which were subject to a single and non-extendable fifteen-day
time-limit (see paragraph 27 above). In this instance the
Constitutional Court received the memorials of the Attorney General's
department and the Counsel for the State on 5 and 6 November 1984 for
the first question, and on 17 and 18 November 1989 for the second
question (see paragraphs 16 and 22 above).
(b) Applicants' conduct
42. According to the Government, the length of the civil
proceedings is explained to a large extent by the conduct of the
applicants themselves. To bring an action for restitution, which was
normally available to recover goods unlawfully obtained, in respect of
an expropriation effected by legislative action was an abuse of
process. The applicants had in reality only sought to precipitate an
early referral of the matter to the Constitutional Court by the
competent civil courts. By requesting the latter to submit questions
of constitutionality, they had considerably slowed down the proceedings
because the question of whether such a step was appropriate in the
context of summary proceedings was problematical and required careful
43. The Court is not persuaded by this argument. According to the
applicants, the expropriation in issue was equivalent to unlawfully
depriving them of their property because Articles 1 and 2 of Law
no. 7/1983 were contrary to the Constitution. If the Constitutional
Court had reached a similar conclusion, it would have declared the
provisions in question void, which would have deprived the impugned
measure of any legal basis. This was moreover also how the civil
courts and the Constitutional Court perceived the situation, as is
shown by the fact that they accepted the questions as admissible. In
addition, the applicants could not themselves file an amparo appeal
based on an interference with a right of property (see paragraph 26
above); it cannot be held against them that they had recourse to the
only means available to them under Spanish law of defending their
Furthermore, Mr José María Ruiz-Mateos protested at the
protracted nature of the proceedings in the Constitutional Court, but
to no avail because, in that court's opinion, he lacked locus standi
(see paragraph 17 above).
44. It is nevertheless true that the appeal hearing set down for
21 October 1988 was adjourned to 28 November at the applicants'
request; on that date they asked the Madrid Audiencia provincial to
stay the proceedings pending the decision of the European Commission
of Human Rights, with which they had recently lodged an application.
This interlocutory phase of the proceedings was not concluded until
7 July 1989, when their appeal against the refusal to stay the
proceedings was dismissed (see paragraph 21 above). It delayed the
decision in the appeal proceedings by a total of over eight months.
(c) Conduct of the competent authorities
45. The applicants held the competent authorities responsible for
the time taken to hear their action. Their complaint was in particular
directed against the Constitutional Court. In their view, that court
was aware of the urgency of the case and was already familiar with the
issues to which it gave rise, as it had dealt with them in examining
the appeal lodged by a number of members of Parliament against the
legislative decree of 23 February 1983 (see paragraph 9 above).
46. In the Government's submission, on the other hand, the civil
courts displayed the maximum dispatch possible. The Government
considered further that the constitutional proceedings had not been of
unreasonable length; these proceedings had given rise to issues that
were both complex and new, because in its judgment of 2 December 1983
the Constitutional Court had ruled only on the method of expropriation
chosen - the legislative decree - and not on the merits of the measure
(see paragraph 9 above).
47. The Court notes at the outset that at first instance there
were no notable interruptions, except to resolve the preliminary issue.
On appeal there were, however, two periods of inactivity. The
Audiencia provincial declared the appeal admissible on 5 February 1987,
but did not begin consideration of it until 26 June 1988 (see
paragraph 21 above), in other words sixteen months and three weeks
later. No step was taken in the proceedings during that period.
48. The Government stressed that the workload of the Madrid
Audiencia provincial had increased after 1985 as a result of the
restructuring of the Spanish judicial system by the Institutional Law
on the Judiciary. On 10 June 1988 the public authorities had, however,
taken remedial action by creating additional posts.
This argument is not convincing in that the measures
introduced were too late to have any effect in the present case (see,
inter alia, the Unión Alimentaria Sanders S.A. v. Spain judgment of
7 July 1989, Series A no. 157, pp. 15-16, para. 41).
49. The delay in question results essentially from the time taken
to examine the two questions of constitutionality. After the Attorney
General's department and the Counsel for the State had filed their
observations, the case remained dormant for more than twenty-five
months as regards the first question and for nearly fourteen months as
regards the second (6 November 1984 - 19 December 1986 and
18 November 1989 - 15 January 1991, see paragraphs 16, 19, 22 and 23
Yet, pursuant to Article 37 para. 2 of Institutional Law
no. 2/1979, the Constitutional Court ought to have given its decision
within fifteen days of receiving the memorials, with the possibility
of extending that period to thirty days (see paragraph 27 above). The
shortness of these time-limits shows the importance attached by the
Spanish legislature to the speedy hearing of a preliminary question of
50. The Government emphasised the specific character of the
structure and operation of the Constitutional Court. It comprises only
twelve members; it is independent of the three State powers and
competent to review their decisions. Under Articles 161 and 163 of the
Constitution, it enjoys very wide jurisdiction (see paragraph 26
above). The institutions of the State, the organs of the Autonomous
Communities, the ordinary courts and individuals may all apply to it.
Since its creation, it has, according to the Government, had a backlog
of business, a problem which is difficult to overcome in view of the
limited number of its members.
51. While attaching weight to the special features of
constitutional proceedings, the Court cannot help but consider that in
this instance those proceedings were too long. There was a connection
between the two questions, notwithstanding the difference in content;
in particular the Constitutional Court had already settled the issue
of relevance during its examination of the first question, so that it
did not need to do so in studying the second.
52. Nor should it be forgotten that what was at stake in this
case, not only for the applicants but also for Spanish society in
general, was considerable, in view of its vast social and economic
implications. The large number of persons concerned - employees,
shareholders and third parties - and the amount of capital involved
militated in favour of a prompt resolution of the dispute.
53. In the light of all of the circumstances of the case, the
Court finds that the proceedings exceeded a reasonable time within the
meaning of Article 6 para. 1 (art. 6-1), which has therefore been
violated on this point.
C. Right to a fair trial
54. The applicants' complaint under the fair trial principle is
directed solely at the proceedings in the Constitutional Court (see
paragraph 30 above), but given that those proceedings were preliminary
in nature, it is necessary to take account of the context in which they
arose, namely an action for the restitution of expropriated assets.
1. Applicability of Article 6 para. 1 (art. 6-1)
55. The Government denied that Article 6 para. 1 (art. 6-1) was
applicable, pleading that the right in issue was not a "civil right".
In support of this contention, they cited the specific nature of the
Constitutional Court's task and the features peculiar to questions of
constitutionality. The Constitutional Court's role was to ensure that
the legislature, the executive and the judiciary respected the
Constitution and not to rule on the rights and interests of
individuals. This specificity of its functions appeared even more
clearly in relation to proceedings of the type under review. Such
proceedings were instituted by the ordinary courts and were intended
to eliminate from the domestic legal system provisions contrary to the
Constitution. In this instance, there were no "parties" because
Institutional Law no. 2/1979 provided that only the representatives of
the State authorities and the Attorney General need be heard (see
paragraph 27 above). In addition, the judgment was notified solely to
the court which referred the question.
56. In their observations of 10 June and 27 August 1992 (see
paragraph 5 above), the German and Portuguese Governments drew
attention to the fact that the decision in the Ruiz-Mateos case would
be of great significance to those other member States of the Council
of Europe which have a constitutional court. The German Government,
citing the above-mentioned Buchholz judgment, maintained that
Article 6 para. 1 (art. 6-1) did not apply to proceedings conducted
before such courts. That had been the Federal Republic's understanding
when it had ratified the Convention. They supported the respondent
Government's argument, giving a broad outline of the rules in force in
Germany, which are moreover similar to the Spanish provisions. The
Portuguese Government took the view that, by reason of their nature,
structure and jurisdiction, constitutional courts fell outside the
ambit of Article 6 para. 1 (art. 6-1).
57. The Court is not called upon to give an abstract ruling on the
applicability of Article 6 para. 1 (art. 6-1) to constitutional courts
in general or to the constitutional courts of Germany and Portugal or
even of Spain. It must, however, determine whether any rights
guaranteed to the applicants under that provision were affected in the
58. The applicants conceded that constitutional proceedings did
not in general deal with disputes over civil rights and obligations.
However, they stressed the special features of Law no. 7/1983 on the
expropriation of RUMASA S.A., of which they were the shareholders.
Despite its status as a formal law, it was a concrete and specific
measure aimed at a group of companies listed in its annex (see
paragraph 10 above). The applicants emphasised that they could not
contest the expropriation in the civil courts unless the law was
declared invalid; yet such a ruling could only be made by the
Constitutional Court, following referral of the matter to it by Madrid
Court no. 18 or the Audiencia provincial.
59. The Court observes that there was indeed a close link between
the subject-matter of the two types of proceedings. The annulment, by
the Constitutional Court, of the contested provisions would have led
the civil courts to allow the claims of the Ruiz-Mateos family (see
paragraphs 15-16, 20, 22-24, 27 and 37 above). In the present case,
the civil and the constitutional proceedings even appeared so
interrelated that to deal with them separately would be artificial and
would considerably weaken the protection afforded in respect of the
applicants' rights. The Court notes that by raising questions of
constitutionality, the applicants were using the sole - and indirect -
means available to them of complaining of an interference with their
right of property: an amparo appeal does not lie in connection with
Article 33 of the Spanish Constitution (see paragraph 26 above).
60. Accordingly, Article 6 para. 1 (art. 6-1) applied to the
2. Compliance with Article 6 para. 1 (art. 6-1)
61. The Ruiz-Mateos family alleged a violation of the principle
of equality of arms. The Counsel for the State, their opponent in the
civil proceedings, was able to submit to the Constitutional Court
written observations on the lawfulness of Law no. 7/1983, whereas they
were not allowed to do so because they were held to lack locus standi;
they were even refused the possibility of challenging two judges, whose
impartiality appeared to them to be open to doubt (paragraph 18 above).
The Commission agreed in substance with this view.
62. In the opinion of the Government, however, the Counsel for the
State at the Constitutional Court could not be regarded as the
applicants' opponent because it was necessary to distinguish between
the executive as a branch of State authority and the administrative arm
of government. It was the latter, and more specifically the
Directorate General for National Assets, in whose possession the RUMASA
S.A. shares had been since the expropriation, which was the plaintiffs'
opponent in the restitution action (see paragraphs 9 and 13 above).
On the other hand, neither it nor the Ruiz-Mateos family were parties
to the preliminary proceedings in question. The applicants moreover
knew this full well and would never have raised the issue in a Spanish
court. It was true that the executive and the administrative
authorities were represented by officials from the same civil service
corps, but the officials in question were acting on behalf of different
branches of government.
63. The Court will examine the complaint in the light of the whole
of paragraph 1 of Article 6 (art. 6-1) because the principle of
equality of arms is only one feature of the wider concept of a fair
trial, which also includes the fundamental right that proceedings
should be adversarial (see, among other authorities, mutatis mutandis,
the Brandstetter v. Austria judgment of 28 August 1991, Series A
no. 211, p. 27, para. 66).
The right to an adversarial trial means the opportunity for
the parties to have knowledge of and comment on the observations filed
or evidence adduced by the other party (see, mutatis mutandis, the same
judgment, p. 27, para. 67). Admittedly proceedings before a
constitutional court have their own characteristics which take account
of the specific nature of the legal rules to be applied and the
implications of the constitutional decision for the legal system in
force. They are also intended to enable a single body to adjudicate
on a large number of cases relating to very different subjects.
Nevertheless, it may happen that, as here, they deal with a law which
directly concerns a restricted circle of persons. If in such a case
the question whether that law is compatible with the Constitution is
referred to the Constitutional Court within the context of proceedings
on a civil right to which persons belonging to that circle are a party,
those persons must as a rule be guaranteed free access to the
observations of the other participants in these proceedings and a
genuine opportunity to comment on those observations.
64. The Court sees no reason to depart from this rule in the
present case. It cannot accept the distinction drawn by the
Government. In view of the closeness of the link noted above (see
paragraph 59 above), it would be artificial to dissociate the role of
the executive - on whose authority the decision to expropriate was
taken - from that of the Directorate General for National Assets - the
beneficiary of the measure -, and even more so to purport to identify
a real difference between their respective interests.
65. In November 1984 and November 1989 the Counsel for the State
filed with the Constitutional Court, by virtue of Article 37 para. 2
of Institutional Law no. 2/1979 (see paragraph 27 above), observations
affirming the constitutional validity of Law no. 7/1983 (see
paragraphs 16 and 22 above). The applicants were not given an
opportunity to reply thereto, although it would clearly have been in
their interests to be able to do so before the final decision.
66. According to the Government, the Constitutional Court was able
to examine the applicants' arguments by referring to the very
voluminous memorials which the latter had submitted in the civil courts
pursuant to Article 35 para. 2 of Institutional Law no. 2/1979 (see
paragraphs 14 and 22 above) inasmuch as the full files of the
proceedings in those courts had been transmitted to it.
67. The Court does not find this argument convincing.
In the first place, Article 35 para. 2 fixes for the parties
- in this instance the applicants and the Counsel for the State - and
for the Attorney General's department a single time-limit for putting
forward their views on the appropriateness of submitting a preliminary
question. Whereas the applicants' written submissions also raised
substantive issues, those of the Counsel for the State, which were very
short, dealt only with procedural questions. In any event, even if the
latter had also given his opinion on the merits, the applicants would
not have been able to challenge it in the civil courts or in the
Constitutional Court. On the other hand, the Counsel for the State had
advance knowledge of their arguments and was able to comment on them
in the last instance before the Constitutional Court.
68. There has accordingly been a violation of Article 6 para. 1
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
69. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
The Ruiz-Mateos family sought two thousand billion
(2,000,000,000,000) pesetas for the damage allegedly deriving from the
violation of their right to a fair trial, three hundred billion of
which were claimed in respect of deterioration of their commercial
reputation and loss of customers; they did not seek the reimbursement
70. The violations found in this case relate to the failure to
conduct proceedings within a "reasonable time" and the non-adversarial
nature of the proceedings in the Constitutional Court (see paragraphs
53 and 68 above). There is nothing to suggest that, in the absence of
these violations, the Constitutional Court would have declared the
impugned law void and the European Court cannot speculate as to the
conclusion which the national court would have reached (see, as the
most recent authority, the de Geouffre de la Pradelle v. France
judgment of 16 December 1992, Series A no. 253-B, p. 44, para. 39).
Consequently, as was argued by the Government and the Commission, no
causal connection between the alleged damage and the violations found
has been established.
FOR THESE REASONS, THE COURT
1. Holds by twenty-two votes to two that there has been a
violation of Article 6 para. 1 (art. 6-1) as regards the
length of the proceedings;
2. Holds by eighteen votes to six that there has been a
violation of that provision as regards the fairness of the
proceedings conducted in this case in the Constitutional
3. Dismisses unanimously the applicants' claims for just
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 23 June 1993.
Signed: Rudolf BERNHARDT
Signed: Marc-André EISSEN
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr Bernhardt;
(b) dissenting opinion of Mr Thór Vilhjálmsson;
(c) concurring opinion of Mr Gölcüklü, approved by Mr Walsh;
(d) partly concurring, partly dissenting opinion of
(e) partly dissenting opinion of Mr Pettiti, approved by
Mr Lopes Rocha and Mr Ruiz-Jarabo Colomer;
(f) concurring opinion of Mr De Meyer;
(g) partly dissenting opinion of Mr Baka.
Initialled: R. B.
Initialled: M.-A. E.
PARTLY DISSENTING OPINION OF JUDGE BERNHARDT
1. I agree with the majority of my colleagues that Article 6
para. 1 (art. 6-1) of the Convention has been violated as far as the
length of the proceedings is concerned. If the final decision in a
civil action before an ordinary court is dependent on an interim
procedure in the Constitutional Court, the length of this interim
procedure cannot be deducted from the total length of the proceedings;
the case itself must be settled in a reasonable time.
2. Different considerations apply in respect of the fairness or
the so-called adversarial character of the proceedings as far as the
interim procedure before the Constitutional Court is concerned.
I admit that the circumstances in the present case may appear
unsatisfactory: the parties in the proceedings before the Spanish civil
courts were the applicants on the one side and the State on the other
side. When the question of the compatibility of the nationalisation
law with the Constitution was referred to the Constitutional Court,
only the State was entitled to submit further observations, the
applicants were not permitted to do the same and to comment on the
arguments of the Government. Even if this inequality is mitigated by
the fact that the main arguments of the applicants had already been
developed during the proceedings before the civil courts, and the files
containing these arguments were available to the Constitutional Court,
the impression remains that the "parties" did not have the same
But the question remains whether Article 6 (art. 6) of the
Convention is applicable also to the proceedings in the Constitutional
Court. These proceedings concern exclusively the legal question of the
compatibility of the law in question with the constitution, and they
are not designed to determine civil rights; Article 6 (art. 6) of the
Convention is therefore not applicable. The distinction seemingly
drawn in paragraph 63 of the judgment between "a law which directly
concerns a restricted circle of persons" and other more general legal
provisions is in my view neither practicable nor suitable for the great
variety of modern legislation.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
European states apply different methods in order to ensure the
compatibility of legislation with their constitutions. Some of the
methods used are outside the court system of the state concerned and
give individual citizens no possibility to intervene. Some states have
chosen a method according to which draft legislation is scrutinised at
a certain stage of its preparation either before or after presentation
to parliament. In other countries constitutional review is entrusted
to courts or court-like institutions of various types. In some
countries there seems to be no constitutional review. In others the
practical possibilities of such a review may be limited.
Under the Spanish system a constitutional court has been set
up which has procedural rules enabling individuals to submit their
views indirectly through the ordinary courts. This is set out in
detail in the judgment in this case.
In my opinion, our Court cannot demand that access to the
Constitutional Court in Spain be regulated in a specific way as is
required by the majority of our Court. Given the nature of its role
and competence, proceedings before the Spanish court do not, in my
opinion, fall within the field delimited by the wording of Article 6
(art. 6) of the Convention.
CONCURRING OPINION OF JUDGE GÖLCÜKLÜ, APPROVED BY JUDGE WALSH
Although I agree with the conclusions in paragraphs 53 and 68
of the judgment, I consider it necessary to clarify my position on the
applicability of Article 6 para. 1 (art. 6-1).
In the first place, there is in my view no doubt that the
Spanish Constitutional Court must be regarded as a "tribunal" within
the meaning of Article 6 (art. 6) of the Convention, despite its
specific nature, its structure and its jurisdiction (see paragraph 56
of the judgment). It must in principle respect the requirements of
that provision, even though its jurisdiction ratione materiae may mean
that it is permissible in certain circumstances for limitations to be
placed on, or exceptions allowed to, the rights guaranteed under
Article 6 para. 1 (art. 6-1).
To reach this conclusion I start, as in paragraph 60 of the
judgment, from the idea that Article 6 (art. 6) is indeed applicable
in this instance and that it is so on the basis of the Court's
In the first place, I consider, like the Commission, that the
proceedings before the Constitutional Court concerned a "right" within
the meaning of Article 6 para. 1 (art. 6-1). There was a dispute
(contestation) over the very existence of a right which could be said,
on arguable grounds, to be recognised under domestic law (see, as the
most recent authority, the Kraska v. Switzerland judgment of
19 April 1993, Series A no. 254-B, p. 48, para. 24). Moreover, the
Spanish courts acknowledged this, because they expressed doubts on the
constitutionality of Law no. 7/1983 and observed that if the
Constitutional Court found the legislation in question to be
incompatible with the Constitution, the applicants' claims would have
to be allowed. The Constitutional Court ruled the questions referred
by those courts admissible. The applicants could therefore reasonably
claim to have been deprived of the enjoyment of their shares in
circumstances contrary to the law (see, mutatis mutandis, the Lithgow
and Others v. the United Kingdom judgment of 8 July 1986, Series A
no. 102, p. 70, para. 192).
As to the question whether the right in issue was a "civil"
right, the relevant criterion is in my view that which the Court
applied in paragraph 35 of the judgment in order to determine the
period to be taken into consideration as regards compliance with the
"reasonable time" requirement, namely the potentially decisive
influence of the Constitutional Court's decision on the outcome of the
civil proceedings (see the Bock v. Germany judgment of 29 March 1989,
Series A no. 150, p. 18, para. 37). Indeed, according to the Court's
case-law, this criterion applies to each of the aspects of the right
protected by Article 6 para. 1 (art. 6-1) (see the Ringeisen v. Austria
judgment of 16 July 1971, Series A no. 13, p. 39, para. 94, and the
Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117,
p. 17, paras. 34-35).
This line of authority received support very recently from the
Kraska v. Switzerland judgment of 19 April 1993, concerning the right
to a fair trial. The Court reiterated in that decision that
"proceedings come within the scope of [Article 6 para. 1] (art. 6-1),
even if they are conducted before a constitutional court, where their
outcome is decisive for civil rights and obligations" (Series A
no. 254-B, pp. 48-49, para. 26). The circumstances referred to in
paragraph 59 of the judgment lead me to the view that that was the case
in this instance.
I therefore conclude, with the majority of the Court, that
Article 6 para. 1 (art. 6-1) was applicable in the present case and
that, for the reasons indicated by the Court in paragraphs 61 to 68 of
the judgment, that provision has been breached.
PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MATSCHER
A. Introductory remarks
To my regret I am unable either to accept fully the reasoning
of the judgment concerning the first limb of the case (although I
approve the conclusion, namely the finding of a violation of
Article 6 para. 1 (art. 6-1) from the point of view of "reasonable
time"), or to subscribe to the Court's reasoning and conclusion
regarding the second limb, concerning the principle of "fair trial".
In order to clarify my position, I should like to make the
1. The case originated in an expropriation carried out under a
law, which moreover is flawed by reason of its being a law made for a
specific occasion (Massnahmegesetz - law dealing with a special
individual case), thus depriving the applicants of any normal legal
means of contesting the expropriation. However, as Spain had not
ratified Protocol No. 1 (P1) at the material time, the applicants
cannot rely on the protection which, under the Convention, Article 1
of that Protocol (P1-1) afforded them; accordingly they cannot invoke
Article 13 (art. 13) of the Convention either.
2. In order to precipitate a review of the expropriation law in
the Constitutional Court, they instituted what amounted to proceedings
to recover possession (interdicto de recobrar), which as regards the
substance (the restitution of the property) was from the outset bound
to fail, since an action for restitution (rei vindicatio) could not
succeed unless the expropriation law was declared void as
Nevertheless the proceedings to recover possession, as such,
may at a stretch be regarded as covered by Article 6 (art. 6) of the
Convention (what is debatable in my view is whether the "right" invoked
by the applicants was in fact arguable).
3. While I deplore the clearly unsatisfactory legal position in
the case before us, it is not for the Convention organs to "allow" the
applicants' claims by having recourse to Article 6 (art. 6) in order
to remedy the situation under domestic law, which is undoubtedly
deficient from the point of view of the general principles of law, but
not contrary to the Convention, for the reasons explained under no. 1.
B. Compliance with the reasonable time requirement
As the possession proceedings were covered by Article 6
para. 1 (art. 6-1) of the Convention (see paragraph 2 in fine above)
they must satisfy the requirements of expedition laid down therein.
As regards the period to be taken into consideration, the two
sets of interlocutory proceedings in the Constitutional Court must be
taken into account, even though Article 6 para. 1 (art. 6-1) is not
directly applicable to such proceedings. They are taken into account
solely from a factual point of view as interlocutory proceedings which
resulted in the suspension of the main proceedings (the possession
action). In this context it is in principle immaterial whether the
proceedings are preliminary proceedings or merely interlocutory
proceedings before any other judicial, administrative or disciplinary
body of the State in question (see the Lechner and Hess v. Austria
judgment, Series A no. 118, p. 16, para. 39, last sub-paragraph, and
pp. 19 et seq., paras. 52 et seq.), as the latter also incur
international responsibility in respect of the length of such
interlocutory proceedings (the situation would be different for
interlocutory proceedings which fall outside the control of the State
in question, for example preliminary proceedings in the Court of
Justice of the European Communities under Article 177 of the EEC
From this point of view, I consider the Court's reasoning
superfluous in so far as it lays too much stress on the preliminary
nature of the constitutional proceedings in issue (see paragraph 37 of
the judgment). The justification for taking those proceedings into
account for the overall assessment of the duration of the main
proceedings derives simply from the fact that they were interlocutory
proceedings which resulted in the interruption of the main proceedings.
On the other hand, interlocutory proceedings necessarily
increase the complexity of the main proceedings and therefore
constitute a factor which must be taken into consideration when
determining the overall length of the main proceedings.
Even if allowance is made for that factor, the main
proceedings as a whole exceeded a reasonable time within the meaning
of Article 6 para. 1 (art. 6-1) of the Convention.
C. The right to a fair trial
Article 6 para. 1 (art. 6-1) provides for a right to a fair
trial in so far as the object of the proceedings in question is a
decision on a contestation (dispute) over a civil right or obligation
(or in the determination of any criminal charge).
This "fair trial" guarantee applies equally for preliminary
interlocutory proceedings in so far as the object of such proceedings
is also a matter covered by Article 6 (art. 6), the mere fact that they
are preliminary (or "decisive") for proceedings subject to Article 6
para. 1 (art. 6-1) being immaterial in this respect.
To give an example: in divorce proceedings involving foreign
elements, the nationality of the spouses is a preliminary issue
inasmuch as the substantive law applicable in the case depends on this
issue and the decision taken thereon by the competent administrative
authority binds the courts; nevertheless, the procedure concerning
nationality is not covered by Article 6 (art. 6). It would be possible
to give innumerable examples of proceedings which are in one way or
another preliminary to the decision on a dispute over a civil right,
but that does not mean that the interlocutory proceedings in question
are covered by Article 6 para. 1 (art. 6-1).
The present case provides another example. The outcome of the
constitutional proceedings determines a preliminary issue for the
civil dispute. However, the subject of the constitutional proceedings
is not a dispute over a civil right, but the review of
the constitutionality of a law; the fact that in this instance the law
subject to constitutional review was a law adopted to deal with a
special individual case makes no difference in this connection.
Moreover, parliamentary proceedings to amend the law in question would
likewise be "preliminary" for a civil dispute, but no one would seek
to apply the procedural guarantees of Article 6 (art. 6) to them.
If the question is approached solely on the basis of
well-defined legal classifications, the conclusion must be that
recommended in this dissenting opinion, namely the non-applicability
of Article 6 para. 1 (art. 6-1) to the constitutional proceedings in
the present case.
The Court reached a different conclusion by making vague
references to equally vague and uncertain notions ("close link",
between the subject-matter of the two types of proceedings, "so
interrelated", at paragraph 59), indeed even more vague than those it
had developed in other circumstances, such as the Ringeisen rule, whose
use in the present case confirms its fallacious nature, to which I have
drawn attention on other occasions (separate opinion in the König v.
Germany case, Series A no. 27, pp. 46 et seq., and Le Compte,
Van Leuven and De Meyere v. Belgium case, Series A no. 43, pp. 35
et seq.). In any event, they are not sufficient to constitute solid
and convincing reasons for the applicability of Article 6 para. 1
(art. 6-1) to a given procedure.
D. Consequences of the approach adopted by the Court
As in other cases the "policy" of extending excessively (in
other words beyond its natural and typical scope) the applicability of
Article 6 para. 1 (art. 6-1) results inevitably in the limitation of
the substance of the procedural guarantees contained therein in a way
which is scarcely compatible with the aim of the provision (see my
separate opinion in the Le Compte, Van Leuven and De Meyere case, cited
above, pp. 37 et seq.).
I observe this phenomenon in this case too. Even if due
regard is had to the particular features and the specificity of
constitutional proceedings (paragraph 63 of the judgment), it may be
asked whether the substance of the procedural guarantees secured under
Article 6 para. 1 (art. 6-1) is still protected (this could already be
seen in the Commission's decision on the admissibility of
6 November 1990, paragraph 4 of the "Law" part).
PARTLY DISSENTING OPINION OF JUDGE PETTITI, APPROVED BY
JUDGES LOPES ROCHA AND RUIZ-JARABO COLOMER
I voted with the majority for the applicability of Article 6
(art. 6) as regards the length of the proceedings, but for different
reasons. Where the procedure in question is an interlocutory procedure
or a preliminary question procedure which under the national rules on
jurisdiction goes up to the Constitutional Court, it is my opinion that
the proceedings in such a Constitutional Court contribute to the
overall length and that therefore the period of stagnation can be
examined from the point of view of Article 6 (art. 6) concerning the
reasonable length of proceedings.
The position is completely different in regard to the
applicability of Article 6 (art. 6) for all the rules of fair trial
- public and adversarial proceedings, equality of arms etc. - at the
stage of Constitutional Court proceedings. The question cannot be
examined without first defining the nature and function of a
Constitutional Court, the proceedings, the parties and civil rights and
To define a Constitutional Court or a Supreme Court it is
necessary to identify its functions, which may vary from State to
State. Where a Constitutional Court or a Supreme Court has the task
of trying a Head of State or ministers, it is performing a judicial
function in the traditional sense. Some such courts have jurisdiction
to hear electoral disputes under a different procedure.
Where the task of the Constitutional Court or Supreme Court
is to examine the compatibility of a law with the Constitution, it is
acting as a supreme constitutional organ, whose role is to ensure the
respect of the separation of powers and to safeguard fundamental
values, constitutional rights being regarded as equivalent in part to
fundamental rights. This role closely resembles that of the European
Court, which must ensure respect of human rights and the compatibility
of national decisions with the requirements of the Convention. At
present the applicants in the system of the European Convention on
Human Rights are still not parties to the proceedings before the
European Court. In addition, the latter's rulings do not take effect
The nature of a Constitutional Court is by definition
"political" in the highest sense of the term. It is therefore a "sui
generis" court which is not equivalent to an ordinary or traditional
court, before which opposing parties appear and whose function is to
resolve a dispute between the latter.
Some Constitutional Courts are confined almost exclusively to
resolving disputes between the political authorities or to settling
disputes deriving from the operation of political powers and the
organisation of those powers, or verifying that Parliament respects its
powers as delimited by the Constitution and ensuring that domestic
elections are lawfully conducted (see J. Robert, General Report,
Conference of European Constitutional Courts, 1993, and M. Fromont,
Justice constitutionelle en Europe).
The constitutional review may be purely abstract, concern a
general rule, be initiated by a political authority and lead to an
annulment or declaration of nullity "erga omnes". The concrete review
allowed under certain constitutions always concerns the
constitutionality of a rule of law, but may be instigated at the
request of a judge or on the initiative of an individual. However,
this relates solely to referral to the Constitutional Court and does
not concern the access of an individual to the constitutional
The very diversity of the systems adopted by those of the
member States who have set up a Constitutional Court or a
Constitutional Council serves to emphasise how closely these questions
are linked to the historical and political traditions of each State.
Some Courts rule in abstracto, others, in abstracto and in concreto,
without however according individuals the status of party.
Professor Jacques Robert's general report in May 1993 to the
Conference of European Constitutional Courts set out in detail these
different features (in particular for Germany, Spain, Belgium and
In that same report attention was drawn to the differences of
approach as regards the Constitution and the case-law concerning the
incorporation or lack thereof of the European Convention, with the rank
of superior law or inferior law - which, in my view, underlined the
care which is necessary in interpreting the Convention from the point
of view of inter-State relations. Regard may be had in this respect
to the differences between the procedures under the European Convention
for State applications and individual applications, the specific
machinery of Article 177 for twelve of the States of the Council of
Europe and the special status of the Treaty of European Union. The
recognised principle is that the authority with power to draft and
amend the Constitution is supreme (see Conseil constitutionnel,
2 September 1992).
In so far as constitutional rights correspond to fundamental
rights, a question may also arise under the European Convention in this
If a law, even one which has been found to be constitutional
at national level, is contrary to the Convention, the Convention's
machinery may be used, but without interference in the constitutional
If a law which is theoretically contrary to the Convention has
not been found to be constitutional, it is clearly not necessary for
the Convention institutions to review the operation of the
Constitutional Court. Certain constitutional rights are not included
in the fundamental rights guaranteed under the European Convention on
It is therefore necessary to draw essential distinctions in
approaching the problem from the point of view of Article 6 (art. 6)
of the Convention. Even in the Community system under the Treaty of
Rome, the political question of the control by parliaments of the
constitutionality of Community directives remains unanswered in 1993;
yet certain of these directives may have an effect on fundamental
rights. There is a risk that the decision in the Ruiz-Mateos case may
have to some extent a more profound effect than a judgment following
a State application. Yet it is accepted in the system of the European
Convention on Human Rights itself that an application of the latter
kind is governed by special rules.
The nature and function of the Constitutional Court means that
each sovereign State determines the rules governing referral thereto.
In the various national systems, the rules governing such referral are
very diverse: head of State, speakers of the parliamentary assembly
(with or without quota), various levels of courts, individuals through
the intermediary of courts.
Several member States of the Council of Europe do not have a
Constitutional Court, and this is not contrary to the Convention. Each
State is sovereign in its decision whether or not to have a
Constitutional Court; each State is sovereign in determining the rules
governing referral to such an organ. Those responsible for drafting
the European Convention and the State signatories thereto never
considered giving up sovereignty in these areas. Constitutional review
is a review of "constitutional lawfulness". That being so, in the
systems which allow, as in Spain, individuals, through the intermediary
of courts, to raise an objection as to constitutionality, does this
right of indirect referral confer on such individuals the status of
"parties" to the proceedings?
Does the procedure in the Constitutional Court give to this
stage in the proceedings the character of proceedings falling within
the ambit of Article 6 (art. 6)?
These are the basic issues which arise in the Ruiz-Mateos
In my view the majority of the Court was influenced by the
fact that the law adopted concerning the Ruiz-Mateos group had the
effect of an indirect expropriation without fair compensation, but the
European Court was not called upon to examine this question because
Spain had not at the time ratified Protocol No. 1 (P1) to the
The majority of the Court would also appear to have been
guided by the fact that the law was directed at a limited category of
persons. The judgment uses the curious expression "a restricted circle
of persons" (see paragraph 63), which has no precise legal meaning.
This gives rise to an entirely different question. May a
State adopt specific legislation, "made to measure", directed at a
limited category of persons?
This type of legislation exists in all the member States of
the Council of Europe, in particular in matters relating to tax. It
is not contrary to the Convention. Even if the European Court wished
to express an opinion in passing on the nature and scope of such laws,
it ought at least to have done so on the basis of precise legal
Under what conditions does a law become specific or "made to
In such cases, what are the criteria, the quotas? Can such
laws be contrary to the Constitution and on the basis of what criteria?
In such circumstances, do all the persons concerned thereby become
parties to the constitutional proceedings?
It is my opinion that all this area falls outside the
jurisdiction of the European Court and the field of application of the
European Convention itself.
The Constitutional Court's decision takes effect on the whole
of the national territory. If it declares the law invalid, the latter
can no longer be relied upon against the persons concerned. If it
finds the law to be valid, the law will be binding on all those to whom
it is addressed.
That is why, inter alia, it cannot be suggested that all the
addressees of the law should be able to have access to the files in the
Constitutional Court, even if referral thereto may be initiated in
certain States by an application from individuals, where the
application is allowed by a national court which refers the question
of constitutionality to the Constitutional Court.
But in the confrontation between the law and the Constitution
before the Constitutional Court, only the legislature or the political
organ which has referred the matter or the court which has raised the
question may be permitted to examine the file before the Constitutional
To seek to confer the status of parties on individuals, where
a court refers a question of constitutionality, would have the effect
of altering the constitutional power of a sovereign State to determine
the rules governing the referral of matters to the Constitutional
If the applicant, where his request that a question be
referred is allowed, acquires the right of access to the memorials and
evidence in the constitutional proceedings, he becomes, to a certain
extent, a party to those proceedings; in other words, he is accorded
rights which are almost identical to those conferred on the authorities
with the right to refer to the Constitutional Court: speakers of
parliament, members of parliament, "Defensor del Pueblo", who are
entitled to make known their position.
The fact that the Counsel for the State, filing a memorial in
the Constitutional Court, is the same or belongs to the same corps as
the one who intervened in the Ruiz-Mateos trial, is not material,
because their intervention does not arise in the same institutional or
constitutional framework. There again, in my view, the majority has
reasoned as if there was a dispute between parties concerning civil
rights and obligations, in other words, within the meaning of the
European Court's case-law, on private rights, the denial of which could
have decisive consequences on the position of the person concerned.
The constitutional procedure is an encounter between a law and
the Constitution, a debate between the legislature and the institution
responsible for reviewing constitutionality with the aim of protecting
the fundamental constitutional rights.
The decision in the Ruiz-Mateos case may have the indirect
effect of compelling a State to change its constitutional system or the
procedure relating thereto, which, I consider, would not be in
conformity with the European Convention. It may be possible to
relativise to the maximum extent the interpretation of the judgment,
but, in my view, that would have called for a different reasoning.
Admittedly, in the Spanish system, no amparo appeal lies in
relation to Article 33 of the Constitution, but the European Convention
on Human Rights does not require such an appeal in the judicial systems
of the member States.
In any event, an amparo appeal did lie in respect of
Article 24 of the Constitution; it would have made it possible to raise
the question of fair trial on which the Constitutional Court could have
The Ruiz-Mateos group did not avail itself of this remedy.
It is true that the lower courts agreed to refer the questions
of constitutionality to the Constitutional Court. If they had refused
to do so (Article 37 of the Institutional Law), it would not have been
possible to rely on the European Convention and Article 6 (art. 6).
The fact that they agreed to refer the questions does not mean that
they recognised that the Ruiz-Mateos applicants had the status of
"parties" in the Constitutional Court.
Once the matter has been referred to that court, irrespective
of the method of referral, the confrontation between the law and the
Constitution becomes the subject of the proceedings.
Inevitably, the Constitutional Court's decision on the
validity of the law has consequences for all persons to whom the law
is addressed. This cannot confer on individuals the right to become
Thus, by way of comparison, the challenge to the
constitutionality of the Maastricht Treaty in the German Constitutional
Court does not confer on all German citizens the right to intervene in
the Constitutional Court or the right to have access to the latter's
From the point of view of Article 6 (art. 6) of the
Convention, the proceedings in the Constitutional Court of
confrontation between law and Constitution are not "proceedings" within
the implicit meaning of the Convention (paragraph 63 of the judgment).
In any event, they did not concern in this case civil rights and
obligations. The case was not about personal rights contested by
another party, but the conformity of the law in question with the
Constitution, regardless of any effects that law might have on the
persons to which it was addressed. Any law, even if it is in
conformity with the Constitution, gives rise to positive or negative
effects on the interests of individuals, but that does not mean that
such effects can give rise to disputes concerning civil rights and
The precedents cited by the majority in the judgment are not
in my view relevant, because they dealt with problems different from
those arising in the Ruiz-Mateos case or did not concern a
Constitutional Court ruling on the nature of the law.
In the Ruiz-Mateos case, the outcome of the constitutional
proceedings was of a preliminary nature but the proceedings did not
concern civil rights.
The application of Article 6 (art. 6) to constitutional
proceedings raises major problems. It is my opinion that Article 6
(art. 6) was conceived as applying to criminal trials and to
proceedings between parties before a court. To extend to the
constitutional courts the rules of fair trial, such as the principle
of adversarial process, equality of arms, the requirement that hearings
be public, would have very negative consequences on the constitutional
balance of States and would deform the rule of referral to transform
it into a right of access to files in a State and political dispute.
This view finds support in other authorities. Study of legal
dictionaries and other works shows that the terms "instance" and
"parties" have a limited scope. This is how the words "instance" and
"parties", as used in the previous case-law of the European Court, may
"Instance" : - procès où il y a demande et défense (Littré),
procédure judiciaire ayant pour objet de saisir le
tribunal d'une contestation (Larousse XIXe siècle),
procédure entre tel et tel (Dict. Académie)
- mise en oeuvre du droit qu'on a ou prétend avoir
- lien pour les parties (D. Capitant)
"Partie" : - qui plaide contre quelqu'un (Littré)
- personne qui plaide contre quelqu'un soit comme
demandeur, soit comme défendeur (Larousse XIXe
- partie litigante (D. Capitant).
Under these definitions, it cannot be accepted that applicants
such as the Ruiz-Mateos family, who have requested the referral of a
question of constitutionality, should become parties to the proceedings
or acquire a right of access to the file.
When the European Court previously expressed a view on the
question of Constitutional Courts, it was in the context of the
examination of the interpretation by such courts of provisions of the
European Convention, and in cases in which the national decisions might
violate the Convention.
The Ruiz-Mateos case did not concern the examination of a
Spanish law which would in theory have been contrary to Protocol No. 1
(P1) if Spain had ratified it, but a domestic confrontation between a
law and the Constitution.
Accordingly, I take the view that Article 6 (art. 6) was not
applicable as regards the fairness of the proceedings in connection
with access to the file. In any event there was no violation of
Article 6 (art. 6) on this point.
The general problem of the applicability of Article 6
(art. 6) to constitutional proceedings remains unanswered. The
interpretation may vary according to the systems and according to the
aspect of fair trial in question, if necessary taken separately from
the other elements thereof.
The future work of the Conference of European Constitutional
Courts, in co-operation with the European Court of Human Rights and the
Court of Justice of the Communities, will provide useful indications
for additional reflection, enriched by the experience of the
Constitutional Courts of new member States.
CONCURRING OPINION OF JUDGE DE MEYER
Any question concerning the determination of a right must be
able to be examined and decided in accordance with the principles laid
down in Article 6 para. 1 (art. 6-1) of the Convention. This is what
any person who has a legitimate interest in the solution of such a
question is entitled to require.
In the present case the applicants, as persons whose property
had been expropriated, could undoubtedly claim to have such an interest
in regard to the expropriation.
They were therefore entitled to have the case relating to the
expropriation heard in compliance with the above-mentioned principles,
both in the Constitutional Court, whose rulings were decisive in the
matter, and in the other courts before which the case came.
This was so in particular with regard to the length of the
proceedings and their fairness.
In these two respects the applicants' fundamental rights were
violated. Firstly, a reasonable time was exceeded*. Secondly, the
applicants were not authorised to submit their observations to the
Constitutional Court, whereas the Counsel for the State and the
Attorney General's department were allowed to lodge theirs**.
* See paragraphs 38 to 53 of the judgment.
** See paragraphs 16 to 18, 22, 65 and 67 of the judgment.
PARTLY DISSENTING OPINION OF JUDGE BAKA
I fully subscribe to the view of the majority that there has
been a breach as far as the fairness of the procedure is concerned in
the present case. I also consider that because of the very special
circumstances of the expropriation, Article 6 para. 1 (art. 6-1) is
applicable to these Constitutional Court proceedings, which have a
direct effect on the outcome of the civil proceedings.
On the other hand I have a different opinion concerning the
length of the proceedings. In the present case, I have come to the
conclusion that the matter was relatively complex, its political
background having necessarily contributed to the prolongation of the
I believe that the examination of constitutionality - which
could legitimately be regarded here as a part of the civil proceedings
- has to be assessed in the light of the special characteristics
inherent in these kinds of constitutional court procedures. The
particular features of such a system, such as the court's unique
organisational framework, its relatively small size, the breadth of its
jurisdiction and the possible political implications of its
constitutional decisions, make for a lengthier procedure. They
undoubtedly did so here.
I must also point out that the conduct of the applicants
significantly contributed to delaying the proceedings.
Accordingly in my view, there has been no violation of the
"reasonable time" requirement of the Convention.