European Court of Human Rights

Resolution CM/ResDH(2010)110¹

Execution of the judgment of the European Court of Human Rights

Dacosta Silva against Spain

(Application No. 69966/01, judgment of 2 November 2006, final on 2 February 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the unlawful nature of the house arrest imposed on the applicant, a member of the Civil Guard, by his superior (violation of Article 5, paragraph 1a) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2010)110

Information about the measures to comply with the judgment in the case of

Dacosta Silva against Spain

Introductory case summary

The case concerns the unlawfulness of the house arrest imposed on the applicant, a Civil Guard by his superiors in the context of military disciplinary proceedings. The applicant had been on sick-leave since 05/01/1998 when, learning that one of his relatives was seriously ill, and having informed the duty officer, he left for his parents’ home, where he stayed between 16/02/1998 and 24/02/1998. On 20/03/1998 his immediate superior imposed on him the disciplinary penalty of six days’ house arrest for being absent without leave. Appeals by the applicant against his superior’s order were all dismissed.

The European Court held that the house arrest caused a real privation of liberty in the sense of Article 5 and not simply a restriction on his liberty. Furthermore, this privation of liberty was inflicted by the applicant’s superior, who was not an independent body, nor was the sanction imposed in proceedings fulfilling the requisite legal guarantees (violation of Article 5, paragraph 1a)

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

No just satisfaction was awarded by the Court.

b) Individual measures

The house arrest imposed on the applicant was limited in time and he is no longer deprived of his liberty. Before the European Court he stated that the finding of violation of his rights under the Convention constituted sufficient vindication in respect of the damages he had sustained. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The new Law No.12/2007 removed the disciplinary sanction of the house arrest. The judgment has been translated into Spanish and published in the Ministry of Justice’s information bulletin (Boletín de Información, ministero de justicia).

III. Conclusions of the respondent state

The government considers that no individual measure is required, that the general measures adopted will prevent similar violations and that Spain has thus complied with its obligations under Article 46, paragraph 1, of the Convention.