European Court of Human Rights

Information Note on the Court’s case-law No. 154

July 2012

Del Rio Prada v. Spain - 42750/09

Judgment 10.7.2012 [Section III]

Article 7

Article 7-1

Heavier penalty

Postponement of date of applicant’s release following change in case-law after she was sentenced: violation

 

Facts - Between 1995 and 2000 the applicant was sentenced, in the context of eight sets of criminal proceedings, to various prison terms for several offences linked to terrorist attacks; the terms totalled more than 3,000 years. In November 2000, having regard to the close legal and chronological connection between the offences, the Audiencia Nacional combined the various sentences and fixed the term to be served at thirty years, in accordance with the maximum limit set out in the 1973 Criminal Code, in force at the relevant time. In April 2008 the authorities of the prison where the applicant was being held set July 2008 as the date for her release, after applying remission for work she had done in prison since 1987. In May the Audiencia Nacional asked the prison authorities to revise the planned release date and to recalculate it on the basis of a new case-law (the so-called “Parot” doctrine) laid down in a Supreme Court judgment of February 2006, under which the relevant entitlements to remission were to be applied to each sentence individually, and not to the limit of thirty years’ imprisonment. Applying that doctrine, the final date for the applicant’s release was set at 27 June 2017. The appeals lodged by the applicant were unsuccessful.

Law - Article 7: The finding of guilt and the various individual prison terms to which the applicant had been sentenced had as their legal basis the criminal law applicable at the relevant time. The parties’ arguments mainly concerned the calculation of the total sentence to be served as a result of the application of the rules on cumulative penalties, with a view to applying the rules on remission.

With regard to the accessibility of the law and the case-law, the 1973 Criminal Code referred to a term of thirty years’ imprisonment as the maximum limit for serving a sentence in the case of multiple sentences, without providing any specific rule on the calculation of remission where the total of the sentences imposed considerably exceeded that limit. Moreover, according to the relevant case-law, where an individual was sentenced to several prison terms, the prison authorities envisaged remission for work on the basis of thirty years’ imprisonment. On the strength of this practice, the applicant could legitimately have hoped to enjoy remission for the work she had carried out since 1987. Accordingly, at the time the applicant committed the offences and when the decision to combine her sentences was taken, the relevant Spanish law and case-law had enabled the applicant to foresee, to a reasonable extent in the circumstances, the scope of the sentence imposed and the manner of its execution.

When changing in 2008 the date set for the applicant’s final release, the Audiencia Nacional had relied on the new case-law set out in the Supreme Court’s judgment of 2006, long after the applicant had committed the offences and the 2000 decision on cumulative penalties, and had thus retroactively extended the sentence by almost nine years, thus completely invalidating the periods of remission for work. Since the change in the method of calculating the sentence to be served had had major repercussions on the effective length of the sentence, to the applicant’s detriment, the new calculation method concerned not only the execution of the sentence but also its scope. With regard to the foreseeability of that interpretation by the domestic courts, there was not a single relevant precedent along the lines of the 2006 judgment, and pre-existing prison and judicial practice was more favourable to the applicant. Moreover, the Supreme Court’s new case-law had rendered meaningless the periods of remission for work calculated under the new Criminal Code of 1995, which had abolished the system of remission for work and introduced stricter rules on the calculation of prison benefits for prisoners serving multiple long-term sentences. In this connection, while the Contracting States were free to amend their criminal policy, the domestic courts could not apply retroactively and to the detriment of the persons concerned the spirit of legislative changes that occurred after their offences had been committed. Thus, at the material time, it had been difficult, if not impossible, for the applicant to foresee the change in the Supreme Court’s case-law and therefore to know that the Audiencia Nacional would calculate remission on the basis of each of the individual sentences imposed, rather than on the total sentence to be served, thus extending considerably the duration of her imprisonment.

Conclusion: violation (unanimously).

Article 5: In view of the considerations which had led to the finding of a violation of Article 7, the applicant had not at the relevant time been able to foresee to a reasonable extent that the actual length of her deprivation of liberty would be extended by almost nine years, thus rendering meaningless the remission for work to which she had been entitled under the terms of the former Criminal Code of 1973. Accordingly, from the date on which the applicant ought to have been released pursuant to the legislation as interpreted prior to the change in case-law, her detention had not been “lawful”.

Conclusion: violation (unanimously).

Article 46: Having regard to the particular circumstances of the case and the urgent need to put an end to the violation of Articles 7 and 5 § 1, the Court considered that the Spanish State was to secure the applicant’s release at the earliest possible date.

Article 41: EUR 30,000 in respect of non-pecuniary damage.

 

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