[TRANSLATION]

THE FACTS

The applicants are seven Spanish nationals who live in Valencia: Ms Elena Riera Blume, Ms Concepción Riera Blume, Mr José Victor Riera Blume, Ms María Luz Casado Perez, Ms Daría Amelía Casado Perez, Ms María Teresa Sales Aige and Mr Javier Bruna Reverter, of the Valencia Bar, who represented them before the Court.

The facts as submitted by the parties may be summarised as follows.

A.  The circumstances of the case

During the night of 20 June 1984, in connection with criminal proceedings instituted by the public prosecutor that month, the homes of the applicants, who were presumed members of a sect, were searched following a preliminary investigation directed by Barcelona investigating court no. 6.

After the searches the applicants were transferred to the seat of the investigating court. In the light of information from A.T.V., an official at the Public Safety Department (“the DGSC”) of the Generalitat (government) of Catalonia, which was confirmed by the prosecuting authorities, to the effect that there was a danger that the members of the sect would react unpredictably if they were released, and might even commit suicide, the duty judge decided to release the applicants but gave oral instructions that those detained should be handed over to their families, to whom it should be suggested that it would be as well to have them interned in a psychiatric centre, on a voluntary basis as regards the persons of full age, in order for them to recover their psychological balance. The judge in question confirmed his oral instruction in a decision of 26 June 1984.

Subsequently, on the orders of L.R.F., the Director-General of Public Safety, the applicants were transferred to the premises of the DGSC and from there, on 21 June 1984, to a hotel some thirty kilometres from Barcelona. There they were confined to their rooms under the supervision of staff recruited for the purpose, one of whom remained permanently in each room, and they were not allowed to leave their rooms for the first three days. The windows of their rooms were firmly closed with wooden planks and the panes of glass had been taken out. While at the hotel the applicants were subjected to a process of “deprogramming” by members of “Pro Youth”, an association formed to fight against sects. On 29 and 30 June 1984, after being informed of their rights, the applicants were questioned by C.T.R., the Assistant Director-General of Public Safety, aided by A.T.V., in the presence of a lawyer not appointed by the applicants. On 30 June 1984 the applicants left the hotel.

As soon as they had regained their freedom, they lodged a criminal complaint alleging false imprisonment, offences against the exercise of personal rights, falsification of documents, usurpation of functions and misappropriation of goods against A.T.V., C.T.R. and L.R.F., the latter as Director-General of Public Safety. The prosecuting authorities filed submissions against the same persons accusing them of false imprisonment.

In a judgment of 7 March 1990 the Barcelona Audiencia Provincial acquitted the accused, holding that the acts complained of had been prompted by a philanthropic, legitimate and well-intentioned motive and that there had been no intention of depriving the applicants of their liberty, so that the offence of false imprisonment was not made out.

The prosecution and the applicants lodged appeals on points of law, which were dismissed by the Supreme Court on 23 March 1993.

The applicants lodged an appeal (recurso de amparo) with the Constitutional Court. In their appeal they alleged violations of the right to religious freedom (Article 16 of the Spanish Constitution), the right to liberty (Article 17 of the Constitution), the right to freedom of movement (Article 19 of the Constitution), the rights of the defence during their detention (Article 24 § 2 of the Constitution) and the right to a fair trial (Article 24 § 1 of the Constitution). They asked the Constitutional Court to quash the judgments of the Audiencia Provincial and the Supreme Court, to order the officials complained of to pay five million pesetas as compensation for the damage sustained and to make a declaration to the effect that the Generalitat of Catalonia was liable in default.

In the proceedings in the Constitutional Court the applicant José Victor Riera Blume was held to have withdrawn on account of failure, through his own fault, to comply with a formal requirement.

On 10 March 1997 the Constitutional Court dismissed the amparo appeal. In section 2 of the “As to the law” part of the judgment the court first examined a preliminary objection raised by Crown Counsel that appropriate remedies had not been used, namely a habeas corpus application or contentious-administrative proceedings, in the following terms:

“This Court, while holding that a person in possession of a fundamental right could choose the most effective remedy for infringement of that right …, has also stated that that it had to be understood ‘subject, of course, to the possibilities afforded by each class of court’.

Consequently, in order to resolve the issue raised by Crown Counsel, it would be necessary to determine what those possibilities were in the criminal courts. In the instant case, however, it is not necessary to do so since the appeal is being brought not against administrative acts but against judicial decisions. That being so, the issue is not – and cannot be – whether or not use was made of an effective judicial remedy (section 43(1) of the CCA [Constitutional Court Act]) but whether the remedies afforded by the judicial process chosen (section 44(1)(a) CCA) have been exhausted, an issue that has not been canvassed and could not be since the appellants went to the highest court, the Supreme Court, which heard the appeal on points of law in the case.”

That being said, the Constitutional Court pointed out, firstly, that there was no fundamental right to have a person convicted and, secondly, that it could not protect fundamental rights by quashing final substantive judgments whereby defendants had been acquitted. It also pointed out that, according to its case-law, the Constitution did not confer, as such, a right to secure criminal convictions of third parties. Furthermore, decisions of criminal courts were never decisions affecting fundamental rights of the prosecuting party. The court added that the decisions being challenged had not infringed any of the rights relied on by the six remaining appellants, seeing that they were limited to declaring that the acts with which the defendants were charged did not amount to the offences for which they were being prosecuted.

B.  Relevant domestic law

The Constitutional Court Act

Section 43

“1.  Infringements of rights and freedoms [against which an amparo appeal lies] originating in provisions, legal transactions or flagrantly illegal acts of the Government or authorities or officials, or of the collegiate executive organs of the Autonomous Communities or of their authorities or officials or agents, may give rise to an appeal (recurso de amparo) after the appropriate judicial remedies have been exhausted, in accordance with Article 53 § 2 of the Convention.

3.  Such an appeal may only be based on an infringement, by a decision that has become final, of the constitutional provisions which lay down rights and freedoms against which an appeal (recurso de amparo) lies.”

Section 44

“1.  Infringements of rights and liberties against which a constitutional appeal (recurso de amparo) lies which have their immediate, direct origin in an act or omission of a judicial body shall give rise to such an appeal if the following conditions are satisfied:

(a)  all possible judicial remedies have been exhausted;

(b)  the infringement of the right or freedom is immediately and directly attributable to an act or omission of the judicial body, irrespective of the facts which gave rise to the trial in which the act or omission occurred; in no circumstances shall the Constitutional Court be able to rule on those facts;

(c)  the constitutional right infringed was formally relied on during the trial at the earliest possible stage after the infringement became known.

2.  The time allowed for lodging an appeal (recurso de amparo) shall be twenty days from service of the decision given in the initial proceedings.”

Transitional provision no. 2

“Pending implementation of Article 53 § 2 of the Constitution, which lays down a judicial procedure for protecting fundamental rights and freedoms, the prerequisite judicial remedy to be exhausted before an appeal (recurso de amparo) can be lodged shall be the ordinary contentious-administrative remedy or the one provided in the second section of Law no. 62/1978 of 26 December 1978 on judicial protection of fundamental rights. To that end, the scope of that Law shall be deemed to be extended to cover all the rights and freedoms referred to in Article 53 § 2 of the Constitution.”

Artículo 43

1.  Las violaciones de los derechos y libertades antes referidos originadas por disposiciones, actos jurídicos o simplemente vía de hecho del Gobierno o de sus autoridades o funcionarios, o de los órganos ejecutivos colegiados de las Comunidades Autónomas o de sus autoridades o funcionarios o agentes, podrán dar lugar al recurso de amparo una vez que se haya agotado la vía judicial procedente, de acuerdo con el artículo 53.2 de la Constitución.

...

3.  El recurso sólo podrá fundarse en la infracción por una resolución firme de los preceptos constitucionales que reconocen los derechos o libertades susceptibles de amparo.”

Artículo 44

1.  Las violaciones de los derechos y libertades susceptibles de amparo constitucional que tuvieran su origen inmediato y directo en un acto u omisión de un órgano judicial podrán dar lugar a este recurso siempre que se cumplan los requisitos siguientes :

(a)  Que se hayan agotado todos los recursos utilizables dentro de la vía judicial.

(b)  Que la violación del derecho o libertad sea imputable de modo inmediato y directo a una acción u omisión del órgano judicial con independencia de los hechos que dieron lugar al proceso en que aquellas se produjeron acerca de los que, en ningún caso, entrará a conocer el Tribunal Constitucional.

(c)  Que se haya invocado formalmente en el proceso el derecho constitucional vulnerado, tan pronto como, un vez conocida la violación, hubiere lugar para ello.

2.  El plazo para interponer el recurso de amparo será de veinte días a partir de la notificación de la resolución recaída en el proceso judicial.”

Disposición transitoria segunda

En tanto no sean desarrolladas las previsiones del artículo 53 par. 2 de la Constitución para configurar el procedimiento judicial de protección de los derechos y libertades fundamentales se entenderá que la vía judicial previa a la interposición del recurso de amparo será la contencioso-administrativa ordinaria o la configurada en la Sección segunda de la Ley 62/1978 de 26 de Diciembre, sobre protección jurisdiccional de los derechos fundamentales, a cuyos efectos el ámbito de la misma se entiende extendido a todos los derechos y libertades a que se refiere el expresado artículo 53 par. 2 de la Constitución.”

The Spanish Constitution

Article 53 § 2

“Every citizen shall be able to apply to the ordinary courts for protection of the freedoms and rights recognised in Article 14 and in section 1.a of Chapter II by means of a procedure based on the principles of priority and expedition and, if need be, by means of an appeal (recurso de amparo) to the Constitutional Court ...”

Artículo 53 par. 2

Cualquier ciudadano podrá recabar la tutela de las libertades y derechos reconocidos en el artículo 14 y la Sección 1.a del Capítulo II ante los Tribunales ordinarios por un procedimiento basado en los principios de preferencia y sumariedad y, en su caso, a través del recurso de amparo ante el Tribunal Constitucional …”

Law no. 62/1978 of 26 December 1978 on judicial protection of fundamental personal rights

Section 1(2)

“Subject to what is provided in its last provision, the scope of the present Law shall include the freedoms of expression, assembly and association, freedom and secrecy of correspondence, freedom of religion and residence, the guarantee of the inviolability of the home, legal protection from unlawful detention and, in general, from penalties imposed in matters of public order.”

Part Two: Contentious-administrative safeguard

Section 6(1)

“In accordance with the rules of procedure laid down in the present part and, failing any special provision, with the general rules contained in the Contentious Administrative Jurisdiction Act, which shall be applied in lieu, a contentious-administrative appeal may be brought against such acts of the public authorities as are subject to administrative law and relate to the exercise of the fundamental personal rights referred to in section 1(2) of this Law.”

Artículo 1 par. 2

Quedan comprendidas en el ámbito de aplicación de esta Ley, sin perjuicio de lo establecido en su disposición final, las libertades de expresión, reunión y asociación, la libertad y secreto de la correspondencia, la libertad religiosa y la de residencia, la garantía de inviolabilidad del domicilio, la protección jurídica frente a las detenciones ilegales y, en general, frente a las sanciones impuestas en materia de orden público.”

Sección segunda: Garantía contencioso-administrativa

Artículo 6 par. 1

Contra los actos de la Administración pública, sujetos a Derecho administrativo, que afecten al ejercicio de los derechos fundamentales de la persona, mencionados en el artículo 1.2 de esta Ley podrá interponerse recurso contencioso-administrativo de conformidad con las reglas de procedimiento establecidas en la presente sección y, a falta de previsión especial, de acuerdo con las reglas generales de la Ley de Jurisdicción Contencioso-administrativa, cuya aplicación será supletoria.”

COMPLAINTS

The applicants argued, in the first place, that they had been treated as if they were mentally ill by persons wholly unqualified to determine such a question. They complained that they had undergone humiliating, oppressive and ultimately degrading treatment, contrary to Article 3 of the Convention. Relying on Article 5 of the Convention, they also complained that they had been unlawfully deprived of their liberty. They further alleged a violation of their right to respect for their private life as secured in Article 8 of the Convention. Lastly, they relied on their right to freedom of thought, conscience and religion as guaranteed in Article 9 of the Convention.

PROCEDURE

The application was lodged with the European Commission of Human Rights (“the Commission”) on 25 August 1997 and registered on 5 September 1997.

On 16 April 1998 the Commission decided to communicate the application to the Government, requesting them to submit in writing their observations on its admissibility and merits.

The Government submitted their observations on 15 July 1998 after an extension of time, and the applicants replied on 1 September 1998.

Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with the provisions of Article 5 § 2 thereof, the application falls to be examined by the Court.

THE LAW

The applicants complained that during their detention they had undergone humiliating, oppressive and degrading treatment, contrary to Article 3 of the Convention. They also complained that they had been unlawfully deprived of their liberty, contrary to Article 5 of the Convention. They further alleged a violation of their right to respect for their private life as secured in Article 8 of the Convention. Lastly, they relied on their right to freedom of thought, conscience and religion as guaranteed in Article 9 of the Convention.

A.  Exhaustion of domestic remedies

(a)  The Government raised an objection of inadmissibility based on failure to exhaust domestic remedies. In this connection, they pointed out that there were two avenues of appeal to the Constitutional Court by means of an amparo appeal: the one provided in section 43 and the one provided in section 44 of the Constitutional Court Act (CCA).

The appeal provided in section 43 CCA provided a remedy for violations of rights and freedoms committed by authorities or officials, as part of the special procedure for protecting fundamental rights that was provided in Article 53 § 2 of the Constitution and section 6(1) of Law no. 62/1978 of 26 December 1978 on judicial protection of fundamental personal rights. Under that procedure, the Constitutional Court dealt with matters that had been the subject of earlier proceedings, governed by Law no. 62/1978 of 26 December 1978.

As to the appeal provided in section 44 CCA, it was designed to remedy violations whose immediate and direct origin lay in an act or omission of a judicial body, regardless of the facts that had given rise to the proceedings.

In the instant case the Government noted that the remedy chosen by the applicants was the one provided in section 44 CCA. That remedy, however, could not in any circumstances give rise to a finding of a violation of the rights relied on by the applicants. The acquittal of the accused officials did not mean that there could not have been any violation of the applicants’ rights; it meant merely that the Spanish courts had held that the matters of which the officials stood accused did not amount to a criminal offence. That had been pointed out by the Constitutional Court in its judgment.

The sufficient, effective remedy in the instant case was the one provided in section 43 CCA through Law no. 62/1978. The Government observed that the effectiveness of that remedy had been acknowledged by the Court in the López Ostra v. Spain case (judgment of 9 December 1994, Series A no. 303-C, pp. 51-52, § 36) and by the Commission in the Piqué Huertas v. Spain case (application no. 27403/95, decision of the plenary Commission of 17 October 1996).

The applicants disputed the Government’s submissions. In their view, the remedy chosen, namely the one provided in section 44 CCA, was a sufficient and appropriate remedy. According to the settled case-law of the Convention institutions, the applicants could not be required to have exhausted all possible legal remedies. That had, moreover, been reiterated by the Court in the López Ostra judgment (p. 52, § 38). In this connection, the applicants drew the Court’s attention to the fact that in the López Ostra case the Government had alleged that the applicant should have used a criminal remedy and not the one provided in the Law of 1978, which was exactly the opposite of what they were now saying. In the applicants’ submission, there was no doubt that the chosen remedy, a criminal complaint, was sufficient and appropriate in the light of the violations in question. Furthermore, the Constitutional Court itself accepted in its judgment that the remedy chosen was sufficient. The applicants considered that the contentious-administrative remedy provided in the Law of 1978 could not in any way satisfy their desire for justice, as they were not seeking an administrative penalty for the cruelty they had suffered.

The Court reiterates that the rule laid down in Article 35 § 1 of the Convention that domestic remedies must be exhausted is in principle intended to afford Contracting States the opportunity of putting right the violations alleged against them (see, among other authorities, the following judgments: De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, Series A no. 12, pp. 29-30, § 50; Guzzardi v. Italy, 6 November 1980, Series A no. 39, pp. 26-27, § 72; and López Ostra cited above, p. 52, § 38). Furthermore, the condition that domestic remedies have to be exhausted must be applied with some degree of flexibility and without excessive formalism; applicants must use remedies that are normally available and sufficient in the domestic legal system to obtain redress for the breaches alleged.

In the instant case the Court observes that as soon as they had regained their freedom, the applicants lodged a criminal complaint against the Public Safety officials who had ordered their detention or taken an active part in it, and stated, in particular, that they had been unlawfully detained. Throughout the proceedings which they had brought in the domestic courts the applicants relied on arguments likely to show that they really had been unlawfully deprived of their liberty and that the other rights and freedoms they relied on before the Court had been infringed. In the Constitutional Court, for instance, in addition to Article 17 of the Spanish Constitution, which guarantees the right to freedom and security of the person, they relied on their right to freedom of religion (Article 16 of the Constitution), their right to freedom of movement (Article 19 of the Constitution) and their right to a fair trial (Article 24 § 1 of the Constitution).

The Court also notes that the Constitutional Court, although it dismissed the applicants’ amparo appeal, did not clearly indicate that the procedure chosen by the applicants to remedy the alleged violations was the wrong one. On the contrary, as the applicants pointed out, a reading of section 2 of the “As to the law” part of the judgment of 10 March 1997 suggests that the procedure chosen by the applicants was, if not the only possible one, at least appropriate to the violations they were complaining of. In the light of the foregoing, the Court considers that, having had ordinary recourse to directly effective and sufficient remedies available to them in domestic law for complaining of the violation of rights guaranteed by the Convention, the applicants were not required to bring other proceedings (see the López Ostra judgment cited above, p. 52, § 38). The Government’s objection must therefore be dismissed as regards the complaints based on Articles 5 and 9 of the Convention.

(b)  The Court also considers that in so far as it concerns the applicant José Victor Riera Blume, the application must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 § 4 of the Convention, seeing that he was held to have withdrawn in the amparo appeal proceedings in the Constitutional Court on account of failure, through his own fault, to comply with a formal requirement.

(c)  As to the complaints based on Articles 3 and 8 of the Convention, the Government emphasised that the applicants had omitted to raise them in the amparo appeal proceedings in the Constitutional Court and had accordingly not exhausted domestic remedies as required by Article 35 § 1 of the Convention. The applicants disputed the Government’s submission and asserted that they had submitted the complaints in substance to the Constitutional Court.

The Court observes that although in the amparo appeal proceedings in the Constitutional Court the applicants expressly relied on Articles 16 (right to freedom of ideas and religion), 17 (right to liberty and security of person), 19 (right to freedom of movement) and 24 (right to a fair trial) of the Spanish Constitution and amply set forth the arguments and grounds in support, they did not rely on Articles 15 and 18 of the Constitution, which, as to the first, prohibits torture and ill-treatment and, as to the second, protects the right of private life and the home, when nothing prevented them from doing so. That being so, they have not, as required by Article 35 § 1 of the Convention, exhausted the domestic remedies available to them in Spanish law. It follows that this part of the application must be rejected, pursuant to Article 35 § 4 of the Convention.

B.  Merits

The Government referred to the reasons given both by the Barcelona Audiencia Provincial and by the Supreme Court and submitted that the alleged violations did not amount to criminal offences.

The applicants considered that the unlawfulness of the deprivation of liberty they had suffered could not be seriously put in doubt, nor was it acceptable that such acts could be justified by “philanthropic” aims or by “good intentions” or by the fact that the applicants were considered to be members of a sect and therefore not entitled to the enjoyment of their civic rights.

The Court has made a preliminary examination of the parties’ submissions. It considers that the applicants’ complaints concerning their deprivation of liberty (Article 5 of the Convention) and respect for their right to freedom of thought, conscience and religion (Article 9 of the Convention) raise complex issues of law and fact which cannot be resolved at this stage of the examination and require an examination of the merits.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the complaints of the following applicants: Ms Elena Riera Blume, Ms Concepción Riera Blume, Ms María Luz Casado Perez, Ms Daría Amelía Casado Perez, Ms María Teresa Sales Aige and Mr Javier Bruna Reverter concerning the deprivation of liberty (Article 5 of the Convention) and the infringement of their right to freedom of thought, conscience and religion (Article 9 of the Convention);

Declares inadmissible the remainder of the application.

riera blume and others v. spain DECISION