The Annulment of the Parot Doctrine by the European Court of Human Rights. ECtHR Judgement of 21 October 2013: Much Ado Over a Legally Awaited Judgement

Which is clearly confirmed in view of STC 39/2012 of 29 March 2012, FJ 3, in which it is affirmed that “[…] neither selective voluntarism may be appreciated, nor unreasoned distancing from the criterion that has been applied, consolidated and maintained up until this point by the court, the decisions of which are challenged, which constitutes the essence of the application of inequality according to our case-law”.

The reasoning that was upheld in this regard in STC 39/2012, FJ 8 is as follows: “[…] in application of the existing legal framework at the time of committing the criminal act and calculating the remission of the sentence for work in accordance with the firm and intangible doctrine established by the court responsible for its enforcement, the applicant has already served the sentence that had been imposed upon him. Therefore, and although the applicant was legitimately deprived of his liberty, having served the sentence in the terms previously set out, we are confronted a case of deprivation of liberty beyond those cases envisaged in the law, because the law that legitimized it is now repealed. Therefore, the excess time spent in prison constitutes a privation of liberty lacking any legal basis and in breach of the fundamental right to freedom enshrined in art. 17.1 SC (STC 322/2005, of 12 December, Pts. of Law 2 and 3; and ECtHR of 10 July 2003, Grava v. Italy §§ 44–45). Under the Rule of Law, the deprivation of liberty of a person who has already served the conviction imposed upon him in its day cannot be prolonged, hence the ordinary courts have to adopt, as swiftly as possible, the relevant decisions, so that the violation of the fundamental right to liberty is ended and steps are immediately taken to release the applicant”.

I must add that Del Río Prada was definitively released on 22 October, 2013, by Order of the Criminal Chamber of the Audiencia Nacional [Spanish High Court], delivered in application of the Judgement pronounced by the ECtHR the previous day, which meant she had effectively served a prison sentence of approximately 26 years. A term that might appear short to some—of course, it appeared so to certain associations of victims of terrorism and, what is criticizable from all sides, to some governmental bodies that forgot the fundamental role that the ECtHR plays in our legal system in accordance with the Treaties to which the Kingdom of Spain has subscribed and our own Constitution–, but from strictly penological points of view it greatly exceeds what is generally established as a limit so that the principle of resocialization—in its purest meaning of the reintegration of the ex-criminal so that he can develop a life in freedom in a more or less normal way—can be of some efficacy. In this sense, although the pain of the victims, who would have preferred them to stay in prison for as long as possible, appears understandable to me from all points of view, I consider some of the comments that appeared in the communications media, in which it was maintained that the terrorists had “got away with it”, quite unacceptable.

Vid. the above-mentioned Cantoni judgement and also the ECtHR Judgement of 25 November 1997, c. Grigoriades v. Greece, and ECtHR Judgement of 8 July 1999, c. Erdogdu and Ince v. Turkey.

Thus, it is expressly affirmed in the dissenting opinion of Judge Borrego that accompanies this Judgement, in the following terms: “[…] the majority find a violation of Article 7 but at the same time observe that “there is no element of retrospective imposition of a heavier penalty involved in the present case”. In other words, there is a breach of the principle “no punishment without law” and yet no heavier penalty was retrospectively imposed. What a superb contradiction!”. Moreover, in their understanding, the same distinction “between a penalty breaching the Convention and its implementation being in conformity with the Convention is quite magnificent”.