In 1949, after the tragedy and horrors of the Second World War, the Council of Europe (CoE) was created with the aim of promoting the common principles and ideas of democratic states.
To this end, the CoE was endowed with a political structure consisting of a Committee of Ministers and a Parliamentary Assembly, and it also drafted the European Convention on Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950.
The ECHR not only remains one of the most important legal instruments on the international scene, but also represents a unique treaty, as it institutes a judicial body – the European Court of Human Rights (ECtHR) – whose final judgments are binding on the member states. In this regard, while the ECHR fulfils the critical role of establishing a minimum standard in human rights, the ECtHR, through its interpretation, imposes this standard on the member states of the Council of Europe, thereby contributing to the development of a European common law, with fundamental rights at its core.
Forty-five years ago, in October 1979, after more than 40 years of dictatorship and the oppression of civil liberties, and as part of its transition to democracy, Spain ratified the ECHR, committing itself to its respect and implementation.
Thus, the ECHR became part of Spain’s domestic legal framework, as stipulated in Article 96.1 of the Spanish Constitution (CE), and it serves as an interpretative criterion for fundamental rights, in accordance with Article 10.2 of the CE.
On 6 December 1988, the ECtHR issued its first ruling against Spain in the so-called Bultó case, which originated from a complaint submitted to the European Commission of Human Rights by Messrs. Barbera, Messegué, and Jabardo regarding their prosecution in 1982 by the National Court (AN) on charges of terrorism. In this ruling, a violation of the right to a fair trial, attributable to Spain, was declared under paragraph 1 of Article 6 of the ECHR.
On 10 October, the ECtHR ruled that Spain had failed to fulfil its duty to properly investigate allegations of human trafficking presented by a Nigerian citizen, finding a violation of Article 4 of the ECHR, which prohibits slavery and forced labour.
The violations attributed to Spain by the ECtHR over the years mainly concern Article 10 ECHR (freedom of expression), Article 6 ECHR (right to a fair trial), Article 8 ECHR (right to respect for private and family life), and Article 3 ECHR (prohibition of torture).
According to the European Commission, in the chapter on the rule of law in Spain, from the 2024 Rule of Law Report, as of 1 July 2024, 22 principal judgments of the European Court of Human Rights were pending implementation in Spain, marking an increase of two compared to the previous year.
According to the latest “The state of the rule of law in the European Union” report prepared by the European Network of National Human Rights Institutions (ENNHRI), the level of judgment execution in Spain is reasonably high and maintains the average rate of the Council of Europe (75%).
As is well known, the judgments of the European Court are declaratory, mandatory, and binding. However, their effectiveness depends on the recognition and implementation by states of the Court’s decisions, under the supervision of the Council of Europe’s Committee of Ministers.
While the state has the obligation to comply with final judgments of the ECtHR and to implement the necessary measures to cease the violation of the right and to remedy the damage caused by such violation, Spain decides how to do so unless the ECtHR has ordered specific measures or actions.
In this regard, it is worth mentioning that Spain lacked a mechanism for the execution of ECtHR judgments: their implementation was carried out by the Supreme Court (TS) and the Constitutional Court (TC) through different rulings and procedures.
This legal and procedural gap led to discrepancies in the application of those rulings where the violation remained in force until 2013, when a ruling by the ECtHR (Del Río Prada v. Spain) prompted the Law 41/2015 of 5 October, amending the Criminal Procedure Act. This law aimed to expedite criminal justice and strengthen procedural guarantees by amending Article 954 of the Criminal Procedure Act and establishing a procedural channel for the execution of ECtHR judgments with the introduction, in paragraph 3, of a new ground for a review appeal before the Supreme Court, as had already been suggested by the Constitutional Court (TC), among others, in STC 245/1991 of 16 December.
In these cases, the report of the European Network of National Human Rights Institutions highlights the important role of the Ombudsman in examining whether adequate and sufficient administrative measures have been taken to stop the harm and whether reparation has been made or if steps have been taken to ensure that this occurs.
It should also be noted that when the harm stems from a judicial ruling, the Ombudsman’s supervisory role is very limited, as these are judicial matters in which it cannot intervene (principle of judicial independence, Article 117 CE). It can only rely on the intervention of the Public Prosecutor’s Office (which is a party to the proceedings), informing it of the analysis it has carried out or the measures the Ombudsman advises to ensure the protection of citizens’ rights by the state.
It is worth highlighting that the legislative reforms, which came into force on 20 March 2024, through Royal Decree-Law 6/2023 of 19 December, on urgent measures concerning the public justice service, public function, local government, and patronage, established the possibility for the State Attorney General’s Office to be informed of and collaborate with the judicial authorities in the review procedures of judgments before the Supreme Court (TS) resulting from ECtHR rulings declaring that a judicial decision was rendered in violation of any of the rights recognised in the ECHR. The aim is for the State Attorney General’s Office, in its capacity as Agent of the Kingdom of Spain before the ECtHR, to inform the Committee of Ministers of the Council of Europe of the measures taken to implement the Court’s rulings, and to assist the judicial authorities in considering what is required for the execution of such rulings.
The State Attorney General’s Office may, on its own initiative or at the request of the Supreme Court (TS), provide information or submit written observations on matters concerning the execution of ECtHR rulings. In this context, it has a status like an «amicus curiae», providing an additional perspective to the Supreme Court, thus facilitating its evaluation of the impact of ECtHR judgments on final national judicial decisions. The participation of the State Attorney General’s Office in these proceedings also ensures the prompt and complete communication to the Committee of Ministers of information on relevant measures for the execution of a case.
Finally, the creation of the Human Rights and Democratic Memory Prosecutor’s Office is a new prosecutorial function established within the Attorney General’s Office. Among other things, the Prosecutor’s Office promotes investigations into human rights violations and cooperates with the Attorney General’s Office in executing judgments from the ECtHR that involve criminal law issues. For instance, it assesses the possibility of reopening criminal investigations in cases where procedural violations of Articles 2 or 3 of the Convention have occurred.
Alessia Schiavon, Director of FIBGAR
