(Suspected) terrorists
THE LAW JOINDER OF THE APPLICATIONS 90. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them and examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE OF THE CONVENTION 91. The applicants complained that the decisions of the Constitutional Court declaring their amparo appeals inadmissible deprived them of their right of access to a court. They relied on Article 6 § 1 of the Convention, which reads as follows: “ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ” 92. The Government contested that argument. Admissibility 93. The Government objected that the available domestic remedies had not been exhausted. 94. The Court reiterates that under Article 35 § 1 of the Convention, an application can be lodged only after domestic remedies had been exhausted. In the present case the Government seems to be requesting a declaration of inadmissibility of the complaint on the same grounds as justified, in the Court ’ s view, the communication of the complaint in question, that is to say the reason for which the Constitutional Court declared the amparo appeal inadmissible. The Court considers therefore that that objection is closely linked to the merits of the complaint put forward by the applicants under Article 6 of the Convention, and decides to join it to the merits ( see, to that effect, Ferré Gisbert v. Spain, no. 39590/05, § 20, 13 October 2009 ). The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 1. The parties ’ submissions 95. The applicants complained that the Constitutional Court had dismissed their amparo appeals for failure to file an action for annulment with the Supreme Court, thus precluding their examination on the merits. They explained that the Supreme Court had itself explicitly stated in its notices accompanying the impugned judgments on points of law that the latter were open to an amparo appeal to the Constitutional Court within thirty days. The first and second applicants added that their actions for annulment had been declared inadmissible by the Supreme Court on the grounds that their complaints had already been examined in the judgments concluding their respective appeals on points of law. They therefore saw a blatant contradiction between the Supreme Court and the Constitutional Court, submitting that the interpretation effected by the latter of the admissibility criteria had been excessively formalistic and strict. 96. The Government contested that argument. They submitted that following the 2007 reform of the Organic Law on the Constitutional Court the scope of the action for annulment had been broadened in order to allow litigants to complain of any fundamental rights violation before the ordinary courts before lodging an amparo appeal with the Constitutional Court. That applied, in particular, to the instant case, in which the alleged fundamental rights violation had occurred on one single occasion before the Supreme Court, which was at the summit of the ordinary judicial system. In that connection, the Government relied on judgment no. 216/2013 of 19 December 2013 of the Constitutional Court ( see paragraph 86 above ). They pointed out that that court had declared the amparo inadmissible for failure to exercise the action for annulment before the ordinary courts. Furthermore, in the case of the applicant, his lawyer had not even lodged an action for annulment and, in the case of the other two applicants, their lawyers had requested the withdrawal of the actions which they had lodged with the Supreme Court. According to the Government, the applicants had deliberately triggered the declaration of the inadmissibility of their amparo appeals by the Constitutional Court without giving it an opportunity to consider their allegations of fundamental rights violations, which ran counter to the subsidiarity principle. 97. The first applicant replied that the Constitutional Court judgment cited by the Government supported the applicant party ’ s argument : that judgment clearly stated that where a court had had an opportunity to adjudicate on the fundamental rights subsequently relied upon before the Constitutional Court, it was no longer necessary to file an action for annulment before the latter court. He added that already in his reply to the appeal on points of law lodged by the public prosecutor ’ s office with the Supreme Court he had referred to the fundamental rights violations which the admission of the public prosecutor ’ s appeal would involve. 2. The Court ’ s assessment 98. The Court reiterated that the “right to a court”, of which the right of access is one aspect (see in particular Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18), is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard ( see García Manibardo v. Spain, no. 38695/97, § 36, ECHR 2000-II, and De la Fuente Ariza v. Spain, no. 3321/04, § 22, 8 November 2007). Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ( see Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018, and Arribas Antón v. Spain, no. 16563/11, § 41, 20 January 2015). The right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court ( see Kart v. Turkey [GC], no. 8917/05, § 79, ECHR 2009 ( extracts )). 99. The Court also reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation and, even less, courts with jurisdiction to deal with amparo appeals. However, where such courts do exist, the State must ensure that they provide litigants with access to the fundamental guarantees of Article 6 ( see Zubac, cited above, § 80, and Arribas Antón, cited above, § 42). Furthermore, the compatibility of limitations laid in domestic law with the right of access to a court as secured by Article 6 depends on the specific features of the proceedings in issue. The Court has several times found that the imposition by the national courts of compliance with formalities in order to lodge an appeal is liable to breach the right of access to a court. This is the case when an excessively formalistic interpretation of a legal provision prevents de facto the consideration of the merits of a remedy exercised by a litigant ( see, for example, Zvolský and Zvolská v. the Czech Republic, no. 46129/99, §§ 48 ‑ 55, ECHR 2002 ‑ IX; De la Fuente Ariza, cited above, §§ 24-28; and Ferré Gisbert, cited above, §§ 28-33). Regard should be had to the domestic proceedings as a whole and to the role played in them by the Constitutional Court, although the conditions for the admissibility of an amparo appeal may be stricter than in the case of an ordinary appeal ( see Arribas Antón, cited above, § 42). 100. Finally, the Court reiterates the fundamental principle that it is for the national authorities, particularly the courts, to interpret and apply domestic law ( see Brualla Gómez de la Torre v. Spain, 19 December 1997, Reports of Judgments and Decisions 1997-VIII, § 31). The Court will not therefore question the judgment of the national courts as regards alleged errors of law, unless their findings can be regarded as arbitrary or manifestly unreasonable ( see, to that effect, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015). 101. In the present case, the Court observes that the Constitutional Court ’ s decision of 24 May 2016 ( concerning the first applicant) and those of 22 June 2016 ( concerning the second and applicants) declared inadmissible the amparo appeals lodged by the applicants against the Supreme Court ’ s judgments rejecting the possibility of grouping together sentences served in France with sentences imposed in Spain. Those decisions were based on the grounds of inadmissibility set out in section 44 ( 1 ) ( a) of the Organic Law on the Constitutional Court, that is to say non- exhaustion of ordinary legal remedies : in the present case the Supreme Court criticised the applicants for failing to lodge an action for annulment under section 241 ( 1 ) LOPJ. 102. The Court notes that the first two applicants did in fact lodge actions for annulment with the Supreme Court, requesting urgent procedure so that they could lodge an amparo appeal with the Constitutional Court within the thirty-day legal time-limit from the date of notification of the cassation judgments. It is true that those two applicants subsequently withdrew their actions for annulment before applying to the Constitutional Court, but the Supreme Court nonetheless served them with a decision declaring the actions inadmissible as irrelevant. That decision was served after the expiry of the thirty-day legal time-limit for lodging the amparo appeal and after the applicants in question had lodged that appeal with the Constitutional Court ( see paragraphs 31 and 50 above ). It should be noted that the notices accompanying the cassation judgments on 10 April 2015 explained that the latter were final but that an amparo appeal lay with them before the Constitutional Court within a thirty-day time-limit. There is nothing to suggest that that time-limit had been suspended by the lodging of the actions for annulment. If the two applicants had awaited notification of the decisions concerning their actions for annulment before preparing and validly lodging their amparo appeal, there would have been nothing to prevent the Constitutional Court from subsequently declaring their appeals inadmissible as being out of time, on grounds of the irrelevance of the actions for annulment ( see, for example, Del Pino García and Ortín Méndez v. Spain ( dec. ), no. 23651/07, § 32, 14 June 2011). 103. Furthermore, the Court notes that the Constitutional Court decisions concerning the first and second applicants are inconsistent with the decisions of the Supreme Court declaring inadmissible as irrelevant the actions for annulment lodged by those applicants. Indeed, the Supreme Court held that most of the complaints put forward by the two applicants had already been examined in the impugned cassation judgments, and that pursuant to section 241 ( 1 ) LOPJ the actions for annulment had therefore to be declared inadmissible. The Court observes that those remedies had already been the subject of a thorough assessment in the framework of the cassation proceedings ( see paragraphs 23-24 above ). Moreover, this was the position defended by the two applicants in their amparo appeals with regard to the legal requirement of exhaustion of available remedies ( see paragraphs 30 and 49 above ). 104. Clearly, it is not the Court ’ s task to determine the question whether an action for annulment was an appropriate remedy under domestic law in these circumstances. However, the Court considers that the reasoning of the impugned decisions of the Constitutional Court is inconsistent with that of the previous decisions given by the Supreme Court on the irrelevance of the actions for annulment. 105. The Court notes that the third applicant, unlike the first and second applicants, did not file an action for annulment with the Supreme Court before lodging an amparo appeal with the Constitutional Court. It should nevertheless be noted that, since he was represented by the same solicitor as the first and second applicants, he could have been apprised of the declaration of inadmissibility of the actions for annulment lodged by the other applicants before the expiry of the thirty-day time-limit for lodging an amparo appeal. In those circumstances, that applicant and his representative could reasonably have foreseen that if he were to file an action for annulment with the Supreme it would also fail. The third applicant cannot therefore be accused of having directly lodged an amparo appeal with the Constitutional Court, especially since in his appeal he, like the other applicants, pointed out that the Supreme Court, which had originated the impugned cassation judgment, had already adjudicated on all the allegations of fundamental rights violations which he was submitting to the Constitutional Court, and that he had therefore exhausted all the available legal remedies ( see paragraph 67 above ). 106. The Court attaches particular importance to whether the procedure to be followed for an action for annulment as a remedy to be used before applying to the Constitutional Court could be regarded as foreseeable from the litigants ’ point of view (see, as regards the requirement of foreseeability of a restriction on access to a higher court, Zubac, cited above, §§ 87-89). It notes in that regard that the Government relies on a Constitutional Court judgment of 2013 establishing the criteria for determining when the exercise of an action for annulment was required before an application to that higher court ( see paragraph 86 above ). The Court notes, however, that that judgment stated that the use of such an action was not required where the court having originated the impugned judicial decision given at first instance had already adjudicated on the allegations of fundamental rights violations which were subsequently to be put forward in the framework of the amparo appeal. That was precisely the situation in the present case, as noted by the Supreme Court in its decisions declaring the first and second applicants ’ actions for annulment inadmissible. Accordingly, the Constitutional Court ’ s subsequent decisions were not foreseeable or consistent with the case-law relied upon by the Government. 107. In the light of all those facts, the Court considers that a disproportionate burden was imposed on the applicants, thus upsetting the requisite fair balance between, on the one hand, the legitimate aim of ensuring compliance with the formal conditions for applying to the Constitutional Court, and on the other, the right of access to that court. In the present case, the fact that the amparo appeals had been declared inadmissible on grounds of non- exhaustion of available domestic remedies, even though the Supreme Court had previously declared the first and second applicants ’ actions for annulment inadmissible as irrelevant and had served the litigants with its decisions outside the thirty-day time-limit for lodging an amparo appeal, must at the very least be considered as creating legal uncertainty to the applicants ’ detriment ( see, mutatis mutandis, Ferré Gisbert, cited above, § 33). 108. The Court consequently holds that the inadmissibility decisions regarding the amparo appeals for non- exhaustion of available domestic remedies deprived the applicants of their right of access to a court. 109. The Court therefore rejects the Government ’ s objection and finds a violation of Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 110. The applicants complained of what they saw as the retroactive application of new Supreme Court case-law and of a new law which had come into force after their conviction, arguing that this had prolonged the actual length of their prison terms. They relied on Article 7 of the Convention, the relevant parts of which provide : “ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ... ”. 111. The Government contested that argument. A. Admissibility 112. The Government pleaded a failure to exhaust domestic remedies. They submitted that the available remedies had not been properly exhausted because the applicants ’ amparo appeals had been declared inadmissible by the Constitutional Court on grounds of non- exhaustion of available remedies. The applicants therefore stood accused of failure to comply with the requisite legal formalities and conditions for the admissibility of a domestic remedy. 113. The Government considered that the issue arising in the present case related exclusively to the enforcement of the lawfully imposed sentences, which issue was not covered by Article 7 of the Convention. They stated that the sentences imposed on the applicants had totalled over three thousand years ’ imprisonment (for the first applicant), forty ‑ six years ’ imprisonment (for the second applicant) and over four thousand seven hundred years ’ imprisonment (for the third applicant), respectively. The implementation of the maximum thirty-year prison term was aimed at restricting or setting an upper limit on the actual period of imprisonment under sentences already imposed. Furthermore, implementing the maximum prison term presupposed the remission of a large number of sentences imposed for connected offences. The Government relied in that regard on the judgment in the case of Kafkaris v. Cyprus ([GC], no. 21906/04, § 142, 12 February 2008) as regards the distinction between a measure constituting a “ sentence ” and a measure relating to the “ execution ” or “ enforcement ” of a “ sentence ”. They therefore invited the Court to declare that complaint inadmissible as incompatible ratione materiae. 114. The applicants replied that they had exhausted all the existing domestic remedies in conformity with the subsidiarity principle. 115. They submitted that the issued raised by their case went beyond mere sentence enforcement. They took the view that refusing to group together the sentences served in France for the purposes of implementing the maximum prison term in Spain had led to a redefinition of the scope of the “ sentences ” imposed, bringing it within the ambit of Article 7 of the Convention. 116. The Court notes that the first objection is closely linked to the substance of the applicants ’ complaint under Article 6 § 1 of the Convention. In the light of the considerations which led it to find a violation of that provision ( see paragraphs 101-109 above ), the Court considers that the applicants gave the domestic courts an opportunity to provide redress for the alleged violation, and concludes that it must reject the Government ’ s objection as to failure to exhaust domestic remedies. 117. As regards the second objection as to inadmissibility, the Court considers that it is closely linked to the substance of the applicants ’ complaint under Article 7 and decides to join it to the merits ( see, mutatis mutandis, Gurguchiani v. Spain, no. 16012/06, § 25, 15 December 2009). Further noting that that complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. B. The merits 1. The parties ’ submissions 118. The applicants submitted that the application in their cases of the case-law reversal effected under judgment no. 874/2014 of the Supreme Court and under Organic Law no. 7/2014, which had come into force after their conviction and their requests to group together the sentences served in France, had actually prolonged their prison sentences. The application of that case-law reversal, which had been detrimental to their interests, had been unforeseeable and retroactive. The applicants explained that when they had submitted their requests to group together the sentences served in France they had been unable, in the light of domestic law as a whole, to foresee the legislative changes that would stem from Organic Law no. 7/2014 and the Supreme Court ’ s case-law reversal. They added that the justification for this reversal had been the spirit of Organic Law no. 7/2014, which the Supreme Court had de facto applied retroactively. 119. The Government considered that the applicants or their lawyers could not have expected – before the adoption of Framework Decision no. 2008/675/JAI – that there was any possibility of the sentences imposed in France being grouped together with the sentences to be served in Spain for the purposes of determining the maximum prison terms to be served. Nor could they have foreseen such a possibility before the date scheduled for the transposition into national law of the Framework Decision (15 August 2010), or between that date and the date of publication of the draft transposition legislation (21 March 2014). Indeed, the Government pointed out that when the Supreme Court had delivered its isolated judgment no. 186/2014 ( on 13 March 2014), none of the three applicants had submitted any request under the Framework Decision for grouping together the sentences served in France. They added that once the draft transposition legislation had been tabled, the applicants and their lawyers had known that they would have to comply with its provisions. Furthermore, the Government stated that before the enactment and entry into force of Organic Law no. 7/2014 (on 3 December 2014), the only established Supreme Court case-law was that prohibiting the grouping together of sentences imposed in France. Furthermore, the decisions of the Audiencia Nacional in the three applicants ’ favour had been given one day before the entry into force of that law and had been immediately challenged before the Supreme Court, and the latter had quashed and annulled them in line with the approach adopted in its leading judgment no. 874/2014 of 27 January 2015, which was adopted by the plenary court. The Government explained that that Supreme Court judgment dispelled any doubts which might have arisen as regards the validity of its previous line of authority. 120. The Government drew a distinction between the present case and Del Río Prada. They took the view that in the instant case the pre-existing legislation and the Supreme Court case-law had been clear: unless there was an international treaty which was in force and had been transposed into domestic law, sentences imposed abroad were not taken into account for the purposes of the determination of the maximum prison term. They held that it was impossible to claim that judgment no. 186/2014 could have created “ certainty ” in the applicants ’ or their lawyers ’ minds as regards the change in the applicable legislation, because it was a case of one isolated judgment of the Supreme Court which had not set a precedent and had given rise to contradictory decisions in the different sections of the Audiencia Nacional based on an EU Framework Decision currently in the process of transposition. The judgment had been delivered during the procedure for enacting the transposition bill at parliamentary level, and had in fact been disavowed only nine months later by the plenary Criminal Division of the Supreme Court. The Government pointed out that the applicants had never secured a final court decision in their favour regarding the incorporation of the sentences imposed in France. Furthermore, the fact that the first and second applicants had been released pending the outcome of the appeals on points of law had constituted an interim measure benefiting those two applicants. 2. The Court ’ s assessment 121. The Court refers to its Del Río Prada judgment, cited above, which sets out the general principles concerning Article 7 of the Convention (§§ 77-93). As regards, more specifically, the distinction between the concept of a “penalty” and that of measures relating to the “execution” of a penalty, it established in that judgment that it did not rule out the possibility that measures taken by the legislature, the administrative authorities or the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the “penalty” imposed by the trial court. When that happens, the Court considers that the measures concerned should fall within the scope of the prohibition of the retroactive application of penalties enshrined in Article 7 § 1 in fine of the Convention ( ibid. , § 89). 122. In the present case, the Court observes from the outset that by three decisions given on 7 March 2006 ( concerning the first applicant), 31 July 1997 ( concerning the second applicant) and 18 November 2013 ( concerning the third applicant), the trial courts fixed at thirty years the maximum prison terms to be served by the applicants under the custodial sentences imposed on them under section 70.2 of the 1973 Penal Code in force at the time of the commission of the offences. In the case of the first and third applicants, that measure was also the result of a decision to group together the various sentences imposed in the framework of separate sets of criminal proceedings, having regard to the chronological connection between the offences committed, on the basis of section 988 of the Criminal Procedure Act. Under Spanish law, a sentence to be served resulting from that maximum prison term and from those decisions to group sentences together and / or set au upper limit on them was conceived of as a new independent sentence ( see, to that effect, Del Río Prada, cited above, §§ 97-99). Furthermore, it was from that latter sentence that such prison benefits as remissions of sentence ( see paragraphs 14, 41 and 59 above; see also Del Río Prada, cited above, § 99) and periods spent in pre-trial detention were to be deducted. 123. In the light of the foregoing considerations, the Court cannot accept the Government ’ s argument that the application of the maximum prison term laid down in the Penal Code was a measure that placed an upper limit on the total term of imprisonment, relating exclusively to the “execution” of individual sentences already imposed. On the contrary, it was a measure which concerned the extent of the sentences imposed on the applicants ( see also, as regards combining multiple sentences into an overall sentence, Koprivnikar v. Slovenia, §§ 50-52, 24 January 2017). Therefore, the impugned decisions of the Supreme Court refusing to allow the applicants ’ requests to take account of the sentences already served in France for the purposes of the determination of the maximum prison term in Spain also concerned the scope of the sentences imposed, and thus fell within the ambit of the last sentence of Article 7 § 1 of the Convention. The Government ’ s objection as to incompatibility ratione materiae should therefore be rejected. 124. The Court must now seek to establish whether the impugned decisions of the Supreme Court altered the extent of the sentences imposed on the applicants. In doing so, it must have regard to the domestic law as a whole and to how it was applied at the material time ( see, mutatis mutandis, Del Río Prada, cited above, §§ 90, 96 and 109). However, the Court points out that it is not competent to decide what is the proper interpretation of domestic law in the sphere of consideration of sentences served in another EU member State or to rule formally on the question whether the Supreme Court correctly applied Framework Decision no. 2008/675/JAI or any other provision of EU law ( see, mutatis mutandis, Avotiņš v. Latvia [GC], no. 17502/07, § 100, ECHR 2016). 125. In the present case the Court noted, firstly, that the impugned decisions of the Supreme Court did not alter the maximum prison term, which has always been thirty years ’ imprisonment. The subject matter of the dispute before the Spanish courts was whether, in order to implement that maximum term, account should be taken of sentences already served by the applicants in France under the convictions handed down in France for criminal offences committed in that State. The decisions given by the Audiencia Nacional in favour of taking account of those sentences never became res judicata, because the public prosecutor ’ s office appealed against them on points of law to the Supreme Court, the highest court in the Spanish judicial system, with jurisdiction to determine divergences among the lower courts in the application of the law. The fact that the first and second applicants were released on licence pursuant to the Audiencia Nacional ’ s decisions in favour of considering the French sentences, pending the outcome of the appeals on points of law, did not alter the non - final nature of those decisions. 126. The Court also observes that when the applicants had committed the criminal offences and when the decisions had been adopted to take account of and/or to place an upper limit on their sentences (on 7 March 2006, 31 July 1997 and 18 November 2013 respectively), the relevant Spanish law, taken as a whole – including precedent-based law – did not provide, to any reasonable extent, for taking account of sentences already served in another State for the purposes of determining the maximum prison term in Spain. Section 988 of the Criminal Procedure Act on the consideration of sentences imposed in the framework of separate criminal proceedings did not include any specific rule on taking account of sentences imposed abroad. The only precedents in favour of such consideration of sentences concerned sentences imposed abroad prior to being served in Spain under an international treaty on the transfer of convicted persons, but not sentences already completed abroad ( see paragraph 21 above ). In the only case similar to that of the applicants ( Supreme Court judgment no. 2117/2002, see paragraph 82 above ), the Supreme Court had refused to take into account a sentence already served in France. That lack of foreseeability might explain the fact that at the time the applicants had not requested the consideration of the sentences served in France, even though the latter had ended in 1995, 1996 and 2000 respectively. Even the third applicant, who had requested consideration of his sentence on 4 December 2012, when Framework Decision no. 2008/675/JAI was already in force, had not referred to the sentence served in France and / or the Framework Decision ( see paragraph 57 above ). It should be noted that under the Treaty on European Union itself, Framework Decisions could not induce any direct effect. 127. The Court attaches importance to the fact that the three applicants did not request consideration of their sentences served in France on the basis of Framework Decision no. 2008/675/JAI until after the adoption on 13 March 2014 of Supreme Court judgment no. 186/2014, that is, on 25 March 2014, 20 March 2014 and 30 April 2014 respectively. In that judgment the Supreme Court had been called upon for the first time to interpret Framework Decision no. 2008/675/JAI, and even though it had been in favour of the possibility of taking account of sentences served in another EU Member State for the purposes of grouping sentences together, it pointed out that this stance had been adopted because there was no national legislation transposing the Framework Decision or any explicit regulation on that matter ( see paragraph 83 above ). Pursuing that approach, some sections of the Criminal Division of the Audiencia Nacional have grouped sentences served in France together with sentences imposed in Spain for the purpose of determining the maximum thirty-year prison term. All these decisions, apart from three isolated cases, were set aside by the Supreme Court after the public prosecutor ’ s office had lodged appeals on points of law and after the adoption by the Plenary Criminal Division of the Supreme Court of its judgment no. 874/2014 of 27 January 2015 ( see paragraph 85 above ). The Court observes that under Spanish law, precedents are not a source of law and that only case-law repeatedly established by the Supreme Court can complement law ( see paragraph 89 above ). At all events, irrespective of whether isolated judgment no. 186/2014 of 13 March 2014 set an authoritative precedent under Spanish law ( see, mutatis mutandis, Del Río Prada, § 112), the Court considers that that judgment was not accompanied by a judicial or administrative practice consolidated over time which could have created legitimate expectations in the applicants as regards a stable interpretation if criminal law. The present case clearly differs in that respect from Del Río Prada, where the applicant could reasonably have thought, while she was serving her prison sentence and when the decision to combine the sentences and fix a maximum prison term was taken, that the remissions of sentence for work done in prison would be deducted from the maximum thirty -year prison term in accordance with the established practice that had been applied consistently by the Spanish prison and judicial authorities for many years ( ibid. , §§ 98-100, 103, 112-113). It was with regard to that previous practice concerning the interpretation of criminal law and the scope of the sentence imposed that the Court considered that the Supreme Court ’ s case-law reversal ( the “ Parot doctrine ” ) as applied to the applicant could not be deemed foreseeable, and that consequently there had been a violation of Article 7 ( ibid. , §§ 111-118). 128. The Court observes that in the instant case the divergences among the different courts concerned as to the possibility of grouping together sentences served in another Member State with sentences imposed in Spain only lasted for about ten months, up until the adoption by the Supreme Court of its leading judgment no. 874/2014. It accepts that achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated when the domestic legal system is capable of accommodating them ( see, mutatis mutandis, Borcea v. Romania ( dec. ), no. 55959/14, § 66, 22 September 2015). In the present case, the highest court in Spain in matters of criminal law, that is to say the Supreme Court ( its plenary Criminal Division ), settled the divergence in question by adjudicating on the issue of taking account of sentences served in another EU Member State. The Court notes that the solutions adopted in the applicants ’ cases merely followed the judgment of the plenary Supreme Court. 129. In the light of the foregoing considerations, and having regard to the relevant domestic law in force when the applicants committed the offences, when the decisions had been adopted to take account of and/or to place an upper limit on their sentences, and when the applicants requested consideration of the sentences served in France, the Court considers that the impugned decisions did not lead to any change in the scope of the sentences imposed. The sentences imposed were always maximum thirty-year prison terms resulting from the consideration of and / or the placing of an upper limit on the individual sentences imposed on the applicants by the Spanish criminal courts, without taking account of the sentences imposed and served in France. 130. It follows that the impugned Supreme Court decisions did not lead to any change in the extent of the sentences imposed on the applicants. Accordingly, the Court finds that there was no violation of Article 7 of the Convention. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 131. The applicants further complained of the fact that their detention had been extended by twelve years (in the case of the first applicant), seven years (in the case of the second applicant) and ten years (in the case of the third applicant), respectively, owing to the retroactive application of the law to their detriment. The first and third applicants alleged that they had been held in unlawful and arbitrary detention since 27 January 2013 and 5 August 2016 respectively. The applicants relied on Article 5 § 1 of the Convention, the relevant parts of which provide : “ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law : (a) the lawful detention of a person after conviction by a competent court; ... ” 132. The Government contested that argument. A. Admissibility 133. The Government raised the same preliminary objection as to non ‑ exhaustion of domestic remedies as under Article 7 (see paragraph 112 above). The applicants recorded their disagreement. 134. The Court can only refer to its previous conclusions under Article 6 § 1 of the Convention concerning the right of access to the Constitutional Court and the objection as to non- exhaustion of domestic remedies in relation to Article 7 ( see paragraphs 101-109 and 116 above ). The objection must accordingly be rejected. 135. Noting that that complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible. B. The merits 1. The parties ’ submissions 136. The applicants submitted that their continued detention after the date on which they would have completed their sentences if the Spanish courts had agreed to take into account the sentences which they had served in France could not have been “ lawful or “ in accordance with a procedure prescribed by law ”. They took the view that that continued detention was the result of the retroactive application of Organic Law no. 7/2014 and of the Supreme Court case-law applying that law, to their detriment. 137. The Government contested that argument. They submitted that the decisions of the Audiencia Nacional allowing the requests for consideration of the sentences served by the applicants in France for the purposes of determining the maximum prison term had been non- final decisions, specifying that they had all been quashed and set aside by the Supreme Court. They argued that the fact that the applicants had been released on licence during the cassation proceedings had merely been the result of applying domestic legislation, which, in their view, had been fully consistent with paragraphs 3 and 4 of Article 5 of the Convention. From the moment the Supreme Court had set aside the decisions of the Audiencia Nacional it had been necessary to recalculate the sentences to be served. In that connection, the recalculation had been effected on the basis of the final judgments of the Supreme Court deciding not to take account of the sentences served in France for the purposes of determining the maximum prison term in Spain. The Government also alleged that, inasmuch as the approach followed by the Supreme Court had fully complied with the provisions of Article 7 of the Convention, the actual prison term should be understood as being covered by the sentences imposed in Spain and that the applicable law had been clearly foreseeable. The Government considered that it was only if the Audiencia Nacional ’ s decisions on the consideration of sentences had become final that the prison terms in question would not have been covered by the sentences imposed. 2. The Court ’ s assessment 138. The Court refers to its judgment in Del Río Prada, cited above, which sets out the relevant principles concerning Article 5 § 1 of the Convention, and in particular indent ( a) thereof (§§ 123-127). 139. In the present case, the Court has no doubt that the applicants were in fact convicted, after proceedings prescribed by law, by courts which were competent within the meaning of Article 5 § 1 ( a) of the Convention. Moreover, the applicants do not deny that their detention was lawful up until the dates on which they ought to have completed their respective sentences in accordance with the decisions of 2 December 2014 of the Audiencia Nacional ( on 27 January 2013, 24 August 2013 and 5 August 2016 respectively ), taking into account the sentences which they had served in France for the purposes of determining the maximum thirty-year prison term. It remains to be seen whether the applicants ’ continued detention or reimprisonment after those dates was “ lawful ” within the meaning of Article 5 § 1 ( a) of the Convention. 140. In the light of the considerations which have led it to find no violation of Article 7 of the Convention ( see paragraphs 124-130 above ), the Court considers that when the applicants ’ sentences had been imposed, and even later, when they requested the taking into account of the sentences served in France, Spanish law had not provided, to any reasonable extent, that sentences already served in France should be taken into account for the purposes of determining the maximum thirty-year prison term. Given that the impugned decisions had not led to any change, in the light of Article 7, in the extent of the sentences imposed, the prison terms impugned by the applicants cannot be designated as unforeseeable or unauthorised by “ law” within the meaning of Article 5 § 1 ( see, to converse effect, Del Río Prada, cited above, §§ 130-131). 141. Moreover, the Court notes that there is a causal link for the purposes of Article 5 § 1 ( a) of the Convention between the sentences imposed on the applicants and their continued detention after the dates indicated by them, stemming from the guilty verdicts and the maximum thirty-year prison term established in decisions to group sentences imposed in Spain together and/or to set au upper limit on them ( see, mutatis mutandis, Del Río Prada, cited above, § 129). 142. Accordingly, the Court considers that in the present case there has been no violation of Article 5 § 1 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 143. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 144. The applicants claimed compensation for the non-pecuniary damage which they had sustained solely in connection with the alleged violation of Article 7 and Article 5 § 1. Their pecuniary claims did not concern the complaints under Article 6 § 1 of the Convention. The applicants also requested their release from prison at the earliest possible date. 145. Having regard to the fact that it has found a violation of Article 6 § 1 but no violation of Article 7 and Article 5 § 1 of the Convention, the Court holds that there is no need to make any award in respect of non-pecuniary damage or to indicate individual measures to the respondent State as requested by the applicants ( see, to converse effect, Del Río Prada, cited above, §§ 137-139). B. Costs and expenses 146. The first applicant claimed 2, 662 euros (EUR) in respect of costs and expenses incurred before the domestic courts and EUR 3, 138. 71 in respect of those incurred before the Court. He requested that the sums relating to unpaid invoices be paid directly to his representative. The second and third applicants claimed EUR 2, 662 each in respect of costs and expenses incurred before the domestic courts and EUR 1,815 each in respect of those incurred before the Court. They requested that the awards under this head be paid directly into their representative ’ s bank account 147. The Government submitted that under the Court ’ s case-law, claims in respect of costs appertaining to domestic proceedings should be rejected. As regards the award in respect of the costs incurred before the Court, they left that matter to the latter ’ s discretion. 148. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court considers that in the present case the applicants are not entitled to the reimbursement of all the costs and expenses incurred for their defence before the Spanish courts, and that they are only entitled to the reimbursement of the costs required to complain of the alleged violation found by the Court. In the instant case the Court found a violation of Article 6 § 1 of the Convention on account of the inadmissibility decisions given on the amparo appeals by the highest national court, that is to say the Constitutional Court, with whose decisions no further effective remedies lie ( see, for example, Ferré Gisbert, cited above, §§ 38 ‑ 39 and 49). The Court therefore considers that the costs appertaining to the domestic proceedings cannot be deemed to have been incurred with a view to preventing or denouncing the violation which it has found, and therefore rejects the corresponding claims. 149. As regards the costs and expenses incurred before the Court, having regard to the documents at its disposal and to the fact that it has only found one violation of the Convention, the Court considers it reasonable to award the first applicant the sum of EUR 2,000 and the second and third applicants EUR 1,000 each. Those sums are to be paid directly into the bank accounts of the applicants ’ representatives ( see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, ECHR 2016). C. Default interest 150. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court observed in particular that the decisions of the Spanish Supreme Court had not changed the maximum length of the total term of imprisonment, which had always been set at thirty years. The discrepancies between the various courts concerned as to the possibility of combining sentences had lasted for only about ten months, until the adoption by the Supreme Court of its leading judgment, which had settled the matter in the negative. The solutions adopted in the applicants’ cases had merely followed the judgment of the plenary formation of the Supreme Court. There had thus been no violation of Article 7 (no punishment without law) of the Convention.