On 27th March 2012, the 3rd section of the
European Court of Human Rights issued its decision on Application no. 30141/09, Antonio GUTIERREZ DORADO and Carmen DORADO
ORTIZ against Spain. See: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=905618&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
European Court rejected the application as inadmissible. By doing so it set an important precedent regarding
future prospects to tackle Spanish civil war atrocities.
Regarding the applicants allegations of violations
of article 2 the court ruled as follows:
The Court noted that it was aware of the difficulties for the applicants to bring their complaints before the domestic
courts even after the end of the Franco regime. The Court nevertheless reminded that applicants must make proof of a certain
amount of diligence and initiative and introduce their complaints without undue delay to the Court.
The applicants argued that since 2006 they were pursuing concrete
procedural steps before domestic courts and that since 2006 they had high hopes that an effective investigation will be carried
out since in 2008 the Audiencia Nacional’s Investigating Judge no. 5, Balthasar Garzon opened an investigation on the
disappearances which took place during and after the Civil War, including that of the applicants’ relative. The reputation
of Judge Garzon and his experience in these cases as well as the fact that he was able to prosecute Augusto Pinochet gave
great hopes to the applicants. In addition the applicants also had a pending petition before the Constitutional court which
was resolved against them on 14 April 2008.
The Court in this regard pointed out in the Varnava and Others judgment (§§ 165-166) that “as long
as there is some meaningful contact between families and authorities concerning complaints and requests for information, or
some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally
The Court however
ruled that it must have been apparent to the applicants that there was not any realistic hope of progress in either finding
the body or accounting for the fate of their missing relative and that therefore, the applicants did not display the diligence
required to comply with the requisites derived from the Convention and the case-law of the Court concerning disappearances
until 2008. This assessment by the Court implies that the applicants should have known that procedures before the Spanish
judiciary in the instant case could not be considered to be an effective remedy.
In addition, according to the Court the fact that in 2008 the Audiencia
Nacional’s Investigating Judge no. 5 opened an investigation does not bring those proceedings into the six-month time‑limit under Article 35 § 1. The Court reminded
that this investigation was suspended, following the Investigating Judge’s own decision on relinquishment of 18 November
2008 and the decision of 2 December 2008 of the plenary of the Audiencia Nacional, declaring its lack of jurisdiction
to investigate these crimes.
with regard to the proceedings before the audiencia national the Court seems to apply the 6 months rule from the date in which
the investigating Judge’s issued his decision on relinquishment of 18 November 2008 and not from the 2 December 2008
where the plenary of the Audiencia Nacional, declared its lack of jurisdiction to investigate these crimes. (the application
was submitted on the 1st of June 2009).
According to the Court’s case law the six-month period runs from the final decision in the process of
exhaustion of domestic remedies (Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, decision of 7 June 2001)
and only remedies which are normal and effective can be taken into account.
Thus by applying the 6 month rule the Court admitted that the
applicants had effective remedies at their disposal as of 2008 which seems to contradict the courts earlier position that
the applicants had “no any realistic hope of progress in either finding the body or accounting for the fate of their
missing relative and that therefore, the applicants did not display the diligence required to comply with the requisites derived
from the Convention and the case-law of the Court concerning disappearances until 2008.”
Nonetheless it has been said that the six month time-limit does
not apply as such to continuing situations (see, for example, Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89, Commission
decision of 12 February 1992, DR 71, p. 148, and Cone v. Romania, no. 35935/02, § 22, 24 June 2008); this is because,
if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation
ceases that the final period of six months will run to its end. The applicants submitted to the Court that
they considered their case as a continuing situation and the Court accepted this by assuming that the applicants’ case
is a disappearance case and that the alleged violation is of a continuing nature.
The Court decision in this regard seems to be at least confusing.
In addition, it is unclear from the decision
whether individuals have been granted the prerogative to assess by themselves whether the judiciary in a given country is
to be considered as an effective remedy and in doing so to prejudge the outcome of judicial decisions. In other words should
the applicants have renounced to address the Spanish courts in 2006? And as suggested by the Court directly address the ECHR?
Would the investigation carried out by judge Garzon been considered as effective then?