Quick answer
In Del Río Prada v. Spain (Grand Chamber, 21 October 2013, application no. 42750/09), the European Court of Human Rights held — by fifteen votes to two — that retroactively applying a new judicial doctrine that changed how remissions of sentence were calculated, thereby substantially delaying the applicant’s release, violated Article 7 (no punishment without law). It further held that her continued detention was unlawful under Article 5 § 1, and, exceptionally, ordered her release at the earliest possible date.
Background and facts
The applicant had been convicted of numerous serious terrorism offences and sentenced to terms totalling many years, subject to a statutory maximum period of actual imprisonment. Under the law and settled practice in force at the time of her conviction, remissions of sentence for work done in prison were deducted from that maximum term, which determined her expected release date. After her conviction, the Spanish Supreme Court adopted a new approach — the so-called “Parot doctrine” — under which remissions were applied differently, with the effect of significantly postponing her release.
The complaint
- Article 7 — that the retroactive change amounted to the imposition of a heavier penalty than the one applicable when she was convicted; and
- Article 5 § 1 — that her resulting continued detention was unlawful.
The Court’s reasoning
The Court reaffirmed that Article 7 embodies the principle that only the law can define a crime and prescribe a penalty, and that the criminal law must be foreseeable. While measures concerning the execution of a sentence are in principle distinct from the “penalty”, the Court will look behind appearances: where a measure taken during the execution of a sentence results in the redefinition or modification of the scope of the penalty actually to be served, it falls within the scope of Article 7.
At the time of her conviction, the applicant could not reasonably have foreseen that the method of applying remissions would change to her disadvantage; the prevailing law and practice pointed to a much earlier release. The retroactive application of the Parot doctrine therefore amounted to the retroactive imposition of a heavier penalty, in breach of Article 7. It followed that her detention after the date on which she should have been released was no longer “lawful”, in violation of Article 5 § 1. In view of the nature of the violation, the Court took the exceptional step of indicating that Spain must ensure her release at the earliest possible date.
The judgment
- by fifteen votes to two, a violation of Article 7;
- unanimously, that the applicant’s detention had been unlawful under Article 5 § 1; and
- an order that the applicant be released at the earliest possible date.
Legacy and subsequent case law
Del Río Prada is a leading authority on Article 7 and on the foreseeability of penalties. It clarified that the guarantee against retrospective punishment can extend to measures that, though presented as concerning the execution of a sentence, in reality alter its scope. It is also a notable example of the Court using Article 46 to indicate an individual measure — release — rather than leaving the choice of remedy entirely to the State.
What this means for applicants
- Article 7 requires penalties to be foreseeable, and protects against a heavier penalty being imposed retrospectively.
- Changes dressed up as “execution” of a sentence may still engage Article 7 if they enlarge the penalty actually served.
- Unlawful continued detention engages Article 5 and may, exceptionally, lead the Court to order release.
This page summarises a leading judgment and is not legal advice on any individual case.
Frequently Asked Questions
What did Del Río Prada v. Spain decide?
The Grand Chamber held that retroactively applying the “Parot doctrine”, which changed how sentence remissions were calculated and delayed the applicant’s release, violated Article 7, that her continued detention was unlawful under Article 5 § 1, and that she should be released.
Does Article 7 apply to how a sentence is served?
In principle Article 7 concerns the penalty rather than its execution, but where a measure redefines or enlarges the scope of the penalty actually to be served, it falls within Article 7.
Why did the Court order the applicant’s release?
Because the violation meant her continued detention had no lawful basis; in those exceptional circumstances the Court indicated that Spain had to secure her release at the earliest possible date.
Convention Articles engaged
Cases against this state
Related ECHR cases
- Kudła v. Poland
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- Guzzardi v. Italy
- Aksoy v. Turkey
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