THIRD SECTION
\nCASE OF OTEGI MONDRAGON AND OTHERS v. SPAIN
\n(Applications nos. 4184\/15 and 4 other applications – see appended list)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n6 November 2018<\/p>\n
FINAL
\n06\/02\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Otegi Mondragon and Others v. Spain,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Vincent A. De Gaetano, President, Having deliberated in private on 16 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in applications nos.\u00a04184\/15, 4317\/15, 4323\/15, 5028\/15 and 5053\/15 against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by five Spanish nationals, Mr\u00a0ArnaldoOtegiMondrag\u00f3n, Mrs Jacinto Garc\u00eda, Mr D\u00edezUsabiaga, Mrs\u00a0ZabaletaTeller\u00eda and Mr Rodr\u00edguez Torres (\u201cthe applicants\u201d), on 14\u00a0January 2015.<\/p>\n 2.\u00a0\u00a0The first, second, fourth and fifth applicants were represented by Mrs\u00a0\u00a0J. GoirizelaiaOrdorika and Mr O. Peter, lawyers practising in Bilbao (Spain) and Gen\u00e8ve (Switzerland), respectively. The third applicant was represented by Mr. IruinSanz, lawyer practicing in Donostia. The Spanish Government (\u201cthe Government\u201d) were represented by their Agent, Mr\u00a0R.A.\u00a0Le\u00f3n Cavero, State Attorney.<\/p>\n 3.\u00a0\u00a0On 3 November 2015 the complaint concerning the right to a fair hearing before an impartial tribunal as guaranteed by Article 6 \u00a7 1 of the Convention was communicated to the Government and the remainder of the applications nos. 4184\/15, 4317\/15, 4323\/15, 5028\/15 and 5053\/15 were declared inadmissible pursuant to Rule\u00a054 \u00a7 1 of the Rules of Court. On the same date the Court decided to join the applications.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicants were born in 1958, 1977, 1956, 1981 and 1979, respectively (see appendix).<\/p>\n A.\u00a0\u00a0Previous proceedings before the Audiencia Nacional concerning the first applicant<\/strong><\/p>\n 5.\u00a0\u00a0On 2 March 2010 the first applicant was sentenced to two years\u2019 imprisonment by a panel of the Fourth Section of the Audiencia Nacional for encouragement of terrorism (enaltecimientodelterrorismo). He was also acquitted of the charges of unlawful assembly and association (reuni\u00f3nil\u00edcita y asociaci\u00f3nil\u00edtica).<\/p>\n 6.\u00a0\u00a0The first applicant brought a cassation appeal before the Supreme Court, challenging, inter alia, the impartiality of the President of the Fourth Section of the Audiencia Nacional and judge rapporteur of that judgment (hereinafter \u201cthe presiding judge\u201d), as she had displayed hostility towards him during those criminal proceedings.<\/p>\n 7.\u00a0\u00a0In particular, the first applicant argued that during the oral hearing, and once the applicant had finished his statement, the presiding judge had asked him whether he condemned ETA\u2019s (Euskadi Ta Askatasuna, the former armed Basque nationalist and separatist organisation) violence. The first applicant had refused to give an answer. The presiding judge had then replied that she \u201calready knew that he was not going to give an answer to that question\u201d.<\/p>\n 8.\u00a0\u00a0On 2 February 2011 the Supreme Court ruled in favour of the first applicant, finding that the presiding judge\u2019s declarations during the trial had cast doubts on the absence of prejudice or bias. The Supreme Court stressed the following:<\/p>\n \u201cThe significance of the Judge\u2019s action…cannot be reduced to an isolated assessment of the question raised by her, yet it must be put in direct connection with the comment that she made after the appellant refused to give an answer, as well as the nature of the charges, their legal characterization and the moment the question and the answer take place…<\/p>\n The question put by the presiding judge and, very particularly, her reaction to the appellant\u2019s refusal to give an answer, can be interpreted, from an objective perspective, as an expression of a previously formed opinion…about the significance assigned to the words spoken by the appellant…The appellant had objectives reasons to think that the judge was precipitately voicing out a value judgment on the criminal nature of [his statements]\u201d<\/p>\n 9.\u00a0\u00a0The Supreme Court, assessing the proceedings as a whole, found that there were \u201cobjective reasons\u201d to consider that the presiding judge (and judge rapporteur of the case) was expressing a prejudice against the first applicant about the significance that should be given to the phrases and words expressed by him, which had also led to a preconceived idea as to his guilt. This had taken place before the oral phase had terminated, i.e, before the presiding judge (as well as the whole panel) had had an opportunity to assess all the pieces of evidence brought before her and prior to the applicant\u2019s right to have a last word. Thus, the applicant\u2019s doubts as to the impartiality of this judge were \u201cobjectively justified\u201d. Consequently, the Supreme Court declared that the judgment was void and ordered a re-trial by a new panel formed by three other judges different from the ones that were part of the composition of that panel.<\/p>\n 10.\u00a0\u00a0As a result, a new and different composition of the Fourth Section of the Audiencia Nacional tried the applicant on the charge of encouragement of terrorism. On 22 July 2011 the Audiencia Nacional acquitted the applicant.<\/p>\n B.\u00a0\u00a0Proceedings before the Audiencia Nacional concerning all the applicants<\/strong><\/p>\n 11.\u00a0\u00a0In 2009, criminal proceedings were brought against all the applicants before the Audiencia Nacional, on the grounds that a political party that the applicants intended to create was in fact under the control of the terrorist organisation ETA. The applicants were accused of being members of this terrorist organisation. The facts have been referred to as the \u201cBateragune Case\u201d. These proceedings were allocated to the Fourth Section of the Audiencia Nacional, whose composition consisted of the same judges that had taken part in the first set of criminal proceedings followed against the first applicant, which ended with the judgment of 2 March 2010, finally declared void by the Supreme Court on 2 February 2011. This time the presiding judge was not the judge rapporteur.<\/p>\n 12.\u00a0\u00a0The first applicant initiated proceedings to challenge the whole panel, arguing that the Section\u2019s composition did not offer sufficient guarantees to exclude any legitimate doubt in respect of its impartiality, for the presiding judge had already showed signs of partiality and bias in previous criminal proceedings against him. According to the first applicant, the bias previously shown by the presiding judge created an objective situation which contaminated the impartiality of the judges. This also created a subjective situation of mistrust on the Section\u2019s composition.<\/p>\n 13.\u00a0\u00a0On 26 April 2011 a special chamber of the Audiencia Nacional (a chamber that, according to Article 69 of the Judicature Act is ex professo formed to deal with challenge proceedings) ruled against the first applicant. According to the Audiencia Nacional, these new proceedings had a different object, i.e. his belonging to a terrorist organisation and the existence of strong and permanent links with ETA, which had nothing to do with his previous charge of encouragement of terrorism. Neither the question previously put by the presiding judge (see paragraph 7 above) nor her subsequent reaction showed any sign of prejudice against the first applicant.<\/p>\n 14.\u00a0\u00a0On 16 September 2011 the Audiencia Nacional delivered its judgment and sentenced the first and third applicants to ten years\u2019 imprisonment for being a member and leader of a terrorist organisation. The second, fourth and fifth applicants were sentenced to eight years\u2019 imprisonment for belonging to a terrorist organisation. All applicants were further disqualified from taking part in electionsfor the same length of time as their respective prison sentences.<\/p>\n 15.\u00a0\u00a0All the applicants brought a cassation appeal before the Supreme Court. The first and fifth applicants contested in particular the impartiality of the panel of the Fourth Section of the Audiencia Nacional reiterating the same arguments that were brought during the challenging proceedings before the Audiencia Nacional.<\/p>\n 16.\u00a0\u00a0On 7 May 2012 the Supreme Court, in a 3 to 2 decision, partially upheld the applicants\u2019 appeals and reduced their sentence to six years and six months\u2019 imprisonment in respect of the first and third applicants and six years in respect of the second, fourth and fifth applicants. The disqualification from taking part in elections was confirmed. However, the Supreme Court rejected the applicants\u2019 arguments concerning the alleged violation of the their right to an impartial tribunal by declaring that the bias displayed by the presiding judge against one of the applicants during previous and different proceedings did not reach the necessary threshold to believe that the judges (and, specifically, the presiding judge) had become again biased or prejudiced, not only against the first applicant but against all of them. According to the Supreme Court, there was no evidence apart from what happened in previous proceedings that supported the alleged partiality of the judges. The Supreme Court stressed the following:<\/p>\n \u201cTo presume that every judge that has been declared biased in previous proceedings must be forcefully contaminated in any other further proceedings…implies to issue a universal judgment on bias that lacks a minimum objectives proofs ad causam…The question of subjective partiality or impartiality and even in many cases of objective impartiality is a very delicate one since it directly affect the composition of the Tribunals subject to the rule of law. Consequently, the appearances can only be relevant if they have a connection with the legal causes to challenge a judge as established by the lawmaker…in the sense that it is not possible to established different causes according to an analogic criterion or treating the appearance as an autonomous cause with its own procedural life…Therefore, the complaint must be rejected\u201d<\/p>\n 17.\u00a0\u00a0Two of the Supreme Court\u2019s judges issued two separate dissenting opinions. According to the first dissenting opinion (which was endorsed, in substance, by the second dissenting judge), the applicants\u2019 right to an impartial tribunal had indeed been violated, because the preconceived idea showed by the presiding judge in previous criminal proceedings against the first applicant also affected her judgment during subsequent proceedings. This lack of impartiality also had affected the other two judges of the panel. Consequently, a new trial before a different panel of judges should have been ordered. According to the second dissenting opinion, however, there was not enough evidence to support the applicants\u2019 conviction. Consequently, the fact that the Fourth Section of the Audiencia Nacional lacked impartiality, although true, was irrelevant, for the applicants should have been acquitted by the Supreme Court.<\/p>\n C.\u00a0\u00a0Proceedings before the Constitutional Court<\/strong><\/p>\n 18.\u00a0\u00a0On 21 June 2012 the third applicant lodged a separate amparo appeal against the judgments of 16 September 2011 and of 7 May 2012, arguing, inter alia, that there was not sufficient evidence to substantiate the applicant\u2019s conviction. On 27 June 2012 the first, second, fourth and fifth applicants lodged an amparo appeal with the Constitutional Court against these judgments, arguing, inter alia, that the panel composition of the Fourth Section of the Audiencia Nacional fell short of the requirements of an impartial tribunal.<\/p>\n 19.\u00a0\u00a0On 22 July 2014 the Constitutional Court, in a 7 to 5 decision, ruled against the first, second, fourth and fifth applicants. The majority of the Constitutional Court found that the doubts as to the presiding judge\u2019s impartiality were neither subjectively nor objectively justified. The Constitutional Court observed that the doubts on the presiding judge were in connection with previous proceedings dealing with a different subject, i.e. the determination on whether the first applicant had committed the crime of encouragement of terrorism, which differed from the charges they were all accused of in the framework of the second set of criminal proceedings. The two proceedings did not present enough similarities as to cast doubts on the judges\u2019 impartiality.<\/p>\n 20.\u00a0\u00a0The five dissenting judges were of the opinion that the applicants\u2019 right to an impartial tribunal had been violated. In particular, they considered that the presiding judge\u2019s conduct in previous proceedings was a clear sign of a preconceived idea regarding the first applicant\u2019s guilt, which made her impartiality during the proceedings against all applicants questionable.<\/p>\n 21.\u00a0\u00a0On 22 September 2014 the Constitutional Court ruled against the third applicant in a 4 to 2 decision.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0The Constitution<\/strong><\/p>\n 22.\u00a0\u00a0Article 24 of the Spanish Constitution reads as follow:<\/p>\n \u201c1. Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended.<\/p>\n 2.\u00a0\u00a0Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent.<\/p>\n The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.\u201d<\/p>\n B.\u00a0\u00a0The Judicature Act<\/strong><\/p>\n Section 217<\/p>\n \u201cJudges and magistrates must withdraw and may, where appropriate, be challenged on the grounds prescribed by law.\u201d<\/p>\n Section 219<\/p>\n \u201cGrounds for withdrawal or, where appropriate, a challenge, include:<\/p>\n …<\/p>\n 9.\u00a0\u00a0Friendship or self-evident enmity between the judge and any of the parties.<\/p>\n 10.\u00a0\u00a0Have direct or indirect interest in the outcome of the proceeding.<\/p>\n …<\/p>\n 13.\u00a0\u00a0Having held public office or post where he or she previously participated directly or indirectly in anything related to the case<\/p>\n …\u201d<\/p>\n Section 221<\/p>\n \u201cA judge or magistrate who believes that he falls within the scope of one of the grounds set out in the preceding sections shall withdraw from the case without waiting to be challenged.<\/p>\n …\u201d<\/p>\n C.\u00a0\u00a0The Criminal Procedure Code<\/strong><\/p>\n Section 954\u00a0\u00a7\u00a03, as modified by Law 41\/2015, of 5 October 2015<\/p>\n ” A request for review of a final decision may be made whenthe European Court of Human Rights has declared that this decision is contrary to the rights recognised in the European Convention on Human Rights and Fundamental Freedoms as well as in its Protocols, provided that the violation, by its nature and seriousness, entails persistent effects which can not cease otherwise than through this revision.<\/p>\n In this case, the review can only be requested by the person who, having the legitimacy to bring such an appeal, was the applicant to the European Court of Human Rights. The request must be made within one year after the judgment of the Court has become final. ”<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 23.\u00a0\u00a0The applicants complain under Article 6 \u00a7 1 of the Convention that the Fourth Section of the Audiencia Nacional lacked impartiality, as this Section had previously been declared biased against the first applicant by the Supreme Court in the framework of previous criminal proceedings where the first applicant was finally acquitted of all charges. Article 6 \u00a7 1 which reads as follows in its relevant part:<\/p>\n \u201c1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (…)\u201d.<\/p>\n 24.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Lack of victim status of the second, third, fourth and fifth applicants<\/em><\/p>\n 25.\u00a0\u00a0The Government submitted that the second, third, fourth and fifth applicants could not claim to be \u201cvictims\u201d, for the purposes of Article 34 of the Convention, of the facts of which they complained. In support of their objections, the Government claimed that these applicants had not taken part in the previous criminal proceedings that had been declared void by the Supreme Court in view of the presiding judge\u2019s lack of impartiality.<\/p>\n 26.\u00a0\u00a0The applicants, for their part, submitted that the presiding judge\u2019s behaviour in the previous criminal proceedings followed against the first applicant casted serious doubts on her impartiality (as well as on the impartiality of the two other judges being part of the Section) which led to a subjective feeling of mistrust that was objectively justified.<\/p>\n 27.\u00a0\u00a0The Court notes that all that Article 34 of the Convention requires is that an applicant should claim to have been affected by an act, omission or situation said to be in breach of the Convention. Thus, the questions whether the applicants have in fact been so affected and whether they are actually the victims of a breach go to the merits of the case (see Klass and Others v. Germany, 6 September 1978, \u00a7\u00a7 33 and 38, Series A no. 28; Do\u011fan and Others v. Turkey, nos. 8803-8811\/02, 8813\/02 and 8815-8819\/02, \u00a7 93, ECHR 2004-VI (extracts); Al-Skeini and Others v. the United Kingdom [GC], no. 55721\/07, \u00a7 106-07, ECHR 2011-IV; and Dimov and Others v. Bulgaria, no. 30086\/05, \u00a7 61, 6 November 2012).<\/p>\n 28.\u00a0\u00a0Consequently, the Government\u2019s preliminary objection of a lack of victim status is rejected.<\/p>\n 2.\u00a0\u00a0Non exhaustion of domestic remedies<\/em><\/p>\n (a)\u00a0\u00a0As regards the first applicant<\/p>\n 29.\u00a0\u00a0The Government raised an objection of failure to exhaust domestic remedies as regards the first applicant by claiming the applicant did not bring a specific complaint about the alleged lack of \u201csubjective\u201d impartiality.<\/p>\n 30.\u00a0\u00a0The Court reiterates that under Article 35 \u00a7 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220\/00, \u00a7 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of directly resolving the impugned state of affairs (see Balogh v.\u00a0Hungary, no. 47940\/99, \u00a7 30, 20 July 2004). The Court notes that the application of this rule must make due allowance for the context of the individual case including, among other things, the personal circumstances of the applicant. Accordingly, the Court has recognised that Article 35 \u00a7 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, \u00a7\u00a7 65-66 and 69, Reports of Judgments and Decisions 1996\u2011IV).<\/p>\n 31.\u00a0\u00a0When assessing impartiality, the Court has distinguished between a subjective approach (i.e., endeavouring to ascertain the personal conviction or interest of a given judge in a particular case) and an objective approach, i.e. determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (Kyprianou v. Cyprus [GC], \u00a7 118; Piersack v. Belgium, \u00a7 30; and Grieves v. the United Kingdom [GC], \u00a7 69). The Court recalls that there is no watertight division between the two notions since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (Korzeniak v. Poland, no. 56134\/08, \u00a7 49, 10 January 2017; and Kyprianou v. Cyprus[GC], no. 73797\/01, \u00a7 119, ECHR 2005\u2011XIII).<\/p>\n 32.\u00a0\u00a0The Court observes that the complaint concerning the impartiality of the Fourth Section of the Audiencia Nacional on the ground that it had previously been declared biased in former proceedings, was properly raised \u201cin substance\u201d in the framework of the domestic proceedings and in compliance with the formal requirements and time-limits laid down in domestic law (see Castells v. Spain, 23 April 1992, \u00a7 27, Series A no. 236; and Guzzardi v. Italy, 6 November 1980, \u00a7 72, Series A no. 39). Indeed, the applicant brought properly to the attention of the domestic tribunals his fears as to the lack of impartiality of the presiding judge (and, consequently, the whole new panel) on the grounds of her previous behaviour displayed in the framework of previous criminal proceedings where the Supreme Court had determined that it casted doubts on the absence of prejudice or bias against him.<\/p>\n 33.\u00a0\u00a0Therefore, the Government\u2019s objection that the first applicant failed to exhaust domestic remedies must therefore be dismissed.<\/p>\n (b)\u00a0\u00a0As regards the third applicant<\/p>\n 34.\u00a0\u00a0The Government observed that the third applicant did not raise this specific complaint before the domestic courts, namely, by challenging the judge(s) before the Audiencia Nacional or through the cassation appeal and the amparo appeal lodged with the Supreme Court and the Constitutional Court, respectively.\u00a0\u00a0The Government further argued that the amparo appeal was an effective remedy compatible with the requirements of Article 13 of the Convention.<\/p>\n 35.\u00a0\u00a0The third applicant noted that the first applicant had properly raised this specific complaint before domestic courts and by that giving the opportunity to the State to put matters right through their own legal systems.<\/p>\n 36.\u00a0\u00a0The Court notes that all of the applicants were defendants in the same criminal proceedings facing the similar criminal charges based on the similar incriminating evidence. The Court further notes that the remaining applicants brought to a sufficient degree all of the matters raised in the present complaint to the attention of the domestic courts in their appeal (specially their amparo appeal). Indeed, the first applicant challenged the presiding judge before the Audiencia Nacional and brought a cassation appeal and an amparo appeal with both the Supreme Court and the Constitutional Court where he specifically brought this particular complaint. In the same manner, the second, fourth and fifth applicant also brought this complaint before the Constitutional Court.<\/p>\n 37.\u00a0\u00a0Accordingly, in so far as the third applicant was in the same situation as the other applicants and raised the same complaints before the Court, the domestic appeal lodged by the other applicants brought to the domestic authorities\u2019 attention all of the alleged defects in the trial that affected all of them, including the third applicant (see Huseyn and Others v. Azerbaijan, nos. 35485\/05, 45553\/05, 35680\/05 and 36085\/05, \u00a7 136-137, 26\u00a0July\u00a02011).<\/p>\n 38.\u00a0\u00a0In those circumstances, the Court is of the view, because all the appeal Courts (namely, the Audiencia Nacional, the Supreme Court and the Constitutional Court) examined the substance of applicants\u2019 complaint, that the Government\u2019s objection of non-exhaustion of domestic remedies must be dismissed.<\/p>\n (c)\u00a0\u00a0As regards the second, fourth and fifth applicants<\/p>\n 39.\u00a0\u00a0Furthermore, the Government raised an objection of failure to exhaust domestic remedies as regards the second, fourth and fifth applicants applicant by claiming that they did not raise the present issue neither before the Audiencia Nacional (by challenging the composition of the Fourth Section) nor before the Supreme Court through the cassation appeal. The applicants raised the present complaint only before the Constitutional Court.<\/p>\n 40.\u00a0\u00a0The Court observes that, despite the fact that these applicants did not raise the complaint concerning the lack of impartiality of the Fourth Section of the Audiencia Nacional before the Audiencia Nacional itself or the Supreme Court, they did bring properly to the attention of the domestic tribunals their fears as to the lack of impartiality of the presiding judge, namely, through the amparo appeal lodged with the Constitutional Court, which thoroughly addressed the issue and by that examined the substance of the applicants\u2019 complaint. It follows that the Government\u2019s objection of non-exhaustion of domestic remedies as regards the second, fourth and fifth applicants must be dismissed.<\/p>\n 3.\u00a0\u00a0Conclusion<\/em><\/p>\n 41.\u00a0\u00a0The applications cannot be dismissed on the grounds that the second, third, fourth and fifth applicants lacked victim status or that the applicants failed to exhaust domestic remedies. The Court therefore rejects the preliminary objections raised by the respondent Government. It further considers that the applicants\u2019 complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 42.\u00a0\u00a0The applicants stressed that the presiding\u2019s judge behaviour in previous proceedings, where she and the whole composition had been declared biased against the applicant by the Supreme Court, created a situation which had rendered their fears objectively justified.<\/p>\n 43.\u00a0\u00a0According to the applicants, the fact that the first applicant was finally acquitted once a different composition of the Audiencia Nacional addressed his case was a clear sign that the former Section of the Audiencia Nacional had not been impartial.<\/p>\n 44.\u00a0\u00a0The applicants further argued that the second set of criminal proceedings had a direct legal and factual connection with the first set of proceedings, as in both proceedings the nature of the links with ETA were assessed and judged upon. The act of refusing to condemn the actions of ETA was not in itself a clear sign of belonging to a terrorist organization, yet it could be considered as a relevant element (namely, circumstantial evidence) to support the believe that the first applicant did or did not belong to the terrorist organization ETA.<\/p>\n 45.\u00a0\u00a0The fact that the same composition had sat on the bench of the Fourth Section of the Audiencia Nacional sufficed in itself to show that there had been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 46.\u00a0\u00a0The Government argued that there were several differences between both set of criminal proceedings. The first set of proceedings was only brought against the first applicant, while the second set of proceedings was brought against all the applicants. The charges were also different. While in the first set of proceedings the first applicant was charged with unlawful assembly and association and for encouragement of terrorism, in the second set of proceedings all the applicants were charged with belonging to a terrorist organization (some of them were also charged with being a leader of a terrorist organization). Additionally, the Government stress the fact that the presiding judge was not the judge rapporteur in the second set of proceedings.<\/p>\n 47.\u00a0\u00a0The Government additionally pointed out that what had happened in the previous set of criminal proceedings could not have had any effect on the second set of proceedings. They argued that the alleged partiality of the presiding judge had not prevented her from acquitting the first applicant of the other two charges he was accused of in that first set of criminal proceedings. In fact, that composition of the Audiencia Nacional had acquitted the applicant of the charge of illegal association, which presented some similarities with the charge of belonging to a terrorist organization. They also stressed the fact that the presiding judge had not displayed any sign of bias in the second set of proceedings that could cast doubts as to her impartiality. There were thus no doubts as to the subjective impartiality on the part of the judges who had tried the applicants.<\/p>\n 48.\u00a0\u00a0The Government also added that, since the presiding judge was not the judge rapporteur in the second set of proceedings, her vote was not decisive.<\/p>\n 49.\u00a0\u00a0They also pointed out the fact that the applicants had changed their legal strategy in the framework of the domestic proceedings, previously claiming that there had been a lack of objective impartiality and afterwards indicating that there had been a lack of subjective impartiality.<\/p>\n 50.\u00a0\u00a0According to the Government, the applicants\u2019 intent to prevent the presiding judge from addressing any ETA-related issue was in clear violation of the right to a fair trial by a tribunal established by law.<\/p>\n 51.\u00a0\u00a0The Government finally stressed that, in any case, the reasons that could cast doubts as to the Section\u2019s lack of impartiality towards the first applicant could not display a general effect on all the remaining applicants.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 52.\u00a0\u00a0The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court\u2019s settled case-law, the existence of impartiality for the purposes of Article 6 \u00a7 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797\/01, \u00a7 118, ECHR 2005-XIII; and Micallef v.\u00a0Malta [GC], no. 17056\/06, \u00a7 93, ECHR 2009).<\/p>\n 53.\u00a0\u00a0As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see Kyprianou, cited above, \u00a7 119, and Micallef, cited above, \u00a7 94). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24\u00a0May\u00a01989, \u00a7 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v.\u00a0Belgium, 26\u00a0October 1984, \u00a7 25, Series A no. 86).<\/p>\n 54.\u00a0\u00a0In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef, cited above, \u00a7 95). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, \u00a7 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge\u2019s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v.\u00a0the United Kingdom, 10 June 1996, \u00a7 32, Reports 1996-III).<\/p>\n 55.\u00a0\u00a0As to the objective test, it must be determined whether, quite apart from the judge\u2019s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Micallef, cited above, \u00a7 96).<\/p>\n 56.\u00a0\u00a0The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings (ibid., \u00a7 97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, \u00a7 38).<\/p>\n 57.\u00a0\u00a0In this connection even appearances may be of a certain importance or, in other words, \u201cjustice must not only be done, it must also be seen to be done\u201d (see De Cubber, cited above, \u00a7 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, \u00a7\u00a045, Reports 1998-VIII; and Micallef, cited above, \u00a7 98).<\/p>\n (b)\u00a0\u00a0Application of those principles in the present case<\/p>\n 58.\u00a0\u00a0The Court observes that in the present case the fear of a lack of impartiality laid in the fact that presiding judge had been previously declared biased against the first applicant in a previous set of criminal proceedings which not only had a connection with terrorist activities but also with the applicant\u2019s support (or lack of) of ETA as a central element.<\/p>\n 59.\u00a0\u00a0The Court must firstly address the reference made by the Government as to the applicants\u2019 change of legal strategy, in that they firstly argued that the panel of the Fourth Section lacked impartiality from an objective approach, then changing to a subjective approach. The Court recalls that there is no watertight division between subjective and objective impartiality. In any case, the Court observes that the applicants properly raised in substance the complaint concerning the impartiality of the Fourth Section of the Audiencia Nacional before the domestic authorities, both from a subjective and an objective approach.<\/p>\n 60.\u00a0\u00a0The Court is not persuaded that there is evidence that the presiding judge (or any other member of the panel) displayed personal bias against the applicants in the framework of the second set of criminal proceedings. In the Court\u2019s view, the case must therefore be examined from the perspective of the objective impartiality test, and more specifically it must address the question whether the applicants\u2019 doubts, stemming from the specific situation, may be regarded as objectively justified in the circumstances of the case.<\/p>\n 61.\u00a0\u00a0The Court firstly takes the view that, according to the Supreme Court in its judgment of 2 February 2011 the question put by the presiding judge and, very particularly, her reaction to the appellant\u2019s refusal to give an answer, could be interpreted, from an objective perspective, as an expression of a previously formed opinion on the first applicant\u2019s guilt (see paragraph \u00a7 7 above). This had also contaminated the whole composition of the panel which led the Supreme Court to order a re-trial by a new and different composition of the panel, where none of the three judges could take part. In addition to this, it cannot be ignored that the applicant, who had been initially declared guilty by the former panel of the Fourth Section of the Audiencia Nacional, was finally acquitted after a different panel of judges tried him. The Court notes that this fact, if not conclusively, strongly contributes to the existence of a legitimate fear as to the former panel\u2019s lack of impartiality.<\/p>\n 62.\u00a0\u00a0The Court observes that that same panel of three judges was in charge of trying all the applicants in a second and different set of criminal proceedings, where they were accused, inter alia, of belonging to a terrorist organization, namely, ETA.<\/p>\n 63.\u00a0\u00a0The Court observes that the very singular context of the case cannot be overlooked. It notes that the charge for which the first applicant had been convicted in the first set of proceedings (and later acquitted by a new and different panel composition) could in some way or another be associated with the acts, values and\/or goals of the terrorist organization ETA. Indeed, the applicant was initially convicted for encouragement of terrorism, which, in the Spanish context in general at that time \u2013and the first applicant\u2019s individual context in particular\u2013 was inevitably associated with the terrorist activity of ETA. The presiding judge had showed at that time, as it was confirmed by the Supreme Court, a prejudice against the applicant as regards what she thought was a sort of affinity with the terrorist organization ETA.<\/p>\n 64.\u00a0\u00a0The second set of criminal proceedings, even if they did not deal with similar facts and charges addressed in the first set of criminal proceedings, had the ETA organization and its terrorist activities as a central element: all the applicants were accused either of belonging and being the leaders of or just belonging to a terrorist organization. Consequently, when analysing the first applicant\u2019s link with ETA, the previous prejudice concerning his possible affinity to this terrorist organization inevitably casts doubts, at least from an objective approach, as to the presiding\u2019s judge impartiality.<\/p>\n 65.\u00a0\u00a0The Court considers that the fact that the presiding judge had publicly used expressions which implied that she had already formed an unfavourable view of the first applicant\u2019s case before that case had been finally decided, appears clearly incompatible with her participation in the second set of criminal proceedings. The statements made by the presiding judge, her subsequent behaviour, as well as the following annulment of the judgment were such as to objectively justify the first applicant\u2019s fears as to her impartiality (see Morice v. France [GC], no. 29369\/10, \u00a7\u00a7 79-92, ECHR 2015, Oluji\u0107 v. Croatia, no. 22330\/05, \u00a7 59, 5 February 2009, Buscemi\u00a0v.\u00a0Italy, no. 29569\/95, \u00a7 68, ECHR 1999\u2011VI; and, mutatismutandis, Lavents v. Latvia, no. 58442\/00, \u00a7\u00a7 118 and 119, 28\u00a0November\u00a02002).<\/p>\n 66.\u00a0\u00a0As regards the presiding\u2019s judge lack of impartiality concerning the remaining applicants, the Court observes that all the applicants were charged with belonging to the same terrorist organization. This type of crime necessarily implies a certain degree of collectivity. Indeed, the domestic courts analysed several pieces of evidence involving all the applicants, their strong interpersonal relationship and their common activities. Thus, in the context described, it cannot be completely ruled out that the unfavourable view of the presiding judge as regards the first applicant\u2019s guilt may have had also a negative impact on the remaining applicants. The presiding judge\u2019s previous behaviour (as well as the later annulment of the judgment by the Supreme Court) could objectively justify the remaining applicants\u2019 fears as to her impartiality.<\/p>\n 67.\u00a0\u00a0The last question would be whether the presiding\u2019s judge lack of objective partiality could also cast doubts as to the two remaining members of the panel of the Fourth Section. The Court takes the view that the same rationale that led the Supreme Court to believe that the presiding\u2019s judge lack of impartiality made it necessary to repeat the trial with a new and different composition of the panel must be applicable to the present case. Additionally, the Court notes that the Government\u2019s argument to the effect that the presiding judge was no longer the judge rapporteur is not decisive for the objective impartiality issue under Article 6 \u00a7 1 of the Convention. Indeed, in view of the secrecy of the deliberations, it is impossible to ascertain the presiding\u2019s judge\u2019s actual influence on that occasion (see, mutatis mutandis, Morice[GC], citedabove, \u00a7 89). Therefore, the impartiality of that court could be open to genuine doubt.<\/p>\n 68.\u00a0\u00a0Having regard to the foregoing, the Court finds that in the present case the applicants\u2019 fears could have been considered objectively justified.<\/p>\n 69.\u00a0\u00a0The Court therefore concludes that there has been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 70.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 71.\u00a0\u00a0The first, second, fourth and fifth applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 72.\u00a0\u00a0Only the third applicant claimed EUR 40,000 euros in respect of non-pecuniary damage.<\/p>\n 73.\u00a0\u00a0The Government argued that the applicant\u2019s claim was mostly unsubstantiated.<\/p>\n 74.\u00a0\u00a0Where, as in the instant case, a person is convicted in domestic proceedings that have entailed breaches of the requirements of Article 6 of the Convention, the Court has held that the most appropriate form of redress would, in principle, be a retrial or the reopening of the case, at the request of the interested person (see, among other authorities, Gen\u00e7el v.\u00a0Turkey, no.\u00a053431\/99, \u00a7 27, 23 October 2003; Sejdovic, cited above, \u00a7\u00a0126; and Cudak v. Lithuania [GC], no. 15869\/02, \u00a7\u00a079, ECHR\u00a02010). In this connection, it notes that Section 954\u00a0\u00a7\u00a03 of the Spanish Criminal Procedure Code, as modified by Law 41\/2015, of 5 October 2015, it appears to provide for the possibility of revision of a final decision where it has been determined in a ruling of the Court that there has been a violation of the Convention or one of its Protocols.<\/p>\n 75.\u00a0\u00a0The Court furthermore notes that it has previously concluded that a finding of a violation of Article 6 of the Convention constitutes sufficient just satisfaction for the purposes of Article 41 of the Convention when such procedural arrangements were in place under the domestic law (see, among recent authorities, Hokkeling v. the Netherlands, no. 30749\/12, \u00a7\u00a7 67-68, 14\u00a0February 2017; and Zadumov v. Russia, no. 2257\/12, \u00a7\u00a7 80-81, 12\u00a0December 2017). It reiterates that the payment of monetary awards under Article 41 is designed to make reparation only for such consequences of a violation that cannot be remedied otherwise (see Scozzariand Giunta v.\u00a0Italy [GC], nos.\u00a039221\/98 and 41963\/98, \u00a7 250, ECHR 2000\u2011VIII). Therefore, the finding of a violation constitutes sufficient just satisfaction in the present case.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 76.\u00a0\u00a0The third applicant also claimed EUR 4,000 for the costs and expenses incurred before the Court.<\/p>\n 77.\u00a0\u00a0The Government contested this claim.<\/p>\n 78.\u00a0\u00a0The Court notes that the applicant failed to provide the Court with any justification of the costs incurred. It therefore rejects this claim.<\/p>\n FOR THESE REASONS, THE COURT,<\/strong><\/p>\n 1.\u00a0\u00a0Declares, unanimously, the complaint concerning the alleged violation of Article 6 \u00a7 1 of the Convention in relation to the judicial proceedings carried out before the Audiencia Nacional admissible;<\/p>\n 2.\u00a0\u00a0Holds, unanimously, that there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds, by six votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the third applicant;<\/p>\n 4.\u00a0\u00a0Dismisses, by six votes to one, the remainder of the third applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 6 November 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Vincent A. De Gaetano _______________<\/p>\n In accordance with Article\u00a045 \u00a7\u00a02 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the separate opinion of Judge Keller is annexed to this judgment.<\/p>\n V.D.G. PARTLY DISSENTING OPINION OF JUDGE KELLER<\/strong><\/p>\n 1.\u00a0\u00a0For the reasons stated in paragraphs 58 to 68 of the judgment, I agree with my colleagues that there has been a violation of Article 6 \u00a7 1 in the present case owing to the lack of impartiality of the Fourth Section of the Audiencia Nacional.<\/p>\n 2.\u00a0\u00a0As regards the application of Article 41 of the Convention, unlike the majority, I am of the opinion that an award in respect of non-pecuniary damage to the third applicant was called for in this case.<\/p>\n I.\u00a0\u00a0Restitutio in integrum under Article 41 of the Convention<\/strong><\/p>\n 3.\u00a0\u00a0To begin with, under Article 41 of the Convention, the Court has the possibility of affording just satisfaction to the injured party. The principle with regard to damage is that the applicant should be placed, as far as possible, in the position in which he or she would have been had the violation not taken place, in other words, restitutio in integrum. However, I believe that, when finding a violation of Article 6, the principle of restitutio in integrumdoes not mean that if domestic law provides for the possibility of retrial or reopening of the case the Court should automatically conclude that there is no need to afford just satisfaction to the injured party.<\/p>\n 4.\u00a0\u00a0The application of Article 41 of the Convention is dependent on the Court\u2019s discretion and on the particular circumstances of the case. The wording of Article 41, which provides that the Court will only award such satisfaction as is considered to be \u201cjust\u201d in the circumstances, and only \u201cif necessary\u201d, makes this clear. Moreover, should the Court find that a monetary award in respect of non-pecuniary damage is necessary, it will make such assessment on an equitable basis. Therefore, the ex aequo and bono character of just satisfaction does \u2013 in my view \u2013 exclude any automatic conclusion. The granting of just satisfaction has always to be made on the assessment of the concrete circumstances of the case.<\/p>\n 5.\u00a0\u00a0The Court follows a case-by-case approach in providing just satisfaction in the event of finding a violation of Article 6 \u00a7 1. For instance, in a number of cases, the Court has found that the applicant suffered non-pecuniary damage for which the finding of a violation of the Convention was not sufficient as a remedy (see mutatis mutandis: Alony Kate v. Spain, no. 5612\/08, \u00a7 83, 17 January 2012; Almenara Alvarez v.\u00a0Spain, no.\u00a016096\/08, \u00a7 54, 25 October 2011; PorcelTerribas and Others v.\u00a0Spain, no. 47530\/13, \u00a7 33, 8 March 2016; G\u00f3mez Olmeda v. Spain, no.\u00a061112\/12, \u00a7\u00a044, 29 March 2016; and Visan v. Romania, no. 15741\/03, \u00a7 41, 24\u00a0April 2008). In several other judgments, the Court decided to make an award in respect of non-pecuniary damage despite highlighting the fact that where an individual, as in the present case, had been convicted following proceedings in breach of the requirements of Article 6 of the Convention, a retrial or reopening of the proceedings at the request of the person concerned was in principle an appropriate means of redressing the violation (see AtutxaMendiola and Others v. Spain, no. 41427\/14, \u00a7\u00a7 51 and 52, 13 June 2017; Sp\u00eenu v.\u00a0Romania, no. 32030\/02, \u00a7 82, 29 April 2008; PaykarYevHaghtanak Ltd v. Armenia, no. 21638\/03, \u00a7\u00a7 56 and 58, 20 December 2007; and Satik v. Turkey (No. 2), no. 60999\/00, \u00a7 74, 8 July 2008).<\/p>\n 6.\u00a0\u00a0I thus take the view that the issue of compensation for non-pecuniary damage is one that has to be determined in the light of the particular circumstances of each case. By contrast, the reasoning adopted by the majority under paragraphs 74 and 75 \u2013 as to the possibility under domestic law of reopening the case \u2013 prematurely restricts the scope for awarding compensation in respect of non-pecuniary damage on account of a breach of Article 6 \u00a7 1.<\/p>\n II.\u00a0\u00a0Specific circumstances in question<\/strong><\/p>\n 7.\u00a0\u00a0The necessity of a case-specific approach is heightened because of the particular circumstances in this case that need to be carefully reviewed.<\/p>\n 8.\u00a0\u00a0Only the third applicant submitted a claim for just satisfaction in respect of non-pecuniary damage (paragraphs 71 and 72 of the judgment). This applicant had no criminal record at the time of conviction. He was criminally charged on the ground that a political party that the applicants intended to create was deemed to be under the control of the terrorist organisation ETA (paragraph 11 of the judgment). The third applicant, along with the first one, was found to be a member and leader of a terrorist organisation; he was sentenced to ten years\u2019 imprisonment and disqualified from taking part in elections for the same length of time (paragraph 14 of the judgment). This sentence was then reduced to six years and six months of imprisonment, while the disqualification remained. The third applicant served his sentence in full and was released in 2017.<\/p>\n 9.\u00a0\u00a0In my view, it is inappropriate to hold that, in the present case, the finding of a violation of Article 6 \u00a7 1 of the Convention constitutes sufficient just satisfaction on the basis that the applicant has the possibility, under Section 954 \u00a7 3 of the Spanish Criminal Procedure Code, of requesting a review of the domestic court\u2019s decision (paragraphs 74 and 75 of the judgment).<\/p>\n 10.\u00a0\u00a0Indeed, such a finding inevitably means that the third applicant, who is now out of prison, would be faced with a Cornelian dilemma: going through lengthy legal proceedings once more, with the anxiety that this inevitably entails, or not requesting such revision, therefore losing any possibility of being compensated. Furthermore, the Court should also take into account the sensitive social and political dimensions of the case, which could raise interrogations about reaching a different outcome should the applicant\u2019s case be retried.<\/p>\n 11.\u00a0\u00a0In any case, I consider that the applicant\u2019s detention, which lasted more than six years, prevented him from participating in political life in his country, and naturally caused him feelings of anxiety, injustice and frustration \u2013 amongst others \u2013, such that a mere finding of a violation cannot in itself suffice to compensate for the non-pecuniary damage from which he suffered.<\/p>\n 12.\u00a0\u00a0Moreover, I believe that the Court itself has added to the length of the violation by not issuing a judgment earlier. The applicants lodged their applications with the Court in 2015. Because the applicants were incarcerated at the time, the case was prioritised. Nonetheless, it still took the Court more than three years to come to a decision on this case, during which time the applicants served their prison sentence in full and were released. Such failure of this Court to provide a timely remedy should have been taken into account in an award for non-pecuniary damage in the present case.<\/p>\n III.\u00a0\u00a0Domestic law and practice<\/strong><\/p>\n 13.\u00a0\u00a0Section 954 \u00a7 3 of the Spanish Criminal Procedure Code, as modified by Law 41\/2015 of 5 October 2015, provides for the possibility for the victim of a violation of the Convention to request review of the domestic court\u2019s decision which led to such violation. However, there is still no consistent domestic practice to rely on in order to assess the availability and effectiveness of such remedy.<\/p>\n 14.\u00a0\u00a0Law 41\/2015 creates a right for the applicant to request a review of the domestic court\u2019s decision based on a finding of a violation by this Court. It does not, however, create a corresponding obligation for the domestic judge to grant such request.<\/p>\n 15.\u00a0\u00a0Section 954 \u00a7 3 further renders the request for revision dependent on the condition that \u201cthe violation, by its nature and seriousness, entails persistent effects which cannot cease otherwise than through this revision\u201d. Assuming that the applicant would request a review of the domestic court\u2019s decision, the wording of this provision leads me to question whether such request would be granted. As stated above, the applicant has now been released and has fully regained his political rights. In any case, it is difficult to ascertain the scope of this provision given that, as mentioned above, there is no consistent practice to rely on.<\/p>\n 16.\u00a0\u00a0In view of the above, I conclude that it cannot be ascertained with sufficient clarity that a genuine opportunity to reopen the proceedings is available to the applicant under domestic law.<\/p>\n 17.\u00a0\u00a0In the event that the national authorities would refuse to review the domestic court\u2019s decision, the applicant could file another application with the Court to claim non-pecuniary damage once again. In my opinion, such a solution is still unsatisfactory as it would further delay the possibility of reparation, when the applicant has already spent more than six years in prison and has waited more than seven years to obtain the recognition of the violation of his right under Article 6 \u00a7 1 of the Convention. Time is always precious in life, but it becomes even more precious here if we take into account that the applicant was born in 1956 and wants to take part in the political life of Spain.<\/p>\n IV.\u00a0\u00a0General considerations: functions of reparation and universality<\/strong><\/p>\n 18.\u00a0\u00a0The Convention confers on the Court two separate functions: firstly, to determine whether a violation of a fundamental right has taken place, and secondly, to award just satisfaction should the breach be ascertained. In the case at hand, the Court, having addressed the first function, dispenses itself from discharging the second. In doing so, the Court fails to bear in mind that just satisfaction goes beyond mere compensation and also holds a broader function, which is both preventive and instructive. The award of just satisfaction, besides reinstating the victim in his fundamental right, serves as a concrete warning to governments. It creates a financial incentive for the respondent State to change its practice and to prevent circumstances similar to those that led to a violation from arising again.<\/p>\n 19.\u00a0\u00a0Finally, any finding of violation(s) in cases involving prisoners, criminals or terrorists is highly sensitive and rarely well received by the general public (see Scoppola v. Italy (No.2), no. 10249\/03, 17 September 2009; and \u00d6calan v. Turkey, no. 46221\/99, 12 May 2005).<\/p>\n 20.\u00a0\u00a0However, the Court should not lose sight of the fact that, when setting out the need for just satisfaction, Article 41 does not distinguish between \u201cgood\u201d and \u201cbad\u201d victims. The Court should thus remain consistent in its interpretation of Article 41 of the Convention and avoid making an award for non-pecuniary damage to the former while resorting to a mere finding of a violation with regard to the latter.<\/p>\n 21.\u00a0\u00a0This argument is rooted in the principle of universality of human rights. Under this principle, all individuals are inherently entitled to inalienable freedoms and rights. Human rights are thus universal and belong to everyone, independently of any personal characteristics. The Convention similarly requires the member States to protect the rights and freedoms of every individual within their jurisdiction (Article 1 of the Convention), without discrimination.<\/p>\n 22.\u00a0\u00a0Therefore I do not agree with the refusal of the Court to make an award of non-pecuniary damage to the third applicant, as it creates a distinction that does not exist under Article 41 of the Convention, and goes against one of the primary characteristics of human rights.<\/p>\n V.\u00a0\u00a0Conclusion<\/strong><\/p>\n 23.\u00a0\u00a0In the light of the above and under the circumstances of the present case, it would have been preferable for the Court to award the injured party (the third applicant) some equitable satisfaction rather than simply state that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage sustained.<\/p>\n <\/p>\n APPENDIX Date of birth<\/strong><\/p>\n \u00a0<\/strong><\/td>\n \u00a0<\/strong><\/p>\n 06\/07\/1958<\/td>\n <\/p>\n Olivier PETER<\/td>\n<\/tr>\n \u00a0<\/strong><\/p>\n 28\/11\/1977<\/td>\n <\/p>\n Olivier PETER<\/td>\n<\/tr>\n \u00a0<\/strong><\/p>\n 21\/08\/1956<\/td>\n \u00a0<\/strong><\/p>\n 26\/10\/1981<\/td>\n <\/p>\n Olivier PETER<\/td>\n<\/tr>\n \u00a0<\/strong><\/p>\n 01\/02\/1979<\/td>\n <\/p>\n Olivier PETER<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\nHelen Keller,
\nDmitry Dedov,
\nPere Pastor Vilanova,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nJolienSchukking,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\nJ.S.P.<\/p>\n
\n<\/strong><\/p>\n\n\n
\n No.<\/strong><\/td>\n Application No.<\/strong><\/td>\n Lodged on<\/strong><\/td>\n Applicant<\/strong><\/p>\n Represented by<\/strong><\/td>\n<\/tr>\n<\/thead>\n\n \n 1.<\/td>\n 4184\/15<\/td>\n 14\/01\/2015<\/td>\n Arnaldo OTEGI MONDRAGON<\/strong><\/p>\n Jone GOIRIZELAIA ORDORIKA<\/p>\n \n 2.<\/td>\n 4317\/15<\/td>\n 14\/01\/2015<\/td>\n Sonia JACINTO GARCIA<\/strong><\/p>\n Jone GOIRIZELAIA ORDORIKA<\/p>\n \n 3.<\/td>\n 4323\/15<\/td>\n 14\/01\/2015<\/td>\n Rafael DIEZ USABIAGA<\/strong><\/p>\n I\u00f1igo IRUIN SANZ<\/td>\n<\/tr>\n \n 4.<\/td>\n 5028\/15<\/td>\n 14\/01\/2015<\/td>\n Miren ZABALETA TELLERIA<\/strong><\/p>\n Jone GOIRIZELAIA ORDORIKA<\/p>\n \n 5.<\/td>\n 5053\/15<\/td>\n 14\/01\/2015<\/td>\n Arkaitz RODRIGUEZ TORRES<\/strong><\/p>\n Jone GOIRIZELAIA ORDORIKA<\/p>\n