Council of Europe: 

European Court of Human 

Rights and the Parot Doctrine

March 2014

The Law Library of Congress, Global Legal Research Center

(202) 707-6462 (phone) • (866) 550-0442 (fax) • law@loc.gov • http://www.law.gov
This report is provided for reference purposes only. 

It does not constitute legal advice and does not represent the official 

opinion of the United States Government. The information provided 

reflects research undertaken as of the date of writing. 

It has not been updated.
Council of Europe: 

European Court of Human Rights and the Parot Doctrine

Theresa Papademetriou

Senior Foreign Law Specialist

SUMMARY In 2006, the Supreme Court of Spain (SCS) adopted the so-called “Parot Doctrine” in 

which it established that sentence reductions for prison benefits, including remission for 

work performed, was to apply to each sentence individually and not to the maximum term. 

The doctrine was challenged before the European Court of Human Rights (ECHR) in the 

case of Del Rio Prada v. Spain, involving a former member of the ETA sentenced to eight 

sentences, whose prison term was extended by nine years after being recalculated based on 

this Doctrine. 

The European Court of Human Rights, in its judgment of July 2012, unanimously 

concluded that the Spanish Supreme Court’s application of the new caselaw had not been 

foreseeable at the time of the applicant’s conviction and had amounted to retroactive 

application, which was to the applicant’s detriment. Consequently, the ECHR ordered that 

the applicant be released. Spain challenged the ECHR’s decision and requested that the 

case be referred to the seventeen-member Grand Chamber of the ECHR. The referral was 

accepted and a hearing occurred on March 20, 2013. 

In an October 2013 judgment, the Grand Chamber of the European Court of Human Rights 

upheld the 2012 decision of the Chamber and ordered Spain to release the applicant at the 

earliest possible date and pay just satisfaction along with costs and expenses for a violation 

of her rights, based on its determination that Spain had violated two key provisions of the 

Convention for the Protection of Human Rights and Fundamental Freedoms. Spain 

immediately complied with the decision and released the applicant, generating much 

public controversy.

I. Introduction

In 2006, the Spanish Supreme Court, departing from its earlier caselaw, which had held that a 

sentence combining several sentences by imposing the maximum term of imprisonment of thirty 

years provided by the Spanish Criminal Code was a new sentence subject to prison benefits,

including remission for work performed, established the so-called “Parot Doctrine,” named after

Unai Parot, a convicted member of the armed Basque separatist group ETA, whose prison term 

was extended based on the doctrine.1 This doctrine introduced a new method of calculating 

prison benefits to each sentence individually, rather than to the maximum prison term of thirty 

years. The doctrine was challenged before the European Court of Human Rights (ECHR) in the 

case of Del Rio Prada v. Spain on the grounds of the nonretroactivity of criminal law, right to 

1 Spain Challenges Human Rights Court over “Parot Doctrine” Ruling, EITB.COM (July 11, 2012), 

http://www.eitb.com/en/news/politics/detail/922240/parot-doctrine--spain-challenges-echr-parot-doctrine/.

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liberty, security of a person, and nondiscrimination, since, as the applicant alleged, it applied 

discriminatorily to individuals accused of terrorist offenses.

2

II. Del Rio Prada Case Before the Spanish Courts

The facts of the case involve an applicant, a citizen of Spain, who in eight criminal proceedings 

was found guilty of terrorist attacks and was sentenced to eight prison terms. If served 

successively, the applicant would be in prison for more than three thousand years. In November 

2000, the Audiencia Nacional (a special high court established in 1977 whose criminal chamber

deals with such crimes as terrorism offenses, money laundering, genocide, and others, including 

international crimes) combined all the sentences for a maximum of thirty years allowed by the 

Spanish Criminal Code. The prison authorities set the date of release of the applicant for July 

2008, after applying remission for work done in prison. The original date of release was June 27, 

2017, which was reduced because of work in prison to July 2, 2008.

The Supreme Court of Spain, from March 1994 onwards, had consistently applied its caselaw to 

hold that the maximum term of thirty years provided for in article 70, para. 2 of the 1973 

Criminal Code acted as a “new and autonomous sentence, to which the prison benefit provided 

for by law should be applied .”3 These benefits include a reduction of the sentence.4 However, 

the Supreme Court changed its position in a judgment dated February 28, 2006, and introduced 

the Parot Doctrine, which, as noted above, applied remission to each sentence individually and 

not to the maximum thirty-year term.5 In its reasoning, the Supreme Court stated that the 1994 

decision did not create a precedent, since it had not been applied continuously, as required; but 

even if it created a precedent, the Court continued, the constitutional principle of equality before 

law did not prevent the Court from amending its previous judgment, provided that its decision to 

do so was well substantiated.6

In May 2008, the Audiencia Nacional asked the prison authorities to recalculate the release date 

based on this new caselaw established by the Supreme Court, under which remission was to 

apply to each sentence individually, and not to the limit of thirty-years imprisonment, as 

provided for by the Criminal Code. Based on the new caselaw, the release date of the applicant 

was recalculated for June 27, 2017. The applicant appealed the case with no success.7

2 Case of Del Rio Prada v. Spain, App. No. 42750/09, Judgment of the ECHR (Third Section), paras. 3 & 76,

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-112108.

3 Id. para. 41. 

4 Id. para. 23 (citing article 78 of the Spanish Criminal Code of 1995).

5 Id. para. 27. 

6 Id. para. 28. 

7 Id. paras. 14–17. 

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III. Case of Del Rio Prada v. Spain – European Court of Human Rights 

A. Chamber’s Judgment

The applicant complained before the European Court of Human Rights (ECHR) that the 

retroactive application of the Supreme Court’s caselaw to her case violated article 7, paragraph 1

of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF),

which provides as follows:

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.8

In addition, the applicant complained that her continued detention infringed article 5 dealing with 

the right to liberty and security. Lastly, the applicant claimed that the new caselaw of the 

Spanish Supreme Court violates the prohibition on discrimination, enshrined in article 14 of the 

CPHRFF, since it is applied by the Spanish courts for political expediency to delay the release of 

prisoners convicted of acts of terrorism.9

The government argued that article 7 applied to crime and punishment but not to the calculation 

of prison sentences and reduction thereof10 and stated accordingly that the calculation of benefits 

to the prison sentence was outside the scope of article 7.

In examining the merits of the case, the ECHR recalled that article 7 has a preeminent place in 

the Convention and no derogation is allowed even in times of war or other emergency, and that 

article 7 is not limited to prohibiting retroactivity of the law but also embodies the principle that 

the criminal law must not be extensively construed to an accused’s detriment.

11

The ECHR also stated that the notion of a “penalty” in article 7 is an autonomous Convention 

concept, and thus, in order to render the protection offered by article 7 effective, the Court must 

assess for itself whether a particular measure amounts in substance to a “penalty” within the 

meaning of this provision.

12 The ECHR also noted that its case law has distinguished between a 

measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or 

“enforcement” of the “penalty.” In consequence, where the nature and purpose of a measure 

8 Convention for the Protection of Human Rights and Fundamental Freedoms art. 7, para. 1, Nov. 4, 1950, entered 

into force Sept. 3, 1953, 213 U.N.T.S. 222, as amended by Protocols No. 11 and 14, 

http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG.

9 Case of Del Rio Prada v. Spain, App. No. 42750/09, Judgment of the ECHR (Third Section), paras. 3 & 76, 

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-112108.

10 Id. para. 36. 

11 Id. paras. 45–46. 

12 Id. para. 48. 

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relate to the remission of a sentence or a change in a regime for early release, this does not form 

part of the “penalty” within the meaning of article 7.

13

In applying the above principles to the Del Rio case, the Court stated that the issue that the Court 

needed to determine in the present case is what the “penalty” imposed on the applicant actually 

entailed under the domestic law. It stated that it must, in particular, ascertain whether the text of 

the law, read in the light of the accompanying interpretative case law, satisfied the requirements 

of accessibility and foreseeability. In doing so it must have regard to the domestic law as a 

whole and the way it was applied at the material time. The ECHR noted that the applicant had, 

indeed, committed the offenses and that the relevant article of the Spanish Criminal Code of 

1973 referred to a limit of thirty years’ imprisonment as the maximum term or sentence to be 

served in the event of multiple sentences. Thus, the ECHR noted a distinction between the 

concept of “sentence to be served” and the sentences actually “pronounced” or “imposed,” that is 

to say the individual sentences pronounced in the different judgments convicting the applicant.

14

In examining the origins of the Parot Doctrine and subsequent practice followed by the Spanish 

court, the ECHR also took into consideration the domestic caselaw and practice regarding the 

interpretation of the relevant provisions of the Criminal Code of 1973. Thus, it noted that in 

Spain, common practice entailed that when a person was convicted and sentenced to more than 

one term of imprisonment, the prison authorities and the judicial authorities deemed that the

thirty-year limit provided for in the Criminal Code of 1973 became a new sentence eligible for 

prison benefits, including reduction of sentence for work done.15 The ECHR noted that this 

practice originated in the Spanish Supreme Court’s judgment in 1994 and subsequently the 

courts of Spain applied this ruling to similar cases.16 In 2006, the Supreme Court introduced a 

new method of calculating remission to each sentence individually and reasoned that this 

approach was more consistent with the language of the Spanish Criminal Code of 1973, which 

differentiated between “penalties imposed” and “penalties to be served.”17 However, the ECHR 

acknowledged that this new ruling took effect long after the applicant’s prison term was 

calculated and resulted in extending the applicant’s prison term by nine years.18 The ECHR also 

observed that the new precedent established by the Supreme Court was adopted after the 

Criminal Code of Spain was amended in 1995 to introduce stricter rules in the calculation of 

remission. In this respect, the ECHR noted that States are free to change their criminal 

codes; however, 

13 Id. 

14 Id. para. 52.

15 Id. para. 53.

16 Id.

17 Id. para. 56. 

18 Id. paras. 58–59. 

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the domestic courts must not, retroactively and to the detriment of the individual 

concerned, apply the spirit of legislative changes brought in after the offense was 

committed. The retroactive application of later criminal laws is permitted only when the 

change of law is more favorable to the accused.19

Consequently, the ECHR found that there was a violation of article 7 of the CPHRFF.

The ECHR also found that the applicant’s detention after July 2008 was not lawful and 

consequently found a violation of article 5.20 The ECHR rejected the applicant’s argument that 

the new calculation of prison benefits was applied discriminatorily because it mainly applied to 

perpetrators of terrorist offenses such as ETA members and not to other prisoners, stating that the 

precedent established by the Supreme Court was general and was equally applicable to 

all detainees.21

The ECHR ordered that the applicant be released at the earliest possible date and be awarded 

€30,000 (approximately US$40,000) for nonpecuniary damages, plus costs and expenses.22

B. Spain Appeals the ECHR Judgment

Pursuant to article 43 of the CPHRFF, any party to the case may within three months from the 

date of a Chamber judgment request that the case be referred to the seventeen-member Grand 

Chamber of the Court. In that event, a panel of five judges considers whether the case raises a 

serious question affecting the interpretation or application of the Convention or its protocols, or a 

serious issue of general importance, in which case the Grand Chamber will deliver a final 

judgment. If no such question or issue arises, the panel will reject the request, at which point the 

judgment becomes final.23

In July 2012, Spain announced that it would appeal the case. Spain’s interior minister also 

announced that Spain did not intend to release Prada, a convicted member of ETA.24 In October 

2012, following the Spanish government’s request, the Grand Chamber of five judges referred 

the case of Del-Rio Prada v. Spain to the seventeen-member Grand Chamber of the ECHR. The 

issue before the Grand Chamber was the legality of the postponement of the date of the 

applicant’s release, due to the application of new caselaw adopted by the Supreme Court after the 

19 Id. para. 62 (citations in original omitted).

20 Id. para. 75.

21 Id. paras. 76–79.

22 Id. para. 91(5), (6). 

23 Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 8, art. 43 

24 EITB.COM, supra note 1.

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applicant had been sentenced.25 A hearing took place before the Grand Chamber on March 

20, 2013.26

C. Final Judgment of the Grand Chamber and its Implementation

On October 21, 2013, the much-anticipated final judgment of the Grand Chamber (GC) of the 

European Court of Human Rights (ECHR) in the case of Del-Rio Prada v. Spain was issued.

27

The GC, composed of seventeen judges, had to ascertain whether Spanish judicial and prison 

authorities violated two provisions of the Convention for the Protection of Human Rights and 

Fundamental Freedoms: (1) article 7, which provides that no punishment may be imposed 

without a law; and (2) article 5, on the right to liberty and security of a person.28

All judgments of the Grand Chamber are final.29 Spain is required to abide by the final judgment 

of the Grand Chamber.30 Once a judgment is final, the ECHR forwards the judgment to the 

Council of Ministers, which is in charge of supervising its implementation by the national 

authorities.31

Spain has now complied with the GC’s final judgment (see discussion below). If Spain had 

refused to do so, the Committee of Ministers, after serving formal notice on Spain and by 

decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the 

Committee, could have referred to the Court the question of whether Spain had failed to fulfill its 

obligation to abide by the judgment.32 If the Court had found that Spain failed to fulfill its 

obligation, it then could have referred the case to the Committee of Ministers for consideration of 

the measures to be taken. When the Court finds that no violation has occurred, it must refer the 

case to the Committee of Ministers, which must close its examination of the case.33

IV. Parties’ Submissions to the GC

The applicant argued before the GC that the Parot Doctrine, as applied to her case to increase the 

length of her incarceration, amounted to retroactive imposition of an additional penalty, as the 

Doctrine was formulated in a 2006 judgment after her original sentence was imposed. She also 

25 Press Release, ECHR 389, Case Referred to the Grand Chamber (Oct. 23, 2012), http://hudoc.echr.coe.int/sites/ 

eng/pages/search.aspx?i=003-4127837-4862363.

26 Press Release, ECHR 086, Grand Chamber Hearing Concerning the Date of a Convicted Terrorist’s Release (Mar. 

20, 2013), http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4298564-5137753.

27 Case of Del Rio Prada v. Spain, Grand Chamber of the ECHR, Oct. 21, 2013, http://hudoc.echr.coe.int/sites/ 

eng/pages/search.aspx?i=001-127697.

28 See Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 8, arts. 5 & 7.

29 Id. art. 44, para. 1.

30 Id. art. 46, para. 1.

31 Id. para. 3. 

32 Id. para. 4. 

33 Id. para. 5. 

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claimed that the Supreme Court’s (SC’s) departure from its earlier case law in the 2006 decision 

could not have been reasonably foreseen based on its previous practice and case law.34 In 

addition, the applicant raised the argument that the Spanish government failed to justify the 

reasons the Parot Doctrine was applied retroactively or, additionally, that it was applied as a 

response to “new social realities.”35

For its part, the Spanish government reiterated that the applicant was an ETA member who had 

committed a number of terrorist acts from 1982 until 1987, when she was detained. The 

government supplied information to the GC that the Parot Doctrine had been applied to ninetythree convicted members of ETA and thirty-seven other people who were convicted of 

particularly serious crimes (drug traffickers, rapists, and murderers).36

The government conceded that the Spanish courts and prison authorities applied remissions of 

sentences for work performed during detention to the thirty-year maximum term of 

imprisonment. However, the government argued that this practice was related to the execution 

of that penalty. The government also cited a number of judgments of the Constitutional Court 

that followed the distinction between a “penalty” and its “execution.” The government argued 

that the Chamber of the ECHR erred in its decision on the issue of predictability—that is, 

whether a person in detention should be able to predict the exact term of imprisonment they will 

be subject to. Furthermore, it argued that since prison authorities were in charge of remissions, 

the Supreme Court of Spain should be immune from criticism for departing from its earlier 

practice on application of remissions and that the 2006 departure from its case law did not violate 

article 7 of the European Convention on Human Rights and Fundamental Freedoms.37

V. Grand Chamber’s Review 

A. Article 7 (No Punishment Without a Law) 

Under article 7, the GC examined the scope of the penalty imposed on the applicant on the basis 

of the applicable Spanish law and the practice of the Spanish courts. 

The GC noted that, prior to the SC’s establishment of the Parot Doctrine in its 2006 judgment, 

the Spanish prison authorities and the Spanish courts consistently applied any remissions of 

sentences to the thirty-year maximum sentence and not to individual sentences imposed by 

judgments on the applicant. The GC also took note that the SC itself endorsed this approach in a 

1994 judgment.38

Furthermore, the GC noted that this approach was applied to a large number of convicted 

individuals like the applicant, until the Supreme Court took a different approach in 2006 in a 

34 Case of Del Rio Prada v. Spain, Grand Chamber of the ECHR, paras. 62 & 63.

35 Id. para. 69. 

36 Id. para. 44.

37 Id. para. 73.

38 Id. paras. 35–39.

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case involving a member of the ETA group, named Parot. In the Parot case, the SC held that 

remissions of sentence granted to prisoners were to be applied to each of the sentences imposed 

and not to the maximum term of thirty years provided for in article 70.2 of Spain’s Criminal 

Code of 1973. The GC thoroughly reviewed the reasoning and arguments used by the SC on 

which it based its decision and also reviewed the opinion of the three dissenting judges. In 

addition, it noted that the Supreme Court upheld the Parot Doctrine in subsequent decisions.39

The GC also reviewed the judgment of the Chamber of the Court of Human Rights, which was 

adopted on July 10, 2012.40

The GC examined the issue of whether the application of the Parot Doctrine to the applicant had 

affected the manner of execution or enforcement of her sentence, or affected its scope.

41 It 

reiterated the distinction between measures that constitute a “penalty” and measures that relate to 

the manner of its “execution.” The GC stated that the concept of a “penalty” under article 7, 

section 1 of the European Convention on Human Rights and Fundamental Freedoms is an 

autonomous Convention concept and that the GC had to assess for itself whether a particular 

measure amounted to a penalty.42 The Court noted that only penalties fell within the scope of 

article 7.43

The GC held that at the time the applicant was convicted for the crimes committed, and when the 

decision to combine the sentences and fix a maximum prison term was made, the applicable 

Spanish law and relevant caselaw were stated sufficiently enough to raise reasonable 

expectations on the applicant’s part as to the scope of the penalty imposed on her.44

The GC went on to examine whether application of the Parot Doctrine to the applicant altered 

only the means of execution of the penalty or its actual scope.

45

The GC noted that application of the Parot Doctrine to the present case could not be regarded as 

a measure relating solely to the execution of the penalty imposed on the applicant, as the 

government argued. The GC stated that the measure taken by the court that convicted the 

applicant also led to the redefinition of the scope of the penalty imposed, and that, “[a]s a result 

of the ‘Parot doctrine’, the maximum term of thirty years’ imprisonment ceased to be an 

independent sentence to which remissions of sentence for work done in detention were applied, 

and instead became a thirty-year sentence to which no such remissions would effectively be 

39 Id. para. 43.

40 Id. paras. 57–60.

41 Id. para. 83. 

42 Id. para. 81.

43 Id. paras. 81–90. 

44 Id. para. 103. 

45 Id. paras. 104–110.

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applied.”46 Therefore, the GC concluded that the measure fell within the scope of article 7, 

paragraph 1 of the Convention.47

As to the issue of whether the Parot Doctrine was reasonably foreseeable, the GC held that,

based on the circumstances of this case, at the time when the applicant was convicted and at the 

time she was notified of the decision to combine her sentences and set a maximum term of 

imprisonment, the applicant had no indications that the Supreme Court might depart from its 

previous caselaw. Furthermore, the applicant could not foresee that the Audiencia Nacional, as a 

result, would apply the remissions of sentence granted to her not in relation to the maximum 

thirty-year term of imprisonment to be served, but individually to each of the sentences she had 

received. The GC held that the SC’s departure from the caselaw had the effect of modifying the 

scope of the penalty imposed, to the applicant’s detriment.48 Consequently, the GC concluded 

that there was a violation of article 7 of the Convention.49

B. Article 5, Paragraph 1 (Right to Liberty and Security of the Person) 

The Court noted that, while article 7 applied to the penalty imposed by the Spanish courts, the 

scope of article 5 applied to the resulting decision. 

In applying article 5, paragraph 1 to this case, the GC stated that it did not question the fact that 

the applicant was convicted by a competent court in accordance with a procedure prescribed by 

law, within the meaning of article 5, section 1(a) of the Convention. The GC admitted that the 

applicant herself “did not dispute that her detention was legal until 2 July 2008—the date 

initially proposed by the prison authorities for her final release.” The Court was therefore 

required to establish whether the applicant’s continued detention after that date was “lawful” 

within the meaning of article 5, section 1 of the Convention.50

The GC went on to examine whether the law on whose authority the continuing detention of the 

applicant beyond July 2, 2008, was based was ‘sufficiently foreseeable” in its application. It 

stated that compliance with the foreseeability requirement must be examined with regard to the 

law in force at the time of the initial conviction and throughout the subsequent period 

of detention.51

The GC opined that, based on the totality of circumstances—in particular, when the applicant 

was convicted, when she worked during the period of her detention, and when she was notified 

by prison authorities of the decision to combine the sentences and set a maximum term of 

imprisonment—the applicant “could not have foreseen to a reasonable degree” that the method 

used to apply remissions of sentence for work done in detention would be affected because of the 

46 Id. para. 109. 

47 Id. 

48 Id. para. 117. 

49 Id. para. 118. 

50 Id. para. 128. 

51 Id. para. 130.

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departure of the SC’s case law in 2006. Furthermore, as the GC noted, the applicant also could 

not reasonably have foreseen that the new method of calculating remissions would be applied to 

her case.52

The GC acknowledged that the new approach of the Supreme Court to the applicant’s case in 

effect prolonged her detention by almost nine years. The GC concluded that the applicant 

“served a longer term of imprisonment than she should have served under the domestic 

legislation in force at the time of her conviction, taking into account the remissions of sentence 

she had already been granted in conformity with the law.”53

Consequently, the GC found unanimously that there was a violation of article 5, paragraph 1, and 

that since July 3, 2008, the applicant’s detention had not been “lawful.”54

VI. Execution of Judgment and Appeal

In this particular case, the GC decided that the only appropriate measure to be taken by Spain 

was to release the applicant at the earliest possible date. It also held that Spain must pay the 

applicant nonpecuniary damages in the amount of €30,000 (about US$40,572) within three 

months, and €1,500 (about US$2,028) for costs and expenses.55

Following the GC’s judgment, Spain immediately complied with the ruling and released 

the applicant.56 

52 Id.

53 Id. para. 131.

54 Id.

55 Id. paras. 137–139, 145. 

56 Spain Releases Eta Convict After European Court Ruling, BBC NEWS EUROPE (Oct. 22, 2013), 

http://www.bbc.co.uk/news/world-europe-24624913; see also Thousands Protest in Madrid Against a European 

Court Ruling that Led to Release of ETA Prisoner, EURONEWS (Oct. 27, 2013), http://www.euronews.com/2013/ 

10/27/thousands-protest-in-madrid-against-a-european-court-ruling-that-led-to-release-of-eta-prisoner/.

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