PROCEDURE

The case was referred to the Court first by the Government of the Kingdom of Spain (“the Government“) and then by the European Commission of Human Rights (“the Commission“) on 20 and 21 February 1992, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention“). It originated in an application (no. 12952/87) against Spain lodged with the Commission under Article 25 (art. 25) by six Spanish nationals, Mr José María, Mr Zoilo, Mr Rafael, Mr Isidoro, Mr Alfonso and Mrs María Dolores Ruiz-Mateos, on 5 May 1987. The Government’s application referred to Article 48 (art. 48); the Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Spain recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the application and the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para. 1 (art. 6-1).

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 30). The President of the Court gave the lawyers leave to use the Spanish language (Rule 27 para. 3).

The Chamber to be constituted included ex officio Mr J. M. Morenilla, the elected judge of Spanish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 27 February 1992, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr C. Russo, Mr N. Valticos, Mrs E. Palm, Mr R. Pekkanen, Mr F. Bigi and Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). By a letter of 26 February to the President, Mr Morenilla had stated that he wished to withdraw pursuant to Rule 24 para. 2, because he had represented the Government before the Commission as Agent. On 6 April the Government notified the Registrar of the appointment of Mr Rafael de Mendizábal Allende, judge at the Supreme Court, as ad hoc judge (Article 43 of the Convention and Rule 23) (art. 43). On 20 October the Registrar received a letter from the latter stating that he wished to withdraw “for [a] special reason“ (Rule 24 para. 3), following his appointment to the Constitutional Court. On 20 November the Government appointed a new ad hoc judge, Mr Dámaso Ruiz-Jarabo Colomer, a judge who is on secondment as head of the private office of the President of the General Council of the Judiciary.

Mr Ryssdal had assumed the office of President of the Chamber (Rule 21 para. 5) and had, in the meantime, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the applicants on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the President’s orders and directives, the Registrar received the Government’s memorial on 6 July 1992 and the applicants’ memorial on 7 July. On 8 September the Secretary to the Commission informed him that the Delegate would submit oral observations.

On 10 April and 30 June 1992 respectively the President had authorised, under Rule 37 para. 2, the Government of the Federal Republic of Germany and the Government of the Portuguese Republic to submit written observations on the applicability of Article 6 para. 1 (art. 6-1) of the Convention to constitutional courts. These observations reached the registry on 10 June and 27 August.

On 23 November 1992, the date initially fixed for the hearing - which had had to be postponed because of Mr de Mendizábal Allende’s withdrawal -, the Chamber decided under Rule 51 to relinquish jurisdiction forthwith in favour of the plenary Court.

On 27 November 1992 the President directed that the oral proceedings should open on 27 January 1993. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. Mr R. Bernhardt, the Vice-President of the Court, had replaced Mr Ryssdal as President, the latter being unable to take part in the further consideration of the case (Rule 9). The Court had held a preparatory meeting before the hearing. There appeared before the Court:

for the Government (whose Agent had been authorised by the President to use the Spanish language - Rule 27 para. 2) Mr J. Borrego Borrego, Head of the Legal Department for Human Rights, Ministry of Justice, Agent, Mr J.L. Fuertes Suárez, Ministry of Justice, Counsel;

for the Commission Mr M.P. Pellonpää, Delegate;

for the applicants Mr M. García Montes, abogado, Mr S. Sánchez Pardo, abogado, Mr F. Ruhlmann, avocat, Counsel. The Court heard addresses by Mr Borrego Borrego for the Government, by Mr Pellonpää for the Commission and by Mr García Montes, Mr Sánchez Pardo and Mr Ruhlmann for the applicants, as well as their replies to its questions. The lawyers for the applicants and the Government’s representatives produced various documents.

AS TO THE FACTS

Mr José María Ruiz-Mateos, a businessman, Mr Zoilo Ruiz-Mateos, Mr Rafael Ruiz-Mateos, Mr Isidoro Ruiz-Mateos, Mr Alfonso Ruiz-Mateos and Mrs María Dolores Ruiz-Mateos are brothers and sister. They are all of Spanish nationality. In 1983 they held 100% of the shares in RUMASA S.A., the parent company of the RUMASA group, which comprised several hundred undertakings. RUMASA S.A.’s holding in these undertakings varied from one to the other.

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. The expropriation of the RUMASA group

By a legislative decree of 23 February 1983 the Government ordered the expropriation in the public interest of all the shares in the companies comprising the RUMASA group, including those of the parent company (Article 1). The State, which was the beneficiary of this measure, was to take immediate possession of the expropriated property through the intermediary of the Directorate General for National Assets (Article 2). The legislative decree was confirmed on 2 March 1983 by the Chamber of Deputies. It gave rise to an appeal to the Constitutional Court (recurso de inconstitucionalidad, Article 161 para. 1 (a) of the Constitution, see paragraph 26 below), as a group of deputies contested its constitutional validity. The Constitutional Court dismissed the deputies’ appeal by a judgment of 2 December 1983, adopted with the President’s casting vote; in a dissenting opinion, six members of the court expressed the view that the expropriation procedure followed was contrary to the Constitution.

In the meantime Law no. 7/1983 of 29 June 1983, published a day later in the Official State Gazette (Boletín Oficial del Estado), had replaced the legislative decree. Articles 1 and 2 thereof ordered the immediate expropriation and transfer of possession of the companies concerned in similar terms to those of the legislative decree (see paragraph 9 above). The aim of these measures was to protect the public interest because, in order to finance the group’s companies, its banks had taken risks considered to be disproportionate in relation to their solvency, thereby jeopardising “the stability of the banking system and the interests of the depositors, employees and third parties“.

B. The action for the restitution of the expropriated property

1. The proceedings at first instance

Between the publication of the legislative decree and that of Law no. 7/1983, Mr José María Ruiz-Mateos had, on 8 April 1983, both on his own behalf and on that of the other applicants and RUMASA S.A., instituted summary proceedings for the restitution of the expropriated property (interdicto de recobrar). On 11 April the Madrid First-Instance Court (juzgado de primera instancia) no. 18 - composed of a single judge - declared the application inadmissible on procedural grounds. The first applicant had failed to adduce evidence establishing that he had been divested of the assets as alleged and showing that prior to the impugned measure the assets in question had been in his possession.

On 9 May 1983 Mr José María Ruiz-Mateos lodged a further application concerning 50% of the RUMASA S.A. shares. The other five applicants followed suit on 27 May with regard to the remaining shares, each claiming 10%. The two cases were allotted respectively to Madrid First-Instance Courts nos. 18, which reopened the file, and 21.

The Counsel for the State (Abogado del Estado), representing the Government, obtained, on 4 and 5 July respectively, a stay of three months in each of the two sets of proceedings to enable him to consult his superiors. The applicants’ appeals against those decisions were dismissed on 16 and 18 July. On 21 September the Counsel for the State applied for the joinder of the two sets of proceedings. Court no. 18 acceded to this request on 22 November, having received the consent of Mr José María Ruiz-Mateos on 18 November. On 27 March 1984 Court no. 21 ordered that the file of the proceedings before it be transmitted to Court no. 18, the other five applicants having given their agreement on 23 March. Court no. 18 received the file on 9 May.

On 21 March 1984 the first applicant had requested Court no. 18 to refer to the Constitutional Court a question on the conformity of Articles 1 and 2 of Law no. 7/1983 (see paragraph 10 above) with Articles 14, 24 and 33 of the Constitution (cuestión de inconstitucionalidad, see paragraphs 25, 26 and 27 below). The court held hearings on 18 June and 17 September 1984. On 19 September the judge invited the parties to submit observations on this matter within ten days (Article 35 of Institutional Law no. 2/1979 on the Constitutional Court, “Institutional Law no. 2/1979“, see paragraph 27 below). On 29 September the Counsel for the State replied that the question was not material to summary proceedings for the examination of an action to recover possession. On 1 October the Attorney General’s department also expressed its opposition to the motion. On the same date in support of their claims the applicants submitted two memorials, respectively eighty-five and thirty-seven pages long.

By a decision (auto) of 5 October 1984 Court no. 18 referred to the Constitutional Court the question of the conformity of the above-mentioned articles of Law no. 7/1983 with Article 24 para. 1 of the Constitution inasmuch as it had not been open to the applicants either to invoke in the courts their right of property in respect of the assets expropriated by legislative action or to challenge the necessity of seizing them. In the opinion of the first-instance court, the decision on the merits of the dispute depended on the validity of the provisions in issue.

The Constitutional Court found the question admissible on 17 October 1984; it then gave notice of the question to the Chamber of Deputies, the Senate, the Government and the Attorney General (Fiscal General del Estado), who were each entitled to file observations within the same fifteen-day period (Article 37 para. 2 of Institutional Law no. 2/1979, see paragraph 27 below). The Constitutional Court received the observations of the Attorney General’s department and of the Counsel for the State on 5 and 6 November respectively; on 12 November the Speaker of the Chamber of Deputies indicated that the Chamber did not intend to submit observations.

On 27 January 1986 Mr José María Ruiz-Mateos complained of the delay in the proceedings; he relied in this connection on Article 24 para. 2 of the Constitution (see paragraph 25 below) and Article 6 para. 1 of the Convention (art. 6-1). The Constitutional Court joined the application (recurso de queja) to the file on 30 January, but did not pursue the matter because the applicant lacked locus standi. On 7 February he again applied to the Constitutional Court, alleging that the decision of 30 January infringed Article 24 of the Constitution. He also maintained that he had locus standi in respect of the constitutional proceedings by virtue of his status as a party in the main proceedings. On 21 February the Constitutional Court confirmed its earlier decision.

Following the election to the Constitutional Court of six new members, on 26 March 1986 Mr José María Ruiz-Mateos challenged two of these judges for lack of impartiality. He claimed that one of them was well-known to be a friend of the Prime Minister and the other had already been involved in the case as adviser to the Minister of Justice and had, among other things, participated in preparing the speech to Parliament on the expropriation of RUMASA. On 10 April the Constitutional Court dismissed the challenge on the ground that the applicant lacked locus standi.

By a judgment of 19 December 1986, it held that Articles 1 and 2 of Law no. 7/1983 were compatible with Article 24 of the Constitution. It found that legislative expropriation - even by means of a special statute concerning a specific case - was not contrary to the Constitution. Although this admittedly meant that the persons concerned suffered restrictions on the judicial protection of their rights, as they could not challenge in the courts the necessity of the seizure of their assets, it was always open to them to contest the measure in the administrative courts and to ask those courts to refer a question to the Constitutional Court on the constitutional conformity of such action. In addition an appeal (amparo), founded on the right to equality before the law, lay against the final decision of the administrative courts. Finally, the law in issue had in no way deprived the persons concerned of their right to appropriate compensation, a right which they could assert before the Provincial Expropriation Board (jurado provincial d’expropiación) - the competent administrative body -, and then in the administrative courts. Two judges expressed the view, in a dissenting opinion, that the expropriation procedure used had deprived the applicants of their right of access to the courts.

This judgment was communicated to Court no. 18 on 22 December 1986. The following day that court dismissed the action for restitution.

2. The appeal proceedings

On 27 December 1986 the applicants appealed to the Audiencia provincial of Madrid, which declared the appeal admissible on 5 February 1987. The examination of the appeal began on 26 June 1988. The court communicated the file to each of the parties in turn, each party having ten days to study it. The hearing was initially set down for 21 October, but was adjourned at the request of the applicants’ lawyer, who was unable to attend. As soon as the hearing opened on 28 November, the applicants sought a stay of the proceedings until the European Commission and Court of Human Rights had had an opportunity to rule on their application to Strasbourg. In the alternative, they requested the Audiencia provincial to refer to the Constitutional Court a new question concerning the compatibility of Articles 1 and 2 of Law no. 7/1983 with Articles 14 and 33 para. 3 of the Constitution (see paragraph 25 below). The court ordered an adjournment so as to allow the applicants to submit documents in support of their first request. On 19 December 1988 they supplied a translation of the correspondence from the Secretariat of the Commission. After a further hearing on 13 February 1989, the court refused to stay the proceedings. On 7 July 1989 it overruled the applicants’ objection to this decision.

On 14 February 1989 it had invited the parties and the Attorney General’s department to give their views on whether the above-mentioned question as to constitutional conformity should be submitted to the Constitutional Court (Article 35 para. 2 of Institutional Law no. 2/1979, see paragraphs 21 above and 27 below). After having received their comments, the Audiencia provincial referred the question to the Constitutional Court on 9 July 1989. The latter court declared it admissible on 31 October 1989, then communicated it to the institutions of the State listed in Article 37 para. 2 of Institutional Law no. 2/1979 (see paragraph 27 below). The Speaker of the Chamber of Deputies replied on 17 November that the Chamber did not intend to submit observations; on the same day and the following day respectively, Counsel for the State and the Attorney General’s department filed their submissions.

By a judgment of 15 January 1991 the Constitutional Court found the contested articles of Law no. 7/1983 to be compatible with Articles 14 and 33 para. 3 of the Constitution. Two judges expressed a dissenting opinion.

The Audiencia provincial was notified of this on 25 January 1991 and set down a hearing for 22 February. On that occasion the applicants made a further application for the proceedings to be stayed. The court dismissed their appeal by a judgment of 25 February. On 6 March the applicants lodged an application for the interpretation of that judgment; their application was dismissed on 11 March 1991.

II. THE APPLICABLE DOMESTIC LAW

1. The Constitution

The relevant Articles of the 1978 Constitution are worded as follows: Article 14 “Spaniards shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.“ Article 24 “1. Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his legitimate rights and interests, and in no case may he be denied that protection.

Likewise, all persons have the right of access to the ordinary courts as 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 pertinent to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to the presumption of innocence. ...“ Article 33 “1. Private property rights ... are recognised.

...

No-one may be deprived of his property and rights, except on justified grounds of public interest against proper compensation and in accordance with the provisions of the law.“

The jurisdiction of the Constitutional Court is defined as follows: Article 161 para. 1 “The Constitutional Court has jurisdiction over the whole of Spanish territory and is competent to hear: (a) appeals against alleged unconstitutionality of laws and regulations having the force of law ...; (b) individual appeals for protection (recurso de amparo) against violation of the rights and liberties referred to in Article 53 para. 2 of the Constitution, in the circumstances and manner laid down by law; (c) conflicts of jurisdiction between the State and the Autonomous Communities or between the Autonomous Communities themselves. ...“ Only the rights guaranteed under Articles 14 to 29 of the Constitution may be the subject of an amparo appeal, which is not therefore available in respect of the right to property secured under Article 33. Article 163 “If a judicial body considers, in the course of proceedings, that a regulation with the status of law which is applicable in those proceedings and upon the validity of which the judgment depends may be contrary to the Constitution, it may bring the matter before the Constitutional Court in the circumstances, manner and subject to the consequences to be laid down by law; such consequences shall in no case be suspensive.“ Article 164 “1. The judgments of the Constitutional Court shall be published in the Official State Gazette, together with any dissenting opinions. They have the force of res judicata with effect from the day following their publication, and no appeal may be brought against them. Those which declare the unconstitutionality of a law or of a rule with the force of law, and all those which do not merely recognise an individual right, shall be fully binding on all persons.

Unless the judgment rules otherwise, that part of the law not affected by unconstitutionality shall remain in force.“

2. Institutional Law no. 2/1979 on the Constitutional Court

Chapter III of the Institutional Law on the Constitutional Court is entitled “On questions of constitutionality submitted by judges and courts“ and is worded as follows: Article 35 “1. When a judge or court, ex proprio motu or at the request of a party, decides that a provision having the status of law which applies in the case in issue and on the validity of which his or its decision depends might be contrary to the Constitution, he or it shall refer the matter to the Constitutional Court, in accordance with the provisions of the present law.

Judges or courts shall not refer such a question until the case is ready to be tried and they must do so within the time-limits laid down for ruling on the case. They must specify which law or provision having the status of law is alleged to be unconstitutional and which article of the Constitution is considered to have been breached. They must also state the precise reasons why the outcome of the proceedings depends on the validity of the contested provision. Before taking a final decision on whether to refer the question to the Constitutional Court, the judge or court must first hear the views of the parties to the proceedings and the Attorney General’s department in order to give them the opportunity, within a single and non-extendable ten-day time-limit, to submit any observations they may wish to make concerning the pertinence of the question. The judge shall then announce his decision, without taking any further steps, within three days. No appeal shall lie against this decision. However, the question as to constitutionality may be raised again in subsequent proceedings until the judgment has become final.“ Article 36 “A question as to constitutionality referred to the Constitutional Court by a judge or court must be accompanied by a certified copy of the main file and, in so far as there are any, the observations provided for in the preceding article.“ Article 37 “1. On receipt of the file the Constitutional Court shall follow the procedure laid down in paragraph 2 of the present article. However, the Court may declare the question inadmissible, in a decision stating its reasons, after hearing only the Attorney General, when the procedural requirements are not satisfied or when the question is manifestly ill-founded.

The Constitutional Court shall give notice of the question to the Chamber of Deputies and the Senate via their respective Speakers, to the Attorney General and via the Ministry of Justice to the Government. If the question raises an issue concerning a law or another provision having the status of law adopted by an Autonomous Community, notice thereof shall also be given to its legislative and executive authorities. All these authorities may appear before the court and submit observations on the question referred within a single and non-extendable fifteen-day time-limit. When this time-limit has expired, the court shall give judgment within fifteen days, except when it considers a longer period, which may not exceed thirty days, to be necessary, in which case it must state the reasons for its decision.“ PROCEEDINGS BEFORE THE COMMISSION

The applicants lodged their application with the Commission on 5 May 1987. They alleged in the first place that their case had not been given a fair hearing conducted within a reasonable time by an impartial tribunal (Article 6 para. 1 of the Convention) (art. 6-1). They claimed in addition that they had been deprived of their right of access to the courts to challenge the public interest justification for the expropriation and the necessity of the immediate transfer of their property (Articles 6 para. 1 and 13 of the Convention) (art. 6-1, art. 13). Finally, they complained of discrimination in relation to other Spanish citizens in that the latter were subject to the ordinary law on expropriations and could therefore institute proceedings in the administrative courts (Article 14 read in conjunction with Articles 6 para. 1 and 13) (art. 14+6-1, art. 14+13).

On 6 November 1990 the Commission declared the first complaint admissible and the remainder of the application (no. 12952/87) inadmissible. In its report of 14 January 1992 (made under Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 6 para. 1 (art. 6-1) inasmuch as (a) the applicants had not been given a fair hearing (thirteen votes to two) and (b) the relevant proceedings had not been conducted within a reasonable time (eleven votes to four). The full text of the Commission’s opinion and of the three separate opinions contained in the report is reproduced as an annex to this judgment.