Prisoners entitled to have their date of release determined by the law in force at the time of sentencing

Del Rio Prada v Spain [2013] ECHR 307, Application no. 42750/09 (21 October 2013)


The Grand Chamber of the European Court of Human Rights held that the extension of the final release date of a person convicted of terrorist offences, on the basis of a new approach adopted by the Supreme Court of Spain after she had been sentenced, amounted to punishment without legal basis (article 7) and a violation of her right to liberty (article 5).


Ms Ines del Rio Prada (applicant) was a member of the militant Basque separatist group, ETA, and was found guilty (over the course of eight separate sets of criminal proceedings occurring between December 1988 and May 2000) of 23 murders, 57 attempted murders and other similar offences committed between 1982 and 1987. She was sentenced to a period of imprisonment totalling over 3,000 years if served concurrently. 

However, article 70.2 of the 1973 Criminal Code, which was in force at the time the offences were committed, provided that the maximum term of imprisonment for a single set of offences was limited to 30 years. Due to the legal and chronological links between the applicant's offences, the Audiencia Nacional (National Court) made a decision to group the offences together and apply article 70.2 reducing the applicant’s sentence to 30 years. Her date of release was therefore fixed at 27 June 2017.

The applicant's sentence was further reduced because she undertook study and voluntary work while in prison in accordance with article 100 of the 1973 Criminal Code (which, although replaced, applied through the operation of transitional provisions). 

Accordingly, the applicant was granted a total of 3,282 days' remission of her sentence in a series of decisions between 1993 and 2004 by the judges responsible for the execution of sentences. Those remissions were not subject to any appeal. On 24 April 2008, the prison authorities proposed to the Audiencia Nacional that the applicant be released on 2 July 2008.

The Audiencia Nacional, however, rejected the prison authorities' proposal to release the applicant after having served only 21 years of her 30 year term. It did so on the basis of a new precedent set by the Supreme Court approximately two years earlier, in 2006, which became known as the “Parot doctrine”. In essence, the Parot doctrine represented a departure from previous case law in that any reduction of sentence may be applied to a prisoner's cumulative sentences for multiple offences (in the applicant's case, the original 3,000 year sentence) rather than the maximum 30-year sentence.

The application of the Parot doctrine to the applicant's situation meant that the 3,282 days' remission previously granted had no meaningful effect and, instead of being released from prison on 2 July 2008, her date of release was set again for 27 June 2017.


The applicant submitted that the retroactive application of the Parot doctrine – a new approach adopted by the Supreme Court after her conviction – had increased the length of her imprisonment by almost 9 years, by negating the effect of remissions to which she was entitled at the date of her conviction. She argued that since 3 July 2008, her continued detention had been neither “lawful” nor “in accordance with a procedure prescribed by law” as required by article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. She also alleged a breach of article 7 of the European Convention, which prohibits the imposition of a “heavier penalty ... than the one that was applicable at the time the criminal offence was committed”. 

The State argued that the new method of applying remissions of sentence on the basis of the Parot doctrine was merely directed at the “manner of execution” of the applicant’s penalty, rather than a redefinition of its “scope”.


The Grand Chamber found that, at the time the Audiencia Nacional had fixed the applicant’s sentences to a maximum prison term of 30 years, the law was sufficiently precise for the applicant to calculate that the scope of her penalty was to be a maximum term of 30 years, from which any remissions of sentence for work done in detention would be deducted.

Article 7 of the European Convention specifically provides that a person should not be subjected to "a heavier penalty … than the one that was applicable at the time the criminal offence was committed." In this case, the Grand Chamber rejected the technical argument put forward by the State, that the application of the Parot doctrine merely changed the "manner of execution" of the applicant's sentence. On the contrary, the Grand Chamber found that the applicant had, in effect, been subjected to a more onerous period of imprisonment than the sentence validly determined by a competent court. Thus, article 7 was breached. 

In relation to article 5.1, the Grand Chamber concluded it was not reasonably foreseeable at the time the applicant was sentenced that the Supreme Court would depart from its previous approach of applying remissions for work done in detention to the 30 year sentence term. The Grand Chamber accordingly determined that since 3 July 2008, the applicant's continued detention was not supported in law. It therefore constituted a breach of the applicant's right to liberty under article 5.1 of the Convention.

The Grand Chamber ordered that the applicant be immediately released and that the kingdom of Spain pay her €31,500 in non-pecuniary damages and costs.


The decision of the Grand Chamber was almost immediately followed by more than 50 requests to review the imprisonment of other members of ETA to whom the Parot doctrine has been applied to negate the effect of remissions awarded for good behaviour while in detention. In light of this decision, it seems unlikely that the Supreme Court will have any option other than to reinstate the early release dates for any prisoner convicted under the 1973 Criminal Code to whom the Parot doctrine has since been applied.

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Edward Smith is a lawyer with Lander & Rogers