Reservations and Declarations for Treaty No.005 - Convention for the Protection of Human Rights and Fundamental Freedoms

Nature of declaration : Reservations
Status as of 29/03/2017

Spain

Reservation made at the time of deposit the instrument of ratification, on 4 October 1979 - Or. Sp.

In pursuance of Article 64 of the Convention [Article 57 since the entry into force of the Protocol No 11], Spain makes reservations in respect of the application of the following provisions:

Articles 5 and 6, insofar as they may be incompatible with the disciplinary provisions concerning the Armed Forces, as they appear in Book 2, Part XV and Book 3, Part XXIV of the Code of Military Justice.

Brief statement of the relevant provisions:

The Code of Military Justice provides that the punishment of minor offences may be ordered directly by an offender's official superior, after having elucidated the facts. The punishment of serious offences is subject to an investigation of a judicial character, in the course of which the accused must be given a hearing. The penalties and the power to impose them are defined by law. In any case, the accused can appeal against the punishment to his immediate superior and so on, up to the Head of State.
Period covered: 04/10/1979 - 28/05/1986
Articles concerned : 5, 6

Reservation made at the time of deposit the instrument of ratification, on 4 October 1979 - Or. Sp.

In pursuance of Article 64 of the Convention [Article 57 since the entry into force of the Protocol No 11], Spain makes reservations in respect of the application of the following provisions:

Article 11, insofar as it may be incompatible with Articles 28 and 127 of the Spanish Constitution.

Brief statement of the relevant provisions:

Article 28 of the Constitution recognises the right to organise, but provides that legislation may restrict the exercise of this right or make it subject to exception in the case of the armed forces or other corps subject to military discipline and shall regulate the manner of its exercise in the case of civil servants.

Article 127, paragraph 1, specifies that serving judges, law officers and prosecutors may not belong to either political parties or trade unions and provides that legislation shall lay down the system and modalities as to the professional association of these groups.
Period covered: 04/10/1979 -
Articles concerned : 11

Declaration contained in a letter from the Permanent Representative of Spain, dated 28 May 1986

At the time of deposit of the instrument of ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms, on 29 September 1979, Spain formulated a reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of the Code of Military Justice - Chapter XV of Part II and Chapter XXIV of Part III - concerning the disciplinary regime of the Armed Forces.

I have the honour to inform you, for communication to the Parties to the Convention, that these provisions have been replaced by Basic Law 12/1985 of 27 November - Chapter II of Part III and Chapters II, III and IV of Part IV - concerning the disciplinary regime of the Armed Forces, which will enter into force on 1 June 1986.

The new legislation amends the former provisions by reducing the duration of the sanctions imposing deprivation of liberty which can be applied without judicial intervention by increasing the guarantees of persons during the preliminary investigation.

Spain confirms nevertheless its reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of Basis Law 12/1985 of 27 November - Chapter II of Part III and Chapters II, III and IV of Part IV - concerning the disciplinary regime of the Armed Forces, which will enter into force on 1 June 1986.
Period covered: 28/05/1986 - 23/05/2007
Articles concerned : 5, 6

Updating of a reservation transmitted by the Ministry of Foreign Affairs of Spain and registered at the Secretariat General on 23 May 2007– Or. Engl./Fr.

Spain, in accordance with Article 64 of the Convention [Article 57 since the entry into force of the Protocol No 11], reserves itself the implementation of Articles 5 and 6 insofar as they could be incompatible with the Organic Law 8/1998, of 2 December, Chapters II and III of Tile III and Chapters I, II, III, IV and V of Title IV of the Disciplinary Regime of the Army Forces, which came into force on 3 February 1999.
Period covered: 23/05/2007 - 20/02/2015
Articles concerned : 5, 6

Declaration up-dating a reservation contained in a Note verbale from the Permanent Representation of Spain, dated 19 February 2015, registered at the Secretariat General on 20 February 2015 – Or. Fr.

The Organic Law 8/1998 of 2 december, of the Disciplinary Regime of the Army Forces has been substituted by the Organic Law 8/2014, of 4 December, of the Disciplinary Regime of the Army Forces, enacted on 4 December 2014 and which will enter into force on 5 March 2015. This Organic Law 8/2014 repeals the Organic Law 8/1998, reduces the maximum limit of the duration of the sanctions imposing deprivation of liberty for minor or serious offences, as well as the one of the preventive custody, and maintains the maximum limit of sixty days for the duration of the sanctions imposing deprivation of liberty for very serious offences, which can be imposed without judicial intervention. Regarding procedures, the new Organic Law progresses in the recognition of personal garanties and rights.

The Kingdom of Spain maintains and up-dates its reservation, which reads as follows:

“Spain, in accordance with Article 64 of the Convention [currently Article 57], reserves itself the implementation of Articles 5 and 6 insofar as they could be incompatible with the Organic Law 8/2014, of 4 December (Chapter II of Title I, Title II, Title III, Chapter I of Title IV and Additional Provisions fourth and fifth), of the Disciplinary Regime of the Army Forces, enacted on 4 December 2014 and which will enter into force on 5 March 2015.”

[Note by the Secretariat : The texts of the reservation and its former updatings are available here : Complete chronology.]
Period covered: 20/02/2015 -
Articles concerned : 5, 57, 6


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