ICCPR Case Digest




Submission: 2017.07.25

View Adopted: 2022.10.25

Jesús María Hermosilla Barrio v. Spain

Arbitrary detention is entitled to compensation

Substantive Issues
  • Arbitrary detention
  • Effective remedy
  • Equality before the law
Relevant Articles
  • Article 26
  • Article 5.2 (a) - OP1
  • Article 5.2 (b) - OP1
  • Article 9.1
  • Article 9.4
  • Article 9.5
Full Text


The author requested for an accumulation of the prison terms he was serving which domestic court partly granted. Thereafter, the author was released upon a finding that the sentence was carried out in its entirety seven months earlier. The author alleges violations of his rights under Article 9(1, 4, 5) and Article 26 on the ground that due to judicial error, he was deprived of his liberty longer than was due and he is thus entitled to compensation. The author filed a petition before the ECtHR which was deemed inadmissible prior to submitting the communication herein.


The communication is admissible under Article 5(2)(a) of the Optional Protocol because the ECtHR did not proceed with the merits of the case. The allegations falling within Article 26 was not sufficiently substantiated. However, those alleged under Article 9(1, 4, 5), due to the failure of the State party to contest that the author sought reparation, are admissible.


The State party violated the rights of the authors under article 9. The unauthorized confinement of inmates beyond the term of their sentence is both arbitrary and unlawful. The concept of arbitrariness should not be equated with 'contrary to the law' but should be interpreted more broadly to include elements such as impropriety, injustice, and unpredictability with due regard to procedural guarantees.  The burden of establishing the legal basis and the reasonableness, necessity, and proportionality of the detention rests with the authorities responsible for the detention. The State party failed in this regard. The Committee considers that the detention herein is arbitrary within the meaning of article 9(1), thus, the author is entitled to obtain redress as guaranteed jointly with article 9(1,4).


The State party is obligated, inter alia, to:

  • (a) grant the author adequate reparation for the violation of article 9, paragraph 5, of the Covenant;
  • (b) give the author access to a compensation mechanism to repair the excessive deprivation of liberty to which he was subjected; and
  • (c) adopt all necessary measures to prevent similar violations from occurring in the future, among other ways by reviewing its legislation, its regulations and their national practices so that persons who have been illegally or arbitrarily detained or deprived of their liberty can seek adequate compensation, in accordance with the obligation established in the Covenant.


Deadline: 25 April 2022

By: Maricon Torres Lorenzo

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