January 06, 2026
by Zelal Pelin Doğan
When the European Court of Human Rights (ECtHR) finds that a Convention right has been violated, what does that finding ultimately secure for the individual concerned? Does it restore the applicant, as far as possible, to the position they would have occupied absent the violation, or does it increasingly function as a formal acknowledgment whose practical consequences are left largely to domestic discretion? This question goes to the heart of the Convention system and to the Court’s self-understanding as a guarantor of human rights rather than a merely declaratory body.
The long and arduous legal process that formed the basis of the case of Otegi Mondragon and Others v. Spain (2025) provides a particularly revealing perspective for examining this tension. After the ECtHR held in 2018 that the applicants’ right to an impartial tribunal under Article 6 § 1 of the European Convention on Human Rights had been violated, Spain’s highest courts entered into a sharp institutional conflict over the appropriate domestic response. While there was agreement that a violation had occurred, there was deep disagreement as to whether—and how—it should be remedied. The Supreme Court (Tribunal Supremo) opted for annulment followed by retrial; the Constitutional Court (Tribunal Constitucional de España) rejected retrial because it was disproportionate, but also refused to annul the conviction entirely. The result was an unusual outcome: a criminal conviction acknowledged to have been imposed by a non-impartial tribunal remained formally valid.
When this resolution was subsequently challenged before the Strasbourg Court, the response in 2025 was strikingly reserved. Declaring the application inadmissible, the Court accepted the Constitutional Court’s approach as falling within the State’s margin of appreciation. This decision invites a broader inquiry into whether the ECtHR is gradually shifting from a model centred on effective redress toward one that prioritises subsidiarity and institutional deference, even in cases involving core fair-trial guarantees. By tracing the legal trajectory of the Otegi cases from the original criminal proceedings to the Court’s most recent decision, this blog post examines the implications of this evolution for the practical protection of human rights under the Convention and shares some concerns about this situation.
The background to the 2025 decision cannot be understood without reference to the ECtHR’s earlier judgment ofOtegi Mondragon and Others v. Spain (2018). The applicants, including Arnaldo Otegi, were convicted in the so-called Bateragune case for offences relating to alleged membership in and support for ETA. The proceedings were conducted before theAudiencia Nacional, Spain’s specialised criminal court. While the charges were serious, the central issue before the ECtHR was not the substance of the allegations, but the impartiality of the tribunal that adjudicated them.
A critical contextual element concerned the role of the presiding judge. Mr Otegi had previously been tried by the same judge in a separate case for praising terrorism. During that earlier trial, the judge had asked whether he condemned ETA and, upon his refusal to answer, remarked: “I knew you wouldn’t answer anyway.” The Spanish Supreme Court later held that this comment revealed a lack of impartiality and annulled the conviction, ordering a rehearing before a differently constituted panel. Despite this finding, the same judge subsequently presided over the Bateragune proceedings.
At the domestic level, the applicants’ objections based on judicial impartiality were rejected by narrow majorities. The Supreme Court dismissed the complaint by three votes to two, and the Constitutional Court followed suit by seven votes to five (see: STC 133/2014, de 22 de julio de 2014). Dissenting judges at both levels warned that the earlier finding of bias inevitably contaminated the subsequent proceedings.
Before the ECtHR, the case was assessed under the Court’s well-established twofold test for judicial impartiality. No evidence was found of subjective bias. The decisive issue was therefore objective impartiality—whether a reasonable observer could legitimately doubt the tribunal’s neutrality. The Court attached decisive weight to the fact that the Supreme Court itself had already found the judge to lack impartiality in an earlier case involving the same defendant and similar subject matter. Given that the charges in Bateragune again centred on alleged links to ETA, the appearance of bias was not confined to Mr Otegi but extended to all co-defendants, whose conduct was assessed jointly.
The Court rejected the argument that the judge’s lack of involvement as rapporteur mitigated the problem. Judicial deliberations are secret, and the influence of the presiding judge on the panel could not be excluded. The ECtHR therefore unanimously found a violation of Article 6 § 1, concluding that the applicants had been convicted by a court lacking in objective impartiality.
As to remedies, the Court did not award non-pecuniary damages. It noted that, in principle, the most appropriate form of redress would be the reopening of the proceedings or a retrial, but observed that all applicants had already served their sentences. Importantly, the Court did not impose any specific obligation on Spain to annul the convictions, thereby leaving room for domestic discretion in execution.
The 2018 judgment triggered a new phase of litigation within Spain. Relying on the ECtHR’s finding, the applicants sought revision of the domestic judgments under section 954 of the Criminal Procedure Act, which allows for review following a Convention violation. In December 2020, the Supreme Court annulled both its own 2012 judgment and the 2011 conviction of the Audiencia Nacional. However, it simultaneously ordered a retrial before a newly constituted court. According to the Supreme Court, mere annulment without retrial would leave the applicants’ guilt or innocence undetermined, undermining the logic of criminal justice.
The applicants challenged this decision before the Constitutional Court. In January 2024, the Court grantedan amparo appeal and annulled the Supreme Court’s retrial order (see: STC 9/2024, de 17 de enero de 2024). It reasoned that, in the particular circumstances of the case, reopening the proceedings would impose a disproportionate burden on the applicants, who had already fully served their sentences and had not sought a retrial as a remedy. Renewed proceedings would expose them to the risk of further prosecution without offering any tangible benefit. The Court further invoked the principles of legal certainty and ne bis in idem, concluding that retrial might be incompatible with effective judicial protection.
At the same time, the Constitutional Court declined to quash the conviction outright. It held that eliminating all prior judicial determinations would amount to a de facto acquittal, exceeding its constitutional role as a court of fundamental rights rather than a criminal tribunal. The result was a paradoxical outcome: the conviction remained formally valid and res judicata, while being expressly acknowledged as having been imposed in breach of Article 6.
This outcome exposed a profound institutional disagreement between Spain’s highest courts. The Supreme Court adopted a system-oriented perspective, treating retrial as the natural consequence of procedural nullity. The Constitutional Court, by contrast, prioritised proportionality, finality, and the avoidance of further harm to individuals whose rights had already been violated. This unresolved tension formed the immediate backdrop to the applicants’ second application to the ECtHR.
In their new application, lodged in 2024, the applicants challenged the Constitutional Court’s judgment. They argued that validating a conviction acknowledged to be the product of a non-impartial tribunal undermined the binding force of the ECtHR’s 2018 judgment and amounted to a renewed violation of Article 6 § 1. In their view, the domestic response reduced the earlier finding to a purely declaratory statement, devoid of effective remedial consequences.
In its 2025 decision, the ECtHR declared the application manifestly ill-founded. The Court recalled that the Convention does not guarantee a right to reopen proceedings or to quash final judgments. While retrial or reopening is described in the Court’s case-law as the most appropriate form of redress “in principle,” this formulation expressly allows for exceptions. The 2018 judgment had not imposed a binding obligation on Spain to annul specific domestic decisions.
The Court emphasised that the applicants’ complaint was directed exclusively against the Constitutional Court’s judgment, not against the Supreme Court’s earlier retrial order. It found that the Constitutional Court had addressed the core arguments raised in the amparo proceedings and that its interpretation of the effects of review could not be regarded as arbitrary. Particular weight was given to the fact that the applicants themselves had opposed retrial and had not sought compensation as an alternative remedy.
Invoking the margin of appreciation enjoyed by domestic authorities in executing Strasbourg judgments, the Court concluded that there was no indication that the Constitutional Court had distorted or misrepresented the substance of the 2018 judgment, nor that it had committed a manifest error amounting to a denial of justice. Questions concerning the adequacy of execution, the Court added, fell primarily within the remit of the Committee of Ministers under Article 46.
The 2025 decision in Otegi Mondragón and Others v. Spain exposes both a structural tension and an increasingly visible trend within the Convention system. While Article 46 obliges States to abide by the Court’s judgments, the Court has consistently held that the Convention does not impose a single mandatory model of redress. Although reopening or retrial is, in principle, the preferred response to criminal violations of Article 6, it is neither automatic nor unconditional.
This flexible approach is well established in the Court’s jurisprudence. In Moreira Ferreira v. Portugal (No. 2), the Grand Chamber confirmed that a finding of a violation does not in itself entail an obligation to reopen proceedings. In Guðmundur Andri Ástráðsson v. Iceland, the Court again emphasised that the consequences of a violation depend on context, including considerations of legal certainty and proportionality. Earlier cases such as Henryk Urban and Ryszard Urban v. Poland anticipated the reasoning later adopted in the 2025 decision, recognising that retrial may be inappropriate where it offers limited practical benefit or imposes a disproportionate burden.
Against this doctrinal background, the 2025 decision does not constitute a formal departure from the Court’s established case-law. Rather, the significance of the 2025 judgment lies in the Court’s restrained role in the second Otegi case, which invites closer reflection on the structural limits of the Convention system and on the Court’s increasingly deferential posture, shaped by subsidiarity, the margin of appreciation, and broader concerns of institutional balance.
The practical consequences of the Court’s cautious interpretation of Article 46 are clearly visible in this case. By leaving the resolution of the remedial dilemma to the discretion of the Constitutional Court, Strasbourg effectively accepted a situation in which a conviction delivered by a tribunal lacking in objective impartiality continued to retain legal validity. The violation was acknowledged, yet its effects were not removed. This outcome raises serious concerns regarding the normative weight of the right to a fair trial. Hearing before an impartial tribunal lies at the heart of Article 6 and, more broadly, the rule of law. Where a conviction tainted by objective bias is allowed to subsist—even at a symbolic level—the line between acknowledgment and redress becomes blurred. The individual theoretically proves their case, but cannot return to the position they would have been in had the violation not occurred, even at a minimum level.
Admittedly, the Court’s competence in matters of execution is strictly limited, and Article 46 does not confer a general power to order the reopening or quashing of domestic proceedings. Nonetheless, the Court’s reliance on subsidiarity and the margin of appreciation has tangible effects. It places primary responsibility for effective redress on domestic authorities, while at the same time insulating their remedial choices from Strasbourg`s substantive review. In cases involving Article 6 violations based on a lack of judicial impartiality, this approach is not neutral. It risks transforming the right to a fair trial from a guarantee of concrete legal protection into a largely declaratory entitlement, satisfied by the mere finding of a violation.
This risk is further amplified by the Court’s deferential review of constitutional adjudication. Since the entry into force of Protocol No. 15, subsidiarity has been formally entrenched as a guiding principle of Convention interpretation, increasingly operating as a mechanism that limits Strasbourg’s intervention, particularly at the execution stage. In Otegi, the Court confined its review to assessing whether the Constitutional Court’s reasoning was arbitrary, without engaging with the substantive adequacy of the remedy itself.
While this approach preserves institutional balance and respects domestic constitutional autonomy, it also carries significant risks. Excessive deference may weaken the Court’s ability to ensure that Convention rights are, in the Court`s words, “practical and effective, not theoretical and illusory”. Moreover, the emphasis placed on the applicants’ opposition to retrial risks shifting responsibility for effective redress onto individuals, making the State’s obligation to remedy a serious Article 6 violation dependent on the applicant’s procedural strategy rather than on the objective gravity of the breach.
The Otegi cases reveal the European Court of Human Rights’ active role in accepting cases at a critical juncture, but more importantly, its hesitant role in providing redress. Faced with a clear violation of a core fair-trial guarantee and a deeply divided domestic response, the Court opted for restraint, deferring to national authorities and accepting acknowledgment in place of full redress. This choice is doctrinally defensible within existing case-law, yet normatively unsettling.
Ultimately, the Otegi cases expose a structural ambiguity within the Convention system. Where violations are acknowledged without being remedied, the effectiveness of human rights protection risks being undermined. The Court faces the challenge of maintaining subsidiarity while preserving its ability to ensure meaningful redress, particularly in cases touching the core of procedural justice. The Otegi cases thus stand as a cautionary illustration of how the balance between deference and enforcement shapes not only the Court’s jurisprudence, but its role in the practical and effective protection of Convention rights.
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