CCPR/C/143/D/3226/2018

GE.25-05539 (E) 210525 210525

Human Rights Committee

Decision adopted by the Committee under article 5 (4) of the

Optional Protocol, concerning communication

No. 3226/2018*, **

Communication submitted by:

P.B.P. (represented by counsel, Diego Fernández

Fernández)

Alleged victim:

The author

State Party:

Spain

Date of communication:

21 June 2018 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State Party on 5 December 2018 (not issued

in document form)

Date of adoption of decision:

25 March 2025

Subject matter:

Application for a special injury compensation

Procedural issues:

Same matter examined under another procedure

of international investigation or settlement;

substantiation of claims; ratione materiae

Substantive issues:

Discrimination; equality before courts and

tribunals; fair trial; national/military service

Articles of the Covenant:

14 and 26

Articles of the Optional Protocol:

2, 3 and 5 (2) (a)

1.

The author of the communication is P.B.P., a national of Spain born in 1970. He

claims that the State Party has violated his rights under articles 14 and 26 of the Covenant.

The Optional Protocol entered into force for the State Party on 25 April 1985. The author is

represented by counsel.

Facts as submitted by the author

2.1

On 1 May 1987, the author joined the armed forces. From 5 October 2006 to 1 March

2007, he held the rank of sergeant and served as a helicopter mechanic with the International

* Adopted by the Committee at its 143rd session (3–28 March 2025).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Mahjoub El Haiba, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye,

Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Teraya Koji, Hélène

Tigroudja and Imeru Tamerat Yigezu. Pursuant to rule 108 of the Committee’s rules of procedure,

Carlos Ramón Fernández Liesa did not participate in the examination of the communication.

United Nations

CCPR/C/143/D/3226/2018

International Covenant on

Civil and Political Rights

Distr.: General

22 April 2025

English

Original: Spanish

CCPR/C/143/D/3226/2018

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Security Assistance Force, a multinational security mission in Afghanistan. On 30 January

2007, the author was caught up in an attack by an Al-Qaida suicide bomber while at the

military base in Herat. In the attack, 10 Afghan military personnel and two civilians were

killed and the author suffered immediate hearing loss, resulting in post-traumatic tinnitus

with a mild bilateral neurosensory hearing impairment.

2.2

At the end of 2008, the author was assigned to another international mission at the

military base in Herat. On 15 or 16 November 2008, he was the victim of another terrorist

attack while near the barracks. In the attack, an Al-Qaida suicide bomber detonated a car

bomb. The shock wave and shrapnel hit the lavatories and dormitories, injuring several

United States military personnel; the bomber was killed. The author suffered no physical

injuries but was left in a state of shock.

2.3

At an unspecified time, an administrative procedure was initiated to assess the

author’s physical and psychological aptitude and thereby determine his ability to remain in

active service. Under the procedure, Expert Medical Board No. 21 of the General Defence

Hospital of Zaragoza issued a report stating that the author suffered from mixed

anxiety-depressive disorder in relation to the events he had experienced during his missions

abroad. In addition, the Expert Psychiatric Board of the General Inspectorate of Health in

Madrid issued a report establishing a diagnosis of delayed onset post-traumatic stress disorder

caused by psychological trauma compatible with the author’s statements (such as the

experiences stemming from repeated exposure to life-threatening situations in the course of

his professional activities).

2.4

On 11 December 2012, the Ministry of Defence issued an administrative decision in

which the author was declared to be in inadequate physical and psychological condition for

service and unable to perform his duties. The Ministry of Defence took into account the

medical diagnoses of mixed anxiety-depressive disorder and delayed onset post-traumatic

stress disorder and established a connection between the disorders and his experiences

triggered by repeated exposure to life-threatening situations in the course of his professional

activities.

2.5

On 9 April 2014, the author requested the Ministry of Defence to declare his

permanent unfitness for service1 (already recognized in the decision of 11 December 2012 as

stemming from his service) as also stemming from a terrorist act. In a decision of 5 June

2014, the Ministry denied the request.

2.6

In response, the author lodged an administrative appeal with the High Court of Justice

of La Rioja on 5 November 2014. He requested that the administrative decision of the

Ministry of Defence of 5 June 2014 be annulled and that the injuries which had led to the

declaration of permanent unfitness for service be found to have been caused by a terrorist act.

The author was of the view that he should be recognized as a victim of terrorism, for the

purposes of Act No. 29/2011 of 22 September 2011 on the Recognition and Comprehensive

Protection of Victims of Terrorism, as he had suffered mental harm as a result of a terrorist

attack while he was on a peacekeeping mission abroad.

2.7

On 17 September 2015, in judgment No. 229/2015, the Administrative Chamber of

the High Court of Justice of La Rioja dismissed the appeal. In relation to the 2007 claims, the

Court considered that it had not been proved that the author’s permanent unfitness had been

caused by a terrorist attack.

2.8

On 23 October 2015, the author applied for an annulment of proceedings, claiming

that judgment No. 229/2015 violated his constitutional right to effective judicial protection

and equality. On 17 December 2015, the High Court of Justice of La Rioja annulled judgment

No. 229/2015 on the grounds that the Administrative Chamber of the High Court of Justice

of La Rioja had examined the connection between the author’s disorder and the 2007 attack

but not its connection with the 2008 attack.

2.9

On 21 January 2016, the Administrative Chamber of the High Court of Justice of La

Rioja again dismissed the author’s appeal in judgment No. 16/2016. Regarding the claims

1 The term used in national law is “inutilidad” (uselessness).

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relating to the events of 2007 and 2008, the High Court found that it had not been proved that

the author’s permanent unfitness had been caused by a terrorist attack.

2.10

On 22 June 2016, the Constitutional Court declared inadmissible the application for

amparo filed by the author concerning the alleged violation of his constitutional right to

effective judicial protection and equality. In its reasoning, the Constitutional Court cited the

manifest absence of a violation of a fundamental right covered by that remedy.

2.11

On 11 October 2016, the author filed an application regarding this same matter with

the European Court of Human Rights, invoking articles 6 and 14 of the Convention for the

Protection of Human Rights and Fundamental Freedoms, on the rights to a fair trial and to

non-discrimination. On 24 November 2016, the European Court, in a single-judge decision,

declared the application inadmissible on the grounds that the admissibility conditions set

forth in articles 34 and 35 of the Convention had not been met.2

Complaint

3.1

The author claims that, by denying his application for special compensation for mental

harm suffered as a consequence of terrorist acts, the State Party has violated his rights under

articles 14 and 26 of the Covenant.

3.2

Regarding article 14 of the Covenant, the dismissal of the administrative appeal filed

by the author against the decision of the Ministry of Defence of 5 June 2014 was arbitrary

and manifestly unsound. The High Court of Justice of La Rioja required the fulfilment of a

condition (being the direct target of a terrorist act) that cannot be inferred from the literal

wording of the Act on the Recognition and Comprehensive Protection of Victims of

Terrorism. The preamble of the Act refers to the objectives of granting greater protection to

persons who have suffered the consequences of a terrorist act and of providing them with

comprehensive support. The Act applies irrespective of whether or not those who suffer the

consequences of a terrorist attack were the target of the attack.

3.3

With respect to article 26 of the Covenant, the author is being prevented, through

differential treatment, from obtaining special compensation for victims of terrorist acts

without any objective or reasonable justification. On multiple occasions, the Spanish courts

have recognized that injuries suffered by members of the State security forces and law

enforcement agencies occurred as a result of a terrorist act, without ever requiring that the

claimants be the direct targets of the terrorist acts or actions.3 The High Court of Justice of

La Rioja did not mention the infringement of the principle of equality alleged by the author.

3.4

In addition, the author’s right to social security, as enshrined in article 9 of the

International Covenant on Economic, Social and Cultural Rights, was violated. He was

deprived of the right to receive a specific disability benefit for a prolonged period of illness

without sufficient, reasonable or objective reason.

State Party’s observations on admissibility and the merits

4.1

In its observations dated 11 and 12 June 2019, the State Party considers that the

communication is inadmissible under articles 2, 3 and 5 (2) (a) of the Optional Protocol. The

European Court of Human Rights has already considered the same matter. Moreover, the

State Party has entered a reservation concerning article 5 (2) (a) of the Optional Protocol and

does not understand why, in 2013, the Committee ceased to automatically apply this

reservation to all cases in which the same matter has previously been examined by the

European Court of Human Rights. Furthermore, the communication is insufficiently

reasoned and does not establish a violation of any article of the Covenant. Also, as explained

2 The European Court of Human Rights did not provide further details on the grounds for

inadmissibility.

3 Specifically, the author refers to the following judgments of the Administrative Chamber, Fifth

Section, of the National High Court: judgment of 2 October 2013 (appeal No. 55/2011), judgment of

26 June 2013 (appeal No. 60/2013), judgment of 17 July 2013 (unspecified appeal), judgment of

12 June 2013 (unspecified appeal), judgment of 6 February 2013 (appeal No. 167/2012), judgment of

24 September 2014 (unspecified appeal) and judgment of 27 January 2016 (appeal No. 122/2015).

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below, the communication omitted significant factual elements and therefore constitutes an

abuse of the right of submission.

4.2

According to domestic jurisprudence, permanent disability resulting from terrorism is

only recognized when the illness is a direct consequence of an act of terrorism targeted at the

person concerned.4 In the present case, the judgments of the national courts contain an

exhaustive examination of the evidence. The central argument for dismissing the author’s

claim is that his disability was not a direct effect of a terrorist attack that he experienced. The

interpretation of the law was not arbitrary, unsound or unfair, as it followed the jurisprudence

established by the courts in such matters. None of the alleged grounds for discrimination in

the State Party’s actions have been established or substantiated. The comparative cases cited

by the author in support of his claim of discrimination are not analogous to his own situation.

Two of the cases did not deal with acts of terrorism.5 In the other cases, the illness was a

direct consequence of a terrorist act experienced by the person concerned.6

4.3

In a decision of 4 January 2013, in keeping with the law, the author was forcibly

retired on grounds of permanent unfitness for service after being diagnosed with delayed

onset post-traumatic stress disorder and chronic acoustic trauma typical of firearm use.

Subsequently, the author requested that the aforementioned decision be amended to declare

the permanent unfitness to be the result of a terrorist act. The request was denied because

there was no evidence in the file establishing that the author was a victim of terrorism within

the scope of regulations on assistance and compensation for victims of terrorist acts.

4.4

On 10 December 2013, pursuant to article 1 of Royal Decree-Law No. 8/2004 of

5 November 2004 on compensation for participants in international peace and security

operations, the Ministry of Defence awarded the author compensation of 48,000 euros for

“harm suffered while deployed with the International Security Assistance Force in

Afghanistan”.7

4.5

The author did not mention that he had filed an administrative appeal against the

Ministry of Defence decision of 11 December 2012 with the aim of having his unfitness for

service declared as resulting from an act of terrorism. On 6 March 2014, the Administrative

Chamber of the High Court of Justice of La Rioja dismissed the appeal in judgment

No. 60/2014, which examined the disability case and the author’s actions. The judgment is

complemented by 2015 and 2016 judgments of the same court.

4.6

In its 2014 judgment, the High Court of Justice of La Rioja made the following

observations. Regarding the application to initiate a procedure to determine physical and

psychological aptitude, the author’s statement of 7 June 2011 did not refer to a car bomb at

the military base in Herat on 30 January 2007. The author only noted that his situation was

rooted in an episode of anxiety that was due to his transfer to an area of operations in

Afghanistan, for the second time in a very short period, to the stressful situations experienced

there and to the recurrent memories of a comrade who had died while training to take over

from him. It had taken the author a long time to recover. His situation had worsened on

23 December 2008, when he was sent without any personal protective equipment (apart from

a military jacket), together with another comrade, to recover a broken helicopter. There was

very little time left before nightfall, the area was dangerous and he felt sharp pain in his chest.

4 See, for example, National High Court, judgments No. 4685/2011 (ECLI:ES:AN:2012:4685) and

No. 1813/2011 (ECLI:EN:AN:2011:1813).

5 National High Court, judgments No. 2780/2013 (ECLI:ES:AN:2013:2780) and No. 3305/2013

(ECLI:EN:AN:2013:3305).

6 National High Court, judgments No. 277/2016 (ECLI:ES:AN:2016:277), No. 3741/2014

(ECLI:EN:AN:2014:3741), No. 524/2013 (ECLI:EN:AN:2013:524), No. 2965/2013

(ECLI:EN:AN:2013:2965) and No. 4128/2013 (ECLI:EN:AN:2013:4128).

7 On 8 January 2013, the author filed a request for compensation for personnel who suffered physical

or psychological harm during international peace and security operations. On 10 December 2013, the

Ministry of Defence issued a decision, awarding the author compensation of €48,000 for total

permanent disability, on the basis of the assessment by the Higher Expert Medical Board of the

Armed Forces of 9 May 2013. As indicated in the decision, the compensation was extraordinary,

would be granted only once, could “not be combined with the compensation provided for in the

regulations on victims of terrorism” and was tax exempt.

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Despite successfully returning to base, the pain persisted for three days, barely allowing him

to sleep. After receiving appropriate treatment following a diagnosis of anxiety, he completed

his mission normally. The High Court of Justice of La Rioja noted that, in the same 2011

submission, the author maintained that his difficulties, which he had completely overcome,

had occurred at a specific time and place two years and five months earlier. The author also

stated that he wished to remain in active service without any limitations and had requested

the revocation of the last expert medical opinion of 16 May 2010, which had led to the

initiation of a procedure to determine his physical and psychological aptitude.

4.7

The High Court of Justice of La Rioja also noted in the judgment that the report of the

Permanent Assessment Board of 19 April 2012 stated that there was no causal link between

the author’s condition and the terrorist attack. In addition, in the minutes of the Expert

Psychiatric Board meeting of 18 September 2012, no mention was made of any terrorist

attack experienced by the author. In response, the author stated his intention not to make

specific claims or provide documents or supporting evidence.

4.8

The High Court of Justice noted that the events during the author’s missions abroad,

as recorded in the administrative case file, were the following: first, his transfer to the area

of operations in Afghanistan, for the second time in a very short period, the stressful

situations experienced there and the recurrent memories of a comrade who died while training

to relieve him; and, secondly, his assignment on 23 December 2008, together with another

comrade, to recover a damaged helicopter in a dangerous area without personal protective

equipment (apart from a military jacket) shortly before nightfall. According to a report dated

28 February 2009, the author had suffered the dramatic loss of a comrade in 2007 and the

grief was unresolved. The author did not accept the death of his comrade and expressed

feelings of anger, frustration and helplessness. Likewise, in a health questionnaire completed

upon return from mission on 2 March 2009, the author – in response to a question about

whether he had been subjected to any toxic conditions or risk factors – had answered: “own

materials, helicopter department”. He did not refer to the 2007 or 2008 attacks. The High

Court of Justice noted that the author had not mentioned any attack, including the attack on

the base in Herat on 30 January 2007. It concluded that the author was raising this claim

before an administrative court for the first time, meaning that the claim had not been

previously examined since the author had not raised it in administrative proceedings, referred

to an attack or provided documentation or supporting evidence regarding the events.

Author’s comments on the State Party’s observations on admissibility and the merits

5.1

In his comments of 16 August 2019, the author states that at no time was it his

intention to omit or withhold any information from the Committee. The author did not submit

the judgment referred to by the State Party (No. 60/2014 of 6 March 2014 of the

Administrative Chamber of the High Court of Justice of La Rioja) together with his

communication because it was the outcome of prior proceedings separate from those under

challenge. The issue raised in the communication, namely whether the author could be

considered a victim of terrorism under applicable legislation, was not discussed in the prior

proceedings. The proceedings to which the State Party was referring concerned the Ministry

of Defence decision of 11 December 2012, declaring the author to be in inadequate physical

and psychological condition for service. The dismissal of the author’s appeal by the High

Court of Justice of La Rioja was based on the consideration that his physical and

psychological inadequacy for service being due to a terrorist act was a new claim.

5.2

The physical and psychological aptitude procedure, pursuant to which the author was

forcibly retired due to permanent unfitness for service, was initiated in July 2011 by the

authorities, not at the author’s request. The author did not agree with the initiation of this

procedure; accordingly, his goal during the proceedings was to avoid being found physically

and psychologically unfit, so he had played down his illnesses.

5.3

The finding of the European Court of Human Rights that the author’s application was

inadmissible did not represent an examination of the same matter because the European Court

rejected the application on procedural grounds without examining the merits. Furthermore,

the complaint to the Committee does not constitute an abuse of the right of submission. The

relevant laws do not require proof that the person harmed was the direct target of a terrorist

act in order to be considered a victim of that act.

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5.4

The State Party’s argument concerning the author’s claim under article 26 of the

Covenant is flawed. The fact that the author experienced a number of terrorist attacks and

that his injuries were the result of those acts is not disputed. It has never been argued that

there is no causal link between the author’s injuries and the attacks in Afghanistan. The High

Court of Justice of La Rioja simply ruled that the terrorist attacks were not directly targeted

at the author or the base where he was located. The cases cited by the author in the complaint

deal with situations in which an attack was not directly aimed at those affected but these

persons were nevertheless considered to be victims of a terrorist act. However, the author

acknowledges having incorrectly cited two judgments in support of his arguments. He

maintains that he did not intend to mislead the Committee.

5.5

The author is seeking €65,000 in compensation. He is also requesting that

compensation be commensurate with the rights violations he has endured, in accordance with

the principle of full reparation and the concept of moral damage. The reparation must also

cover the costs and expenses he has incurred.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the case is admissible

under the Optional Protocol.

6.2

The Committee notes the State Party’s argument that the communication is

inadmissible under article 5 (2) (a) of the Optional Protocol, when read in conjunction with

the State Party’s reservation thereto, which excludes the Committee’s competence in relation

to cases where the same matter has been or is being examined under another procedure of

international investigation or settlement. In this regard, the Committee recalls that its

jurisprudence establishes that when the European Court of Human Rights bases a declaration

of inadmissibility not solely on procedural grounds but also on grounds that include a certain

consideration of the merits of the case, then the matter should be deemed to have been

examined within the meaning of the reservations to article 5 (2) (a) of the Optional Protocol.8

The Committee notes that the author raised before the European Court of Human Rights the

merits of the same claims contained in his communication before the Committee. On

24 November 2016, the European Court of Human Rights declared the author’s application

inadmissible without providing specific arguments justifying this conclusion, so it is unclear

whether the decision was based on procedural or substantive issues. Accordingly, the

Committee is unable to conclude that the same matter has been examined by the European

Court.9 The Committee therefore considers that it is not precluded by article 5 (2) (a) of the

Optional Protocol or the State Party’s reservation to this article from considering the present

communication.

6.3

Concerning the complaint relating to article 9 of the International Covenant on

Economic, Social and Cultural Rights, the Committee recalls that, under article 1 of the

Optional Protocol, its competence is limited to the examination of communications alleging

a violation of rights under the International Covenant on Civil and Political Rights. 10

Consequently, alleged violations of other treaties or agreements fall outside of the scope of

the Committee’s competence. 11 The Committee therefore considers that this claim is

inadmissible ratione materiae under article 3 of the Optional Protocol.

6.4

As to the State Party’s argument that the communication is manifestly unfounded, the

Committee notes that, according to the author, the domestic courts violated his rights under

articles 14 and 26 of the Covenant. The Committee recalls its constant jurisprudence that it

is not a final instance competent to re-evaluate findings of fact or the application of domestic

legislation, unless it can be ascertained that the proceedings before the domestic courts were

8 See, for example, Pindado Martínez v. Spain (CCPR/C/94/D/1490/2006), para. 6.3.

9 See, for example, X v. Iceland (CCPR/C/130/D/2818/2016), para. 6.2.

10 See, for example, Z and C v. Denmark (CCPR/C/137/D/2795/2016), para. 6.4.

11 Ibid.

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manifestly arbitrary or unsound or that they amounted to a denial of justice, or that the courts

failed in their duty to maintain independence and impartiality.12

6.5

In this case, the Committee notes the author’s claim that the dismissal by the domestic

courts of his appeal and application for amparo in relation to his application for compensation

as a victim of terrorism was arbitrary, unsound and discriminatory. The Committee considers

that the High Court of Justice of La Rioja dismissed the author’s appeal in 2016 mainly on

the basis of his previous statements on the cause or causes of his permanent unfitness for

service. The Court referred to its 2014 judgment, in which it had noted that the case file

contained no mention, in relation to his unfitness, of any attack, including the specific attack

of 30 January 2007. Furthermore, in its 2016 judgment, the Court noted that: the attack that

occurred on 15 or 16 November 2008 had never been mentioned before; the expert report of

22 June 2013 submitted by the author only referred to the 2007 explosion; the notice of

administrative appeal contained no mention of an attack in 2008; and the affidavit submitted

by the author with his complaint mentioned only one terrorist attack, the one in 2007, not

two. Furthermore, the Court recalled that, in his statement of 7 June 2011 in which the author

claimed to have completely overcome his physical and psychological difficulties, he did not

mention car bombs or any other type of terrorist attack as the cause of these difficulties.

6.6

While the author claims that the High Court of Justice of La Rioja acted in a

discriminatory manner by establishing a new requirement that claimants should be the direct

target of a terrorist attack, the Committee notes that, in this respect, the Court based its

reasoning on the jurisprudence of the National High Court.13 The Committee also notes that,

in the cases cited by the author in support of his argument, the Court had recognized that the

claimants’ injuries resulted from a terrorist attack they had experienced and had awarded

compensation accordingly. However, due to the author’s diverging statements on the cause

of his injuries, the Court did not reach the same conclusion in his case. In the light of the

forgoing and the information before it, the Committee is of the view that the author has not

sufficiently substantiated his claim that the decisions of the domestic authorities were clearly

arbitrary or unsound or amounted to a denial of justice or of equal protection under the law.

The Committee therefore finds the author’s claims under articles 14 and 26 of the Covenant

inadmissible under article 2 of the Optional Protocol.

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under articles 2 and 3 of the Optional

Protocol;

(b)

That the present decision shall be transmitted to the State Party and to the

author.

12 For example, X v. Latvia (CCPR/C/136/D/3254/2018), para. 7.5.

13 Judgments ECLI:ES:AN:2012:4685 of 7 November 2012 (appeal No. 112/2012) and

ECLI:ES:AN:2011:1813 of 11 April 2011.