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1. The author of the
communication dated 3 May 1999 is José Antonio Martínez Muñoz, a citizen of
Spain, who claims to be a victim of a violation by Spain of article 14,
paragraph 1, article 14, paragraph 3 (b), (c) and (d), and article 17 of the
International Covenant on Civil and Political Rights. He is represented by
counsel. The Optional Protocol entered into force for Spain on 25 January
1985.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 21 September 1990, the author, together with six other persons, took
part in writing pintadas ("graffiti") in favour of the right to refuse to
perform military service, on the outer facade of the bullring in the town of
Yecla. For this reason, they were intercepted by two local policemen. The
author alleges that, when one of the policemen attempted to arrest him, a
struggle ensued and he accidentally struck the policeman in one eye, causing
a contusion.
2.2 The author was held in custody on 21 September 1990 and released on 22
September 1990. The hearing took place on 14 June 1995. The author was
accused by the prosecutor of two misdemeanours and an offence and, on 16
June 1995, Criminal Court No. 3 of Murcia sentenced him for the offence of
attacking a law enforcement officer to a penalty of six months' and one
day's imprisonment and compensation in the amount of 70,000 pesetas in
favour of the injured policeman.
2.3 The author filed an appeal to the Murcia Provincial High Court, claiming
a violation of the principle of equality before the law and of equality of
arms, as well as a violation of his right to a defence. All the allegations
were dismissed on 20 November 1995.
2.4 The author filed an application for amparo and requested the
Constitutional Court to allow him to dispense with the procurador and to
represent himself. That request was denied on 15 January 1996. The author
then requested the court to appoint a procurador. When that person had been
appointed in accordance with article 27 of the Free Legal Assistance Act,
the Constitutional Court required the freely chosen lawyer to waive his
fees. In the light of this requirement, the author filed an application for
reconsideration, which was rejected on 22 March 1996.
2.5 When the freely chosen lawyer refused to waive his fees, on 13 December
1995 the author requested the court to appoint counsel. The lawyer assigned
to him requested the Constitutional Court to excuse her from filing an
application for amparo, since she believed that that remedy was unnecessary
because there had been no violation of fundamental human rights.
2.6 The author said that he wished to dismiss the court-appointed counsel.
On 1 July 1996, the Constitutional Court informed him that it could not
accede to his request but transmitted the pleas of fact to the General
Council of Spanish Lawyers which, on 9 September 1996, concluded that the
application for amparo that the author's court-appointed counsel had not
filed was partly sustainable, since it could be admissible only with respect
to the complaint of undue delay in the proceedings.
2.7 On 7 October 1996, the author was assigned another counsel, who was
given 20 days to file an application for amparo. The application was filed
in connection with the alleged undue delay in the proceedings and, on 5
March 1997, was rejected by the Constitutional Court, which considered that
the application did not contain enough information to justify a decision.
THE COMPLAINT
3.1 The author complains of violations of article 14, paragraph 1, of the
Covenant. He claims a violation of the principles of equality before the law
and of equality of arms, arguing that, during the proceedings, "inexplicable
privileges" were granted to the prosecution, such as allowing it to propose
certain measures. He also claims that, since he was not allowed to dispense
with a procurador and represent himself before the Constitutional Court, he
was placed in a situation of inequality with respect to persons with a law
degree. For the author, the provisions of article 81, paragraph 1, of the
Constitutional Court Organization Act constitutes an unjustified inequality
since, according to that paragraph, the services of the procurador are
limited to the transmission of documents between the court and counsel.
3.2 The author claims that his right to a defence under article 14,
paragraph 3 (b), of the Covenant was violated in that Murcia Criminal Court
No. 3 did not allow his lawyer to question him properly, claiming that the
interrogation was being conducted in a tendentious manner. The court also
did not allow his lawyer to have one of the witnesses re-enact the incident,
evidence that was of fundamental importance to his defence since, according
to the author, it would have made it possible to prove that he had struck
the [policeman in the] eye by accident.
3.3 The author maintains that article 14, paragraph 3 (c), of the Covenant
was violated since, owing to the lapse of almost five years between the
incident, which occurred on 21 September 1990, and the hearing, which was
held on 14 June 1995, his right to a speedy trial without undue delay was
violated since, according to him, the relative straightforwardness of the
case did not justify such a long delay.
3.4 The author claims a violation of article 14, paragraph 3 (d), of the
Covenant, which guarantees the right to assigned legal assistance. He
maintains that the lawyer assigned to him did not comply with her duty to
defend him effectively before the Constitutional Court. The author states
that, by refusing to file the relevant remedy, the lawyer prejudged his
case.
3.5 The author claims a violation of article 17 of the Covenant, since the
law provides that the freely chosen lawyer has the obligation to waive his
fees when acting together with a court-appointed procurador. According to
the author, this constitutes arbitrary interference in the private
relationship between the lawyer and his client.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS
4.1 In its submission dated 1 October 2001, the State party challenges the
admissibility of the communication on the basis of article 2 of the Optional
Protocol, claiming that domestic remedies were not exhausted since, although
the author had appealed the decision of Criminal Court No. 3 to the Murcia
Provincial High Court, neither he nor his lawyer was present when his appeal
was heard at which time the author would have had an opportunity to state
his allegations. The State party claims that, by not attending the hearing
of his appeal, the author voluntarily renounced the possibility of filing or
rectifying complaints. Therefore, when hearing the appeal, the National High
Court had had to limit itself to the content of the written appeal.
4.2 The State party alleges that the author's complaint regarding the
summary procedure was not lodged with the Spanish courts; it was therefore
not examined and no decision was taken on it. The same applies to the
complaints concerning the form of the interrogation and representation
before the Constitutional Court. The State party maintains that the
application for amparo that the author's lawyer filed with the
Constitutional Court contained only allegations of undue delay in the
proceedings; at the same time, a petition for pardon was filed. The Court's
decision was limited to consideration of the foregoing.
4.3 The State party alleges that the Constitutional Court in no way opposed
the freely chosen lawyer's defence of the author; however, the law on free
assistance, which had been applied owing to the author's lack of means,
required that the professional lawyer should not receive a fee. Since the
lawyer refused to waive his fee, the author dismissed him and requested the
court to appoint counsel. The State party affirms that, with regard to the
action taken by the court-appointed counsel, the complaint is based on a
discrepancy between the actual lawyer and the conduct of appointed counsel.
It alleges that, pursuant to a written submission by the first
court-appointed counsel, in which she considered the remedy to be
unsustainable, the General Council of Spanish Lawyers intervened and,
following its ruling, the court appointed another lawyer, who filed the
application for amparo. The State party therefore maintains the author was
assisted by counsel.
4.4 The State party alleges that the facts bear no relation to the right to
privacy dealt with in article 17 of the Covenant and that, in accordance
with article 3 of the Optional Protocol, the claim should be declared
inadmissible ratione materiae.
4.5 According to the State party, the author claims that the excessive
duration of the proceedings constituted grounds for his pardon. However, it
points out that there is no provision in the Covenant to this effect, and
that the complaint concerning article 14, paragraph 3 (c), of the Covenant
is unsubstantiated. The State party affirms that, in accordance with
articles 292 et seq. of the Judiciary Organization Act, an undue delay in
the proceedings provides the right to claim economic compensation for the
shortcomings of the administration of justice. However, since the author has
not filed this legally supported claim, he has not exhausted domestic
remedies.
4.6 In its submission dated 18 February 2002, the State party informed the
Committee that its observations dated 1 February 2001 should also apply to
the merits, arguing that the complaints were not made through domestic
channels and, therefore, could not be examined and a decision on them could
not be taken. Consequently, the State party was unable to provide
information in that regard.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS
5.1 In his submission dated 2 January 2002 concerning his appeal, the author
claims that his absence at the hearing did not imply the forfeit of the
right to an examination of the arguments that he had previously submitted in
writing, since the first paragraph of the decision states that "... the
absence of the appellant when the appeal was heard in second instance does
not prevent the consideration of the reasons for the recourse filed in
writing ...". The author claims that he was not present at the hearing
because the court-appointed procurador did not forward the notification to
his lawyer in time.
5.2 The author alleges that it should not be considered that his application
for amparo contained only an allegation concerning undue delay in the
proceedings and a petition for pardon. According to him, it should be taken
into account that the court-appointed lawyer ignored his arguments and did
not present all his complaints before the Constitutional Court, and that
this was not the fault of the author but was due to the incompetence of the
defence. It was therefore the fault of the State, which hires legal counsel.
5.3 The author affirms that his complaint regarding the lack of equality of
arms between the prosecutor and his counsel in the summary criminal
proceeding was cited in the appeal and that that matter could not have been
brought before the Constitutional Court owing to the unlikelihood of its
success.
5.4 With regard to his complaint concerning the shortcomings of the defence,
the author alleges that the State party does not give any reasons for its
objection. The author insists that the court did not allow his lawyer to ask
certain kinds of questions because it considered them deceitful or
tendentious; this measure was not applied to the prosecutor, to whom the
court granted freedom of interrogation without disallowing questions that
also seemed to be formulated in a similar manner.
5.5 The author claims that the Constitutional Court was obliged to allow him
to represent himself, since he insists that the duties of the procurador are
limited to receiving notifications and transmitting them to the lawyer, and
that he had requested that the court dispense with the procurador, not the
lawyer.
5.6 The author states that the two lawyers who were assigned to him did not
meet the requirements of effective legal assistance, since they omitted from
the application for amparo the defendable arguments contained in the appeal.
The author therefore insists that this constituted a violation of article
14, paragraph 3 (d), of the Covenant.
5.7 The author maintains that there was a violation of article 17 of the
Covenant, claiming that article 27 of the Free Legal Assistance Act provides
that the beneficiary of free legal assistance may use his own lawyer and
procurador, but must pay their fees; on the other hand, when the beneficiary
uses a lawyer or procurador of his own choosing, the law requires the other
appointed professional to waive his fees in writing and before the Bar
Association, without this being justified.
5.8 In his submission dated 18 April 2002, the author replies to the State
party's observations of 18 February 2002, reiterating the same arguments
that he made on 2 January 2002.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The Committee has ascertained, as required under article 5, paragraph 2
(a), of the Optional Protocol, that the same matter is not being examined
under another procedure of international investigation or settlement.
6.3 The author claims a violation of article 14 (1) of the Covenant, arguing
that, during the proceedings, privileges were granted to the prosecution,
which was allowed to propose measures after the summary procedure had begun.
In this regard, the Committee notes that the author does not substantiate
his complaint by indicating what these measures were and how they damaged
his case. He also does not substantiate his complaint that Murcia Criminal
Court No. 3 granted complete freedom of interrogation to the prosecutor,
without disallowing questions formulated in a manner similar to that which
the author's counsel was not permitted to use. Consequently, this part of
the complaint is admissible under article 2 of the Optional Protocol.
6.4 The author also claims a violation of article 14, paragraph 1, of the
Covenant, arguing that, since he was not allowed to dispense with a
procurador and to represent himself before the Constitutional Court, he was
placed in a situation of inequality with respect to persons with a law
degree; such inequality was not justified. In this regard, the Committee
recalls its constant jurisprudence [FN1] that the requirement for
representation by a procurador reflects the need for a person with knowledge
of the law to be responsible for handling an application to that court. The
Committee therefore considers that the author's allegations have not been
properly substantiated for the purposes of admissibility. Consequently, this
part of the communication is inadmissible under article 2 of the Optional
Protocol.
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[FN1] Communication No. 865/1999, Alejandro Marín Gómez v. Spain, Views
adopted on 22 October 2001, para. 8.4; communication No. 866/1999, Marina
Torregrosa Lafuente et al. v. Spain, Views adopted on 16 July 2001, para.
6.3; and communication No. 1005/2001, Concepción Sánchez González v. Spain,
Views adopted on 22 March 2002, para. 4.3.
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6.5 The author claims that his right to a defence, guaranteed in article 14,
paragraph 3 (b), was violated, since the court did not authorize the form -
which it called "tendentious" - in which his lawyer wished to question him,
nor did it permit the re-enactment of the incident by one of the witnesses,
which, according to the author, was crucial to his defence. The Committee
notes that the dismissal of that complaint was argued both by the court of
first instance and by the National High Court in its decision on the appeal.
In this regard, the Committee recalls its constant jurisprudence that the
interpretation of domestic law in a specific case is essentially a matter
for the courts and authorities of the State party concerned. It is therefore
not for the Committee to evaluate facts and evidence, unless the domestic
decisions are manifestly arbitrary or amount to a denial of justice. In the
present case, the author has not substantiated any claim in this regard.
Consequently, this part of the communication is declared inadmissible under
article 2 of the Optional Protocol.
6.6 The State party submits that the communication should be declared
inadmissible, stating that domestic remedies have not been exhausted, as the
author failed to avail himself of the administrative remedy envisaged in Law
No. 6/1985 on the Judiciary (Ley Orgánica 6/1985 del Poder Judicial). This
Law, in its Chapter V, stipulates the conditions under which those who
consider themselves prejudiced by an unreasonable delay in judicial
proceedings, which constitutes an irregularity in the administration of
justice in the State party, may claim compensation from the State. The
Committee recalls its jurisprudence in Communication No. 864/1999, Alfonso
Ruiz Agudo v Spain, according to which domestic remedies are considered as
exhausted, despite the possibility of a claim for compensation under
administrative law, if judicial proceedings have been unreasonably prolonged
without sufficient explanation provided by the State party. In the present
case, the events occurred on 21 September 1990; the author was detained the
same day and released two days later; he was indicted in 1992; the oral
hearing took place on 14 June 1995; the judgment of the first instance
tribunal was delivered on 16 June 1995, and the judgment of the Provincial
Court of Murcia on 20 November 1995. The appeals lodged by the author were
rejected at both stages of the trial and, on 5 March 1997, the
Constitutional Tribunal dismissed his complaint about an unreasonable delay.
Taking into account this delay, the nature of the offence, and the absence
of elements which would have complicated the investigations and judicial
proceedings, as well as the absence of an explanation by the State party
concerning the delay of such proceedings, the Committee concludes that the
communication is admissible with regard to a possible violation of article
14, paragraph 3 (c), of the Covenant.
6.7 The author alleges a violation of article 14, paragraph 3 (d), which
guarantees his right to have legal assistance assigned to him, arguing that
the court-appointed counsel did fulfil her obligation to defend him
effectively before the Constitutional Court. In this regard, the Committee
observes that, pursuant to the ruling of the General Council of Spanish
Lawyers of 9 September 1996, a new court-appointed counsel was assigned to
the author, who filed an application for amparo within the time limit
established by the Constitutional Court and in accordance with the terms
suggested by the General Council of Spanish Lawyers. Consequently, the
Committee is of the view that the author does not substantiate his claim for
the purposes of admissibility, and declares this part of the claim
inadmissible under article 2 of the Optional Protocol.
6.8 The author claims that article 17 of the Covenant has been violated,
since the Free Legal Assistance Act requires the freely chosen lawyer to
waive his fees when acting together with a court-appointed procurador, which
amounts to arbitrary interference in the private sphere of client-lawyer
relations. None of the arguments adduced by the author leads the Committee
to consider that the facts have any bearing on article 17 of the Covenant.
Consequently, this part of the complaint should be declared inadmissible
under article 2 of the Optional Protocol.
CONSIDERATION AS TO THE MERITS
7.1 The author claims that there were undue delays in his trial, since
almost five years elapsed between the date of the incident and the hearing.
The Committee notes that the circumstances of the case involved a flagrant
offence, and that the evidence required little police investigation and, as
the author points out, the low level of complexity of the proceedings did
not justify the delay. The Committee recalls its constant jurisprudence that
exceptional reasons must be shown to justify delays - in this case, five
years - until trial. In the absence of any justification advanced by the
State party for the delay, the Committee concludes that there has been a
violation of article 14, paragraph 3 (c), of the Covenant.
7.2 In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy, including adequate compensation. The State party is also under an
obligation to take the necessary measures to ensure that similar violations
do not occur in the future.
7.3 On becoming a State party to the Optional Protocol, Spain recognized the
competence of the Committee to determine whether or not there has been a
violation of the Covenant. Pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the Covenant and to
provide an effective and enforceable remedy in case a violation has been
established. The Committee wishes to receive from the State party, within 90
days, information about the measures taken to give effect to the Committee's
Views. The State party is requested to publish the Committee's Views.
[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
The text of one individual opinion signed by Committee members Mr. Nisuke
Ando, Ms. Ruth Wedgwood, Mr. Roman Wieruszewski and Mr. Maxwell Yalden are
appended to the present document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBERS MR. NISUKE ANDO, MR. MAXWELL YALDEN,
MRS. RUTH WEDGWOOD AND MR. ROMAN WIERUSZEWSKI
We are unable to share the majority view in the present case that there has
been a violation of article 14, paragraph 3(c) of the Covenant. According to
the majority view, there was undue delay in the trial, since almost five
years elapsed between the date of the incident and the date of the
conviction.
However, the incomplete factual record before the Committee does not
substantiate this view. The record indicates that the author was arrested
for assaulting a policeman on September 21, 1990, in the town of Yecla,
Spain, and was released the next day. On September 29, 1992, there was some
sort of judicial hearing on potential charges, but we do not have any
account or summary of that hearing before us. A trial took place before a
first-instance tribunal on 14 June 1995, with judgment of conviction
delivered on 16 June 1995, and the judgment was affirmed by
the Provincial High Court on 20 November 1995. On 5 March 1997, Spain's
Constitutional Court dismissed the author's claim concerning unreasonable
delay on the ground that "the application did not contain enough information
to justify a decision." See the Committee's Views, paragraph 2.7.
With due respect to the majority view, we face the same dilemma as the
Constitutional Court. The author, represented by legal counsel before this
Committee, has not provided an adequately informative chronology of the
facts, much less any supporting documents. We do not know when the criminal
charges on which he was convicted were actually filed. It is entirely
possible that all initial charges were dismissed without prejudice after the
defendant's overnight arrest for allegedly striking a policeman in the eye.
Article 14(3) of the Covenant guarantees the right to "be tried without
undue delay" in "the determination of any criminal charge against him." This
provision has to be construed with proper attention to widely accepted state
practice. In most legal systems, a speedy trial claim is not measured by the
gap in time between the date of a criminal incident and its judgment at
trial. Rather, speedy trial provisions limit the disposition of pending
charges. There is nothing in the record before the Committee that indicates
charges were pending from 1990 to 1992. The ability of a state to take some
time to consider whether to bring charges will often benefit defendants. In
a case that arises out of the posting of political graffiti, a state might
reflect on whether or not to proffer charges. The proffering of charges is,
of course, subject to some time limits as well. In most legal systems, a
statute of limitations runs from the date of the incident. But for serious
charges, the statute of limitations can be as long as five years or more.
In the present case, the entire first-instance trial process was complete
within five years. As noted above, Spain's Constitutional Court dismissed
the author's claim concerning unreasonable delay on the ground that "the
application did not contain enough information to justify a decision." In
this connection, we would like to emphasize that the Committee should make
it a matter of routine to obtain and translate the judgment of the appellate
court that has heard the precise claim brought before the Committee.
Especially where an author is represented by counsel, the burden of
substantiating the claim is properly put on the author.
Under the circumstances of the present case, we consider it difficult to
conclude that the trial process as a whole has suffered undue delay or that
it constitutes a violation of article 14, paragraph 3(c). Perhaps the
Committee would have been more prudent to conclude that the author failed to
substantiate his claim for the purpose of admissibility.
[Signed] Mr. Nisuke Ando
[Signed] Mr. Maxwell Yalden
[Signed] Mrs. Ruth Wedgwood
[Signed] Mr. Roman Wieruszewski
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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