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1. The author of the communication, dated 31
July 2001, is Antonio Martínez Fernández, a Spanish citizen. He claims to be
the victim of a violation by Spain of article 14, paragraph 5, of the
Covenant. The Optional Protocol entered into force for the State party on 25
April 1985. The author is represented by counsel, Mr. José Javier Uriel
Batuecas.
FACTUAL BACKGROUND
2.1 The author was a warrant officer in the Spanish army. He was sentenced
by the Second Territorial Military Court on 26 March 1999, for the offence
of disobedience, to 10 months' imprisonment, to suspension from official
duties, and to suspension of voting rights. The author fractured his right
hand in October 1995 and was placed on medical leave. In February 1996 he
was ordered on three occasions to take a psychological and physical
examination, but did not comply until the third time. On 1 March 1996 he was
declared medically fit for duty and was told to report immediately to his
military unit. Instead of complying, the author sent a number of documents
certifying his temporary incapacity for duty. In late March 1996 he was
again ordered to report for duty and again failed to appear, submitting
instead a certificate of temporary incapacity.
2.2 The author filed an application for judicial review and annulment with
the Fifth Chamber of the Supreme Court, convening as a military chamber. In
the application the author referred to article 14, paragraph 5, of the
Covenant. In a judgement of 29 December 1999, the Fifth Chamber rejected the
appeal. Pursuant to article 325 of the Military Proceedings Act, which
refers to articles 741 et seq. of the Criminal Procedure Act, the Chamber
confined itself to hearing the arguments put forward in the appeal to decide
whether or not they were well founded.
2.3 The author applied to the Constitutional Court for amparo, claiming
violation of his right to review by a second court. In the application the
author alleged that the Military Proceedings Act prohibited the Fifth
Chamber of the Court from acting as a genuine court of appeal, in the sense
of having full powers to review all past proceedings. He also referred to
the Views of the Committee in the Gómez Vásquez case. [FN1] In a judgement
of 9 May 2001, the Constitutional Court rejected the appeal.
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[FN1] Communication No. 701/1996, Gómez Vásquez v. Spain, decision of 20
July 2000.
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2.4 On 27 July 2001, the author lodged a complaint with the European Court
of Human Rights concerning the same case, also before the Committee. But on
12 September 2002, the author asked the European Court of Human Rights to
withdraw his complaint, a fact which he communicated to the Committee on the
same date. The secretariat of the European Court of Human Rights informed
the Committee that in a decision of 3 December 2002 the Court had struck the
author's complaint off the roll.
THE COMPLAINT
3. The author claims that his right to have his conviction and sentence
reviewed by a higher court was violated. He argues that, owing to the
special nature of the appeal process, the Chamber may not hear or review the
entire proceedings of the court of first instance, but only analyse the
grounds referred to by the applicant to decide whether or not they are in
conformity with the law. The author asserts that the Chamber may rule only
on irregularities in the judgement, and may not deal fully with the "rights"
[sic] involved, but must confine itself to examining the applicant's
arguments to determine whether or not they are well founded. The author
maintains that there is no review by a higher tribunal, as provided for by
article 14, paragraph 5, of the Covenant.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 With regard to the admissibility of the communication, the State party
maintains that there is no conclusive evidence that the European Court of
Human Rights accepted the author's application to withdraw his complaint. It
adds that the author has acknowledged having lodged simultaneous complaints
with the Committee and the European Court of Human Rights and that this
action by the author is contrary to article 5, paragraph 2 (a), of the
Optional Protocol and renders the communication inadmissible. Even if
proceedings before the European Court of Human Rights had concluded, they
would have been conducted at the same time as proceedings before the
Committee. The State party concludes that, even if the complaint before the
European Court of Human Rights has been withdrawn, the reservation made
under the Optional Protocol, as interpreted by the Committee in its
inadmissibility decision on communication No. 1074/2002 (Ferragut v. Spain,
decision of 28 March 2004) is applicable.
4.2 On the merits of the communication, the State party maintains that
article 14, paragraph 5, does not establish the right for an appeal court to
reconduct the trial in toto, but concerns the right to review by a higher
tribunal of the proper conduct of the trial at first instance, including the
application of the rules that led to the finding of guilt and the imposition
of the sentence in the specific case. The object of the review is to verify
that the decision at first instance is not manifestly arbitrary and that it
does not constitute a denial of justice.
4.3 The State party maintains that the remedy of judicial review is based on
the French system and that for historical and philosophical reasons it arose
as a review limited to questions of law, and that it maintains this
character in various European countries. The State party argues that the
European Court of Human Rights has affirmed that States parties retain the
right to determine the means for the exercise of the right to review, and
may restrict such review to questions of law.
4.4 According to the State party, the Spanish remedy of judicial review is
broader than the original French procedure, and complies with the
requirements of article 14, paragraph 5, of the Covenant. It points out that
the right to review by a second court does not include the right to
reappraisal of the evidence, but means that courts of second instance
examine the facts, the law and the judicial decision, and, excepting a
finding of arbitrariness or denial of justice, uphold it. The State party
claims that the conviction and sentence of the author were reviewed by the
Supreme Court. It refers to the judgement of the Constitutional Court in the
author's case, which stated that: "The applicant ... failed even, beyond a
mere formal statement of the law, to indicate what specific aspect of the
court judgement he was prevented from having reviewed as a result of the
legal nature of the application for judicial review, inasmuch as all the
grounds cited by him were reviewed, and none was rejected as improper."
4.5 The State party says that the Committee's Views in Gómez Vásquez cannot
be generalized and applied to other cases, since they are restricted to the
specific case in which they were adopted. It also notes the manifest
contradiction existing in international protection of the right to two
levels of jurisdiction arising from the different interpretation of the
European Court of Human Rights and the Human Rights Committee in respect of
the same text.
AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND
MERITS
5.1 With regard to admissibility, the author informed the Committee that the
European Court of Human Rights had acknowledged receipt of his application
in a letter dated 21 September 2001 in which it informed him that his
application might be found inadmissible, since neither article 6, paragraph
1, nor article 13 of the European Convention on Human Rights sets a
requirement for various levels of jurisdiction and since Spain has not
ratified Protocol No. 7 to that Convention. The Court also informed the
author that his case would not be registered as a formal application until
he determined whether or not he wished to maintain his complaint. The author
appended a letter dated 20 December 2002 in which the European Court
informed him that a panel of three judges had decided to strike his
application off the roll, in accordance with article 37, paragraph 1, of the
European Convention on Human Rights.
5.2 With regard to the merits, the author maintains that the placing by the
European Court of Human Rights of a restrictive interpretation on the
content of the right to a second level of jurisdiction should have no effect
on the Committee's jurisprudence regarding the right to review of the
conviction and sentence by a higher court.
5.3 The author asserts that the nature of the application for judicial
review prevents consideration of the facts. Judicial review is a
jurisdictional appeal intended essentially to standardize the interpretation
of the law without constituting a second jurisdiction in that it does not
permit review of the evidence submitted or assessment of the proof on which
the sentencing court based its judgement, but is a review of legal
violations of substance or form or of the assessment of the evidence in
exceptional circumstances. Appeal cannot be made against the grounds for the
judgement and is exceptional and confined strictly to form. The author
maintains that the appeal does not permit genuine review of the conviction
and sentence.
5.4 The author states that pursuant to the Committee's Views in Gómez
Vásquez, the Second Chamber of the Supreme Court, convening in plenary
session on 13 September 2000, referred to the appropriateness of initiating
appeal proceedings before requesting judicial review. The author appended a
copy of Act No. 19/2003, which entered into force in Spain at the end of
December 2003; as mentioned in the Committee's Views in Gómez Vásquez, the
Act generalizes a second level of jurisdiction in criminal cases,
instituting appeals against judgements by provincial courts and the National
High Court. The author indicates that the Act does not cover the military
criminal justice system.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATIONS AS TO ADMISSIBILITY
6.1 In accordance with rule 93 of its rules of procedure, before considering
any claim contained in a communication, the Human Rights Committee must
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 With regard to the State party's assertion that the communication is
inadmissible under article 5, paragraph 2 (a), of the Optional Protocol read
in conjunction with the State party's reservation to this provision of the
Optional Protocol, [FN2] the Committee notes that the author's communication
to the Committee is dated 31 July 2001, that the author submitted a
complaint alleging a violation of the right to a second level of
jurisdiction to the European Court of Human Rights on 27 July 2001, that the
European Court did not register the complaint as a formal application, that
the author requested withdrawal of the complaint on 12 September 2002, and
that the European Court of Human Rights accepted the withdrawal of the
complaint on 3 December 2002.
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[FN2] The official text of the reservation reads as follows: "The Spanish
Government accedes to the Optional Protocol to the International Covenant on
Civil and Political Rights, interpreting article 5, paragraph 2, of the
Protocol to mean that the Human Rights Committee shall not consider any
communication from an individual unless it has ascertained that the same
matter has not been or is not being examined under another procedure of
international investigation or settlement."
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6.3 The Committee notes that the author's complaint is not being considered
and has not been considered or reviewed by the European Court of Human
Rights, and that it was not registered as a formal complaint but was
withdrawn by the author, and that the withdrawal was accepted by the Court
without consideration of the merits of the issues raised by the author. The
Committee concludes that the present communication is not inadmissible under
article 5, paragraph 2 (a), of the Optional Protocol and the State party's
reservation thereto.
6.4 The Committee considers that the complaint raises issues relating to
article 14, paragraph 5, of the Covenant; it decides that it is admissible
and proceeds to a consideration of the merits.
CONSIDERATION OF THE MERITS
7. The Committee notes that the main issue in the penal case against the
author was the assessment of his capacity to perform military duty, and that
means an assessment of facts. The Committee further notes the comments made
by the State party concerning the nature of the remedy of judicial review,
in particular that the court of second instance is limited to an examination
as to whether the findings of the trial court amount to arbitrariness or
denial of justice. As the Committee has determined in previous cases, [FN3]
such limited review by a higher tribunal does not meet the requirements of
article 14, paragraph 5. Therefore, the Committee concludes that the author
is a victim of a violation of article 14, paragraph 5, of the Covenant.
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[FN3] Communication No. 701/1996, Gómez Vásquez v. Spain, decision of 20
July 2000; communication No. 986/2001, Semey v. Spain, decision of 30 July
2003; communication No. 1007/2001, Sineiro Fernández v. Spain, decision of 7
August 2003; communication No. 1101/2002, Alba Cabriada v. Spain, decision
of 1 November 2004.
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8. Accordingly, the Human Rights Committee, acting under article 5,
paragraph 4, of the Optional Protocol to the International Covenant on Civil
and Political Rights, is of the view that the facts before it disclose a
violation of article 14, paragraph 5, of the Covenant.
9. Under article 2, paragraph 3 (a), of the Covenant, the author is entitled
to an effective remedy. The author's conviction must be reviewed in
accordance with article 14, paragraph 5, of the Covenant. The State party is
under an obligation to take the necessary measures to ensure that similar
violations do not occur in future.
10. Considering that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant and that, 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 remedy in the event
that 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.
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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. |
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