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1.1 The present case refers
to two communications against Spain in connection with the same events. The
author of communication No. 1329/2004 (first communication), dated 7 October
2002, is José Pérez Munuera, a Spanish national, born in 1957. The author of
communication No. 1330/2004 (second communication), dated 7 April 2003, is
Antonio Hernández Mateo, a Spanish national, born in 1940. The authors claim
a violation by Spain of article 14 of the Covenant. The Optional Protocol to
the Covenant entered into force for the State party on 25 April 1985. The
authors are represented by counsel, José Luis Mazón Costa.
1.2 On 31 January 2005 the Special Rapporteur on New Communications and
Interim Measures, acting on behalf of the Committee, acceded to the State
party's request that the admissibility of the communication should be
considered separately from the merits.
1.3 Under rule 94 of its rules of procedure, the Committee has decided to
consider the two communications together.
FACTUAL BACKGROUND
2.1 Mr. Hernández was the owner of a construction company that engaged in
the building and refurbishment of dwellings. In January 1998 he instructed
his employee, Mr. Pérez Munuera, to fill out two forms, which were then used
to terminate the contract of employment of an Algerian citizen, Abdelkader
Boudjefna, while he was on vacation in Algeria. Mr. Hernández relied on
these documents in subsequent proceedings for unfair dismissal brought
against him by Mr. Boudjefna. Mr. Boudjefna subsequently brought a criminal
action against the authors for forgery.
2.2 On 10 February 2000 the authors were convicted by Murcia Criminal Court
for involvement in the preparation of two documents terminating Mr.
Boudjefna's current employment, without his consent, and, in the case of Mr.
Hernández, for having made use of them subsequently in a trial. In the first
document Mr. Boudjefna said that he had received 100,000 pesetas in
compensation, and in the second document supposedly conveyed his desire to
terminate his contract. The judgement stated that the signatures on the
documents, forgeries of Mr. Boudjefna's signature, had been written by one
of the two accused or by another individual at their instigation. Mr.
Hernández was convicted for submission of forged documents in the
proceedings together with an ongoing offence of misrepresentation, and was
sentenced to 22 months' imprisonment. Mr. Pérez Munuera was convicted, as
the author of the forgery of a private document, to 16 months' imprisonment.
Mr. Hernández maintained throughout that he bore no responsibility
whatsoever for the forgery of the signature. Mr. Pérez Munuera volunteered
that he had drafted the documents on the order of his employer but stated
that he had not forged Mr. Boudjefna's signature. The experts for the
prosecution stated in their report that the complainant, Mr. Boudjefna, was
not the author of the signature on the two documents, and that it was not
possible for them to determine who was the author of the signatures on the
documents; they concluded that the signatures had been written by one of the
accused or by another individual at their instigation. The experts who
appeared in the proceedings at the request of the authors found that the
signature appearing on the documents was indeed that of Mr. Boudjefna.
2.3 The judge based his conviction on the report of the experts for the
prosecution but did not hear the experts for the defence, citing lack of
time. The prosecutors were allowed to put questions to the prosecution
experts, but the defence was not allowed to question the defence experts,
who were merely permitted to confirm their reports. In the record of the
proceedings, which was not verbatim, there is no mention of the judge's
refusal. The lack of opportunity to question the defence experts was noted
in the appeal, but the Murcia Provincial Court, in its judgement of 26 April
2000, found that the alleged limitations on the questioning had not in any
way impaired the defence presented by the defendants since the experts had
submitted their reports in writing and had confirmed them during the
proceedings. The court found that counsel for the defence had not formulated
in writing the questions to be put to the experts, and that the decisive
factor was that the experts had confirmed their reports during the
proceedings, clarifications being "quite superfluous". The authors filed an
appeal before the Constitutional Court for amparo, claiming a violation of
the principle of equality of arms. On 16 October 2000 the Constitutional
Court rejected the appeal. The Court found that the authors had not
sufficiently demonstrated that questioning the experts was essential to
their defence, since defence counsel had not prepared in writing the
clarifications and observations sought.
2.4 The authors claim that they did not enjoy the basic guarantees of a
criminal trial, such as the preparation of a verbatim record, which impaired
the effectiveness of their right of appeal. The record failed to reflect the
judge's refusal to allow the defence to question the defence experts.
2.5 The Criminal Procedure Act, in its article 790.1, grants prosecutors
advantages in terms of investigation that are not granted to the defence.
Making use of this privilege, the prosecutor asked one of the authors to
give a statement as a defendant. This article of the Act was found to be in
accordance with the Constitution by the Constitutional Court on 15 November
1990.
THE COMPLAINT
3.1 The authors claim that they were convicted without there being any proof
of their involvement in the forgery of Mr. Boudjefna's signature, in a
violation of their right to the presumption of innocence, set forth in
article 14, paragraph 2, of the Covenant. There being no proof of who had
written the signatures, the element of doubt favoured the authors. The
burden of proof lay with the prosecution, and it was not for the defendants
to prove their innocence. In the case of Mr. Pérez Munuera, the only
evidence against him was his own statement as a defendant, in which he
acknowledged that on the orders of Mr. Hernández he had prepared two
documents, one relating to termination of the contract of employment and the
other to a financial settlement. As a subsidiary point, the authors also
consider that the State party violated article 14, paragraph 1, in that
their conviction on the basis of insufficient evidence also infringes the
principle of due process.
3.2 The authors allege a violation of article 14, paragraph 3 (e), of the
Covenant, given that there was unequal treatment in the questioning of the
experts for the prosecution and the experts for the defence. The judge
listened to the prosecution experts for more than an hour, but, when the
turn of the defence experts came, he merely allowed them to endorse their
reports, and denied the defendants' counsel the right to freely question the
defence experts. Both the provincial court and the Constitutional Court
restricted the right of the defence to question the experts to the
submission by the defence in writing of the questions that it was proposed
to put and to the questions being relevant. Such restriction lacks any legal
basis. According to the authors, the fact that the court concluded that the
questions which their defence counsel proposed to put to the defence experts
were superfluous means that the court acknowledged that there had been no
equality in the questioning of the defence experts.
3.3 The authors also allege a violation of article 14, paragraph 1, since
there was no verbatim record of the proceedings reflecting the constraints
placed on the questioning of the defence experts. This is a general practice
supported by the law, and, as such, was not raised before the Constitutional
Court, given that there was no prospect of a successful outcome.
3.4 The authors also claim a violation of article 14, paragraph 1, of the
Covenant, since there is a regulation in the Criminal Procedure Act which
discriminates between prosecutors and defendants, permitting the prosecutor
to pursue additional evidentiary formalities at the conclusion of the
investigation phase, a right which defendants are denied. This peculiarity
arises in summary criminal proceedings. The prosecutor made use of this
privilege to request the taking of a statement from one of the authors as a
defendant.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 The State party claims that the communication is inadmissible as it is
incompatible with the provisions of the Covenant and constitutes an abuse of
the right to submit communications. The State party indicates that the
authors' principal complaint relates to the supposed inability of the
defence to question its experts during the oral proceedings, the remainder
of the complaints being subsidiary, and adds that the authors' assertions
are flatly contradicted by the record of the oral proceedings. The record of
the oral proceedings is a document indicating what took place during the
hearings and is validated by the signature and seal of the secretary of the
court, who certifies the record of the oral proceedings.
4.2 Under article 788.6 of the Criminal Procedure Act, the records must
reflect the essential content of the evidence examined, its impact and the
claims to which it gives rise, and the decisions taken. The State party
indicates that the record was signed by counsel for the defence, without his
raising any objection. This contradicts the assertion by the authors that
the court supposedly acknowledged the lack of equality in the questioning of
the defence experts. The State party adds that the expert reports submitted
by the authors were incorporated into the proceedings and endorsed in the
oral hearings, without the authors having indicated, either before the
domestic courts or before the Committee, what additional clarifications they
sought. The State party indicates that the appeal court noted in its
judgement that the authors had not specified what observations or
clarifications were of interest to them, and that the experts selected by
the authors attended the trial and were able to confirm their reports in
person. The court also indicated that the record reflected "the various and
extensive questions put by the defence, and, as a result, the full
opportunities available to make arguments".
4.3 The State party concludes that the attack (sic) by the authors impugning
the authenticity of the record, without offering any evidence, is
incompatible with article 14 of the Covenant and with the requirement for
proceedings to be public, this having been observed in the case of the
authors, bearing in mind that the record of the oral proceedings is signed
and sealed by the secretary of the court, who certifies the record. The
State party also maintains that the authors' complaint constitutes an abuse
of the right to submit communications because: it contradicts a public
document which provides an authentic record of the oral proceedings in the
trial and which was signed without objection by the authors' defence
counsel; it alleges events that were not specified or proven in domestic
appeals; and it refers to events that took place almost six years earlier
and in respect of which there was a final judgement by the Constitutional
Court in October 2000, there being a manifest delay in the submission of the
communication.
AUTHORS' COMMENTS ON THE STATE PARTY'S OBSERVATIONS
5.1 According to the authors it is inapposite for the State party to have
affirmed that the record of the oral proceedings was complete or verbatim
and not a summary record. Mere observation of the record suggests that it is
in fact a summary. The summary nature of the record is expressly provided
for by article 743 of the Criminal Procedure Act. According to the authors,
the State party's observations contradict Spanish domestic legislation and
reflect a lack of good faith by the State party. They note that in the
application to the Constitutional Court for amparo they claimed that the
lack of a verbatim record resulted in an absence of legal guarantees. They
add that it was discriminatory for the State party not to ensure a verbatim
record in criminal proceedings while so doing in civil proceedings, as
acknowledged in Act No. 1/2000 of 7 January 2000. They consider that the
absence of a verbatim record violates the right to due process in accordance
with article 14, paragraph 1, of the Covenant.
5.2 The authors add that, when the appeal court stated that the authors'
counsel had not formulated the observations or allegations that they wished
to put to the experts in the oral proceedings and that such clarifications
were quite superfluous, it acknowledged that there were constraints on the
right to question the defence experts.
5.3 The authors specify that the four handwriting experts, two for the
prosecution and two for the defence, were all summoned to attend the
hearings by the judge, that is to say, the experts for the defence were
present when the experts for the prosecution were questioned. They add that
questioning of a prosecution expert by the prosecutor and by the defence
counsel began, but the judge allowed the defence experts to comment on the
testimony of the prosecution experts although it was not their turn to be
questioned. The prosecution experts having testified for approximately an
hour, once it was the turn of the defence experts to testify, the judge,
immediately after they had confirmed their reports and made short
statements, interrupted the questioning, stating that there was no more
time. The questions that the defence counsel intended to put were related to
the subject matter of the testimony.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 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 that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2 (a), of the Optional Protocol.
6.3 The Committee notes the authors' complaint that Spanish criminal
procedure legislation allows the prosecutor the option of requesting
additional evidentiary formalities after the investigation phase has
concluded. Nevertheless, the authors have not explained what specific harm
was caused to them by the fact that the prosecutor made such a request once
the investigation had concluded. Accordingly, the Committee concludes that
the authors may not consider themselves victims within the meaning of
article 1 of the Optional Protocol in respect of the aforementioned
complaint and finds this part of the communications submitted by the authors
inadmissible in accordance with article 1 of the Optional Protocol.
6.4 In connection with the authors' complaint that they were convicted on
the basis of insufficient evidence against them, the Committee recalls its
jurisprudence to the effect that it is in principle for the courts of States
parties to evaluate the facts and evidence, unless the evaluation of the
facts and evidence was manifestly arbitrary or amounted to a denial of
justice, circumstances that do not obtain in the case of the authors. The
Committee notes that the copy of the record of the proceedings submitted by
the authors contains the following: testimony by one of the defence experts
in response to questions from the prosecution; a section on questions by the
defence to one of the prosecution experts; a further section on questions
from the defence to the expert appointed by the court; and another on
questions by the defence to a defence expert and the corresponding reply.
The Committee also notes, from the copy of the judgement in first instance
submitted by the authors, that the evidence against them did not consist
only of expert reports. The Committee considers, accordingly, that the
authors have not sufficiently substantiated the other complaints under
article 14, paragraph 1, of the Covenant for the purposes of admissibility
and finds that the communications are inadmissible under article 2 of the
Optional Protocol.
7. The Human Rights Committee therefore decides:
(a) That the communications are inadmissible under articles 1 and 2 of the
Optional Protocol;
(b) That this decision shall be communicated to the State party, to the
authors of the communications and to their counsel.
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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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