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1. The author of the
communication, which is dated 12 February 2001, is Héctor Luciano Carvallo
Villar, a Chilean national, who alleges violation by Spain of articles 2,
paragraphs 3 (a) and (b); and 14, paragraphs 1, 2, 3 (d) and 5, of the
Covenant. The author is represented by counsel, Luis Sierra y Xauet.
FACTUAL BACKGROUND
2.1 On 25 June 1997, the author was sentenced by the Barcelona Provincial
Court to eight years' imprisonment and a fine for offences against public
health (drugs trafficking). The author applied for judicial review before
the Supreme Court, which rejected the application in a ruling of 14 July
1999.
2.2 While the review application was being prepared, the author asked to be
assisted by counsel of his choice. His counsel sought the consent of the
court-appointed counsel, who received a sum of money from the author as a
fee. The court-appointed counsel did not consider the fee adequate, however,
and would not consent to the change. Consequently, the court did not accept
the author's proposed new counsel, who was unable to act in his defence. The
application was thus filed by counsel not of the author's choice.
2.3 The Supreme Court's judgement was communicated to the court-appointed
procurador (court representative), Fontanilles Fornielles, on 2 September
1999, but the author was not informed. By the time the counsel he had
appointed heard about the judgement and informed the author, the deadline
for submitting an application for amparo - 20 days from the date of
notifying the procurador - had passed. The author's appointed attorney
nonetheless submitted an application for amparo on 31 January 2000, but it
was found inadmissible ratione temporis by the Constitutional Court on 5 May
2000.
2.4 The author states that he was convicted on the basis of voice
identifications by the Provincial Court from monitored telephone calls. He
alleges that the phone-tap evidence was handled without adequate safeguards
as required in article 14, paragraphs 1 and 2, of the Covenant, on the
following grounds:
(a) The examining magistrate did not listen to all the tapes but was given
selected recordings chosen by the police. Under the Criminal Procedure Act,
telephone communications must be considered in the presence of the judge,
the secretary - who should prepare a record - and the accused. Moreover, any
transcription of items of interest or extracts of monitored telephone
conversations must be done by the examining magistrate. Yet in this case the
Court was provided with transcribed extracts of calls which had been
selected by the police and merely noted by the secretary;
(b) The judge examined this evidence in the absence of the accused;
(c) The phone-tap warrant failed to provide the requisite grounds for the
measure, although according to the judgement, it contained the basic
information required such as the offence and the period of monitoring. This
constituted a violation of the right to privacy of correspondence under the
Constitution, for the fact that it referred to the offence alone and failed
to provide any evidence to substantiate the measure or to mention that it
was a criminal matter or to explain in what way it concerned the person
under investigation, effectively made it an arbitrary measure;
(d) The evidence was not presented in accordance with the rules of
documentary evidence since it was not reproduced at the trial, and it was
not established that the calls had been made by the accused. Neither the
author nor his co-defendant admitted that the author's voice was one of
those to be heard on the tapes. Moreover, the expert voice analysis of the
tapes failed to establish the degree of similarity between the author's
voice and the voice on the tapes. The fact that the Court found the voices
similar was only one element among others in the body of evidence, and could
not have carried enough weight to convict the author and overturn the
presumption of innocence.
2.5 The author states that this matter has not been submitted to any other
procedure of international investigation or settlement.
THE COMPLAINT
3.1 The author alleges a violation of his right to an effective remedy under
article 2, paragraphs 3 (a) and (b), of the Covenant, on the grounds that
the Supreme Court judgement of 14 July 1999 was not conveyed to him in time
to submit an application for amparo.
3.2 He also claims a violation of article 14, paragraphs 1 and 2, for the
absence of guarantees in considering the evidence upon which his conviction
was based: the phone tap was not adequately supervised by the court or
authorized by a duly substantiated warrant and the evidence was not
reproduced in accordance with the rules of documentary evidence. He was thus
deprived of a defence and denied the right to presumption of innocence.
3.3 The author alleges a violation of the right to be assisted by counsel of
his choice under article 14, paragraph 3 (d), of the Covenant: the Court
should have accepted the author's designated counsel without seeking the
consent of the court-appointed counsel, a requirement that is not to be
found anywhere in domestic or international law. The matter of consent
between lawyers should not amount to a denial of the right to counsel of
one's choice.
3.4 The author also alleges a violation of article 14, paragraph 5, of the
Covenant, on the grounds that the Supreme Court failed to review or
scrutinize the evidence considered by the trial court or to assess whether
it was lawful or sufficient.
STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY, AND AUTHOR'S COMMENTS
4. In its submission of 6 May 2002, the State party contests the
admissibility of the communication on the grounds that the author has not
exhausted domestic remedies. In the lower court the author was represented
by a court-appointed procurador, Mr. Fontanilla Fornielles, who gave his
consent for another procurador, Ms. Echevarría, to deal with the application
for judicial review. The latter subsequently declined to act as procurador
for the author and asked the Court to appoint a procurador. The Court again
appointed Mr. Fontanilla Fornielles, to whom the Supreme Court judgement was
communicated on 2 September 1999. By the time the application for amparo was
submitted on 31 January 2000, the 20-day deadline for applications to the
Constitutional Court was long past and the application was therefore
rejected as time-barred.
5.1 The author responded to the State party's submissions on 5 July 2002. He
states that the Supreme Court judgement was communicated to the
court-appointed counsel on 2 September 1999. When the author's appointed
attorney learnt that judgement had been handed down, he went to the
Barcelona Provincial Court on 19 January 2000, where he was given a copy.
That should be the date from which the deadline for the application for
amparo should be calculated, since that was the date when the defence
counsel appointed by the author was notified of the judgement. Consequently,
the application for amparo submitted on 31 January 2000 was in time and
should have been admitted.
5.2 The author also draws attention to the special nature of the amparo
application and argues that, in order to exhaust domestic remedies, such
remedies must have some prospect of success.
6. In further comments dated 13 September 2002, the State party points out
that, in the Spanish system, judgements are communicated to the procurador,
who handles procedural matters on the party's behalf, and not to counsel,
who is responsible for the technical side of the party's defence. Provision
of a copy of the judgement should not be confused with formal notification
thereof.
STATE PARTY'S SUBMISSIONS ON THE MERITS, AND AUTHOR'S COMMENTS
7.1 In its submission of 4 September 2002, the State party maintains that
there has been no violation of the Covenant. In respect of the allegations
of a violation of article 14, paragraphs 1 and 2, and with reference to the
author's contestation of the phone-tap warrant, it states that the
Provincial Court judgement in fact includes the legal basis for the action:
there are details of the prima facie evidence, the telephone number, the
person under investigation and the period authorized, as well as the
requirement for original tapes, a reference to legal principles and a
description of the offence under investigation. The Supreme Court found the
phone tap to be in accordance with the law. The State party also refers to
those points in the lower court judgements which showed the reasoning that
convinced the Court that the person speaking in the taped conversations was
the author, and concludes that the oral hearings were conducted in full
accordance with the principle of adversarial procedure.
7.2 As to the allegations concerning article 14, paragraph 3 (d), the State
party points out that the author was assisted in the review proceedings by a
court-appointed counsel at his own express request, on the grounds of lack
of financial means. He later changed his mind and, making clear that he had
the means, asked to appoint counsel of his choice. However, since he now had
the means to do so, he was required to pay a fee to the court-appointed
counsel for the work that had been done. The author did not wish to pay a
fee and he does not appear to have discussed the matter with the Bar
Association. In the course of the domestic proceedings, the author did not
seek the consent of the court-appointed counsel (Bar Statute, art. 33) or
discuss his obligation to pay the court-appointed counsel's fees or the
amount thereof. Consequently, the author cannot hold the Spanish authorities
responsible for his changes of mind and his own acts or omissions.
7.3 As to the allegations of a violation of article 14, paragraph 5, the
State party points out that this provision does not give the right to a
second hearing with a full rerun of the trial, but the right to a review by
a higher court of the conduct of the trial at first instance and
verification of the proper application of the rules in arriving at the
conviction and the sentence imposed in any given case. The review procedure
may be governed by domestic law, which shall establish its scope and
limitations.
7.4 The Supreme Court reviewed the case to establish whether any prosecution
evidence existed and concluded that it did. It also verified that the
prosecution evidence had been lawfully obtained and concluded on reasoned
grounds that such was the case. It also reviewed the case to ensure that the
guilty verdict and conviction had not been the result of arbitrary,
irrational or absurd considerations and concluded on reasoned grounds that
the Court's consideration had been logical and rational. In respect of the
phone-tap tapes, the review judgement states:
"The sentencing Court, in concluding that it was [the author's voice],
reasons as follows: when he makes the call, he identifies himself using that
name; he is so addressed by the co-defendants; his is the name under which
the telephone he is using is registered; and the Court itself,
notwithstanding the inconclusive nature of the voice-identification test
suggested by the accused himself, recognizes Luciano's voice as that of the
accused it has seen and heard in the oral hearings. Thus the Court had
before it not only evidence of the reality of the cocaine dealing but also a
whole body of circumstantial evidence arising out of the statements of a
co-defendant, as well as direct evidence. The Court applied logical
reasoning in order to arrive at an understanding of how the various
elements, taken together, demonstrate the appellant's involvement in the
matter. These are the points relating to the right to presumption of
innocence that this review Court may examine and verify."
7.5 As to the phone-tap warrant, the Supreme Court states:
"The monitoring of co-defendant Antonia Soler Soler's telephone was ordered
on the basis of a detailed police report describing the frequent contacts
between that subscriber and the man living with her, and individuals who had
been arrested for possession of drugs; the warrant dated 27 October 1993
contains a general argument based on the applicable legislation and a
specific argument relating to the subscriber, giving details of the number
and its location and providing a time frame for reporting the results. No
more than 10 days later, the police provided the court with a seven-page
report on the results of the phone tap, detailing each day's calls, and on
12 November they uncovered the attempt to set up a cocaine deal which gave
rise to this case and in relation to which the Court was able to hear during
the trial the original tapes of the conversations, which led to the
conviction referred to in the earlier judgement. Thus the
telephone-monitoring procedure cannot be said to have failed to meet any of
the conditions imposed to prevent violation of this constitutional right."
7.6 At no time during proceedings in the domestic courts did the author or
his appointed counsel express any doubts concerning the scope or proper
conduct of the judicial review, or bring any complaint against the Supreme
Court for violation of the right to a second hearing.
8.1 In his comments of 24 November 2002, the author restates his claims
concerning the judicial review. In his view, this remedy is one which
precludes any defence, since it does not allow the submission of new
evidence that might arise later or any weighing of the evidence. He also
points out that the State party makes no reference in its reply to his
complaint to the Committee of interference in private communications, and he
therefore takes it the State party admits that violation of the Covenant.
8.2 The author repeats his earlier arguments. He points out in particular
that the Supreme Court did not accept his change of counsel, thereby denying
him the right to counsel of his choice. It also meant the procurador he had
appointed had to decline to represent him. Her withdrawal was thus not
voluntary but forced upon her by the Supreme Court.
8.3 In the Spanish system, a convicted person must be notified of the
judgement. In this case, the author was arrested and went to prison because
he had not been notified of a judgement. When the Supreme Court judgement
reached the Provincial Court, the author's appointed counsel had not ceased
to represent him, as it was he who had defended the author in the Provincial
Court.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
9.1 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 the communication is admissible under the Optional
Protocol to the Covenant.
9.2 The author alleges a violation of the Covenant on the grounds that the
Supreme Court judgement was not communicated to him in time to submit an
application for amparo. The State party maintains that the judgement was
sent to the procurador who had handled the case. In the Committee's view,
the State cannot be held responsible for the procurador's failure to notify
the author of the judgement in time for him to submit the relevant appeals.
The Committee therefore finds that this part of the communication is not
duly substantiated and is therefore inadmissible under article 2 of the
Optional Protocol.
9.3 As to the claims that the author was denied representation by counsel of
his choice in the judicial review procedure, and that the Supreme Court
judgement was not sent to him directly, the Committee notes that the author
made no appeal to the Spanish authorities on these grounds, and therefore
finds that this part of the communication should be declared inadmissible
for non-exhaustion of domestic remedies, in accordance with article 5,
paragraph 2 (b), of the Optional Protocol.
9.4 With regard to the claims of an absence of guarantees in respect of the
evidence upon which the conviction was based, the Committee finds that, in
view of the failure to submit an application for amparo, through no fault of
the State, these allegations should also be declared inadmissible for
non-exhaustion of domestic remedies.
9.5 With regard to the alleged violation of article 14, paragraph 5, it is
clear from the judgement of the Supreme Court that the Court looked very
closely at the Provincial Court's assessment of the evidence. In this
regard, the Supreme Court considered that the evidence against the author
was sufficient to set aside the presumption of innocence. [FN1] The claim
regarding article 14, paragraph 5, is therefore, insufficiently
substantiated for purposes of admissibility. The Committee concludes that
this claim is inadmissible under article 2 of the Optional Protocol.
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[FN1] Cf. communication No. 1399/2005, Cuartero v. Spain, decision dated 7
July 2005, para. 4.4.
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10. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and 5, paragraph
2 (b), of the Optional Protocol;
(b) That the decision be transmitted to the State party and to the author.
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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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