Christine Chanet (France)
Maurice Glele Ahanhanzo (Benin), Ms. Elisabeth Palm (Sweden), Mr.
Hipolito Solari Yrigoyen (Argentina)
RAPPORTEUR: Mr. Ivan
MEMBERS: Mr. Abdelfattah
Amor (Tunisia), Mr. Mr. Nisuke Ando (Japan), Mr. Prafullachandra
Natwarlal Bhagwati (India), Alfredo Castillero Hoyos (Panama), Mr.
Edwin Johnson Lopez (Ecuador), Mr. Walter Kalin (Switzerland), Mr.
Ahmed Tawfik Khalil (Egypt), Mr. Rajsoomer Lallah (Mauritius), Mr.
Michael O’Flaherty (Ireland), Mr. Rafael Rivas Posada (Colombia),
Sir Nigel Rodley (United Kingdom), Ms. Ruth Wedgwood (United
States), Mr. Roman Wieruszewski (Poland)
Lozano Araez v. Spain, Comm. 1323/2004, U.N. Doc. A/61/40, Vol. II,
at 612 (HRC 2005)
Lozano v. Spain
Report of the Human Rights Committee, U.N. GAOR, 61st Sess., Supp.
No. 40, U.N. Doc. A/61/40, Vol. II, Annex VI, sect. Z, at 612
Jose Luis Mazón Costa
1. The authors of the
communication, dated 4 November 2002, are Armando Lozano Aráez, Francisco
Aguilar Martínez, José Lozano Rodríguez, Felicita Baño Franco and Juana Baño
Franco. They claim to be victims of a violation of article 14, paragraph 5,
of the Covenant by Spain. The Optional Protocol entered into force for Spain
on 25 April 1985. The authors are represented by counsel, Mr. Jose Luis
2.1 On 26 February 1991, the authors created a limited company, "A.B.L.
Alimentación, S.L.", domiciled in Spain, with the trade purpose of producing
and repairing canned food machinery. In November 1993, this company incurred
debts amounting to almost 8,000,000 PTA (48,000ˆ approx.) with two other
commercial companies, "Comercial Stainless Steel, S.A." and "Comercial
Industrial García, S.A." (creditor companies). In March 1994, the authors
created a new commercial company with the same trade purpose, the same
premises, machinery and workers as the former company. According to the
judgement of the Court of First Instance of Murcia, through this operation,
the authors "emptied the previous company of every content, asset and
activity without liquidating or dissolving it."
2.2. On 25 May 2001, the Criminal Court of First Instance (Juzgado de lo
Penal) of Murcia, convicted the authors for concealment of property to the
prejudice of creditors (alzamiento de bienes) to four months imprisonment.
The judgment made no reference to the author's civil liability.
2.3 The sentence was appealed by the representatives of both creditor
companies, which claimed inclusion of civil liability of the authors for the
amounts due. The public prosecutor adhered to this appeal. On 20 October
2001, the Court of Appeal (Audiencia Provincial) of Murcia upheld the
conviction of the authors and additionally declared their liability,
considering that, according to existing evidence, the debt was due and
payable, and sentenced them to pay 9,163,330 PTA (55,000ˆ approx.) to the
creditor companies as compensation for damages.
2.4 The authors acknowledge that they did not file an appeal (amparo) in the
Constitutional Court. They consider this remedy to be futile, because the
Constitutional Court has ruled that the fact that an accused acquitted at
the first instance who is later convicted by a court of second instance,
without possibility to appeal, is not contrary to article 14, paragraph 5,
of the Covenant. The jurisprudence of the Constitutional Court relies on the
assumption that the judges of the Court of Appeal have a better insight,
experience and skills than those of the lower court.
3. The authors claim a violation of article 14, paragraph 5, of the
Covenant, because the Court of Appeal aggravated their conviction, depriving
them of the possibility of having this conviction reviewed by a higher
tribunal. According to article 847 of the Spanish Criminal Procedure Act (Ley
de Enjuiciamiento Penal), no appeal is possible against the judgments of the
Court of Appeal (Audiencia Provincial). The authors contend that, unlike
other States parties, Spain has not made any reservation to article 14,
paragraph 5, of the Covenant.
CONSIDERATION OF THE COMMITTEE
4.1 Pursuant to rule 93 of its Rules of Procedure, before considering any
claim contained in a complaint, the Human Rights Committee must determine
whether it is admissible under the Optional Protocol to the Covenant on
Civil and Political Rights.
4.2 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.
4.3 With regard to the alleged violation of article 14, paragraph 5, the
Committee recalls that this provision enshrines the right to appeal a
criminal conviction to a higher court. The Committee notes that the Court of
Appeal reviewed and confirmed the authors' criminal conviction, which was
not imposed at the appellate level but at first instance level. The
imposition of compensation for damages does not amount to an aggravation of
the criminal conviction but is of civil nature. It, therefore, falls outside
the scope of article 14, paragraph 5. Accordingly, the Committee finds that
this claim is incompatible ratione materiae with article 14, paragraph 5, or
the Covenant, and declares it inadmissible under article 3 of the Optional
4.4 The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 3 of the Optional
(b) That the decision be transmitted to the State party and to the author.
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.