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The author of the
communication is Jose Maria Alba Cabriada, a Spanish citizen, born in
Algeciras, Cadiz, in 1972. He claims to be a victim of violations by Spain
of article 14, paragraph 5, and article 26 of the Covenant. The Optional
Protocol entered into force for the State party on 25 April 1985. The author
is represented by counsel.
THE FACTS AS SUBMITTED
2.1 On 4 April 1997 the Cadiz Provincial Court sentenced the author for an
offence against public health to 10 years and 1 day in prison, suspension
from public office, and payment of a fine of 120 million pesetas. The
judgement stated that the author had been under surveillance by agents of
the narcotics squad for alleged participation in the distribution of
narcotic substances. The author was arrested together with an Irish citizen,
from whom 2,996 tablets were confiscated containing a substance that proved
to be an amphetamine derivative known as MDA. The judgement stated that the
author was an intermediary for the Irish citizen in the distribution of
drugs to third parties.
2.2 The author filed an application with the Supreme Court for judicial
review and annulment, alleging violation of his right to the presumption of
innocence and errors in the appraisal of evidence. With regard to the
presumption of innocence, the author alleged that his conviction had been
based on circumstancial evidence and that the conclusions drawn by the court
of first instance were not such as to preclude his innocence. Regarding
errors in the appraisal of evidence, the author alleges that the court found
that the confiscated substance was MDA, while a report prepared by the
Ministry of Health and Consumer Affairs established that the substance was
MDEA.
2.3 In a judgement dated 27 January 1999, the Supreme Court rejected the
application for annulment. Regarding the alleged violation of the
presumption of innocence, the Court stated that it only had a duty to
consider whether there was multiple, duly verified, concomitant, mutually
corroborative evidence, and that the reasoning in the court's conclusions
and deductions was based on logic and experience , in order to ascertain
that the logical inference made by the trial court is not irrational,
capricious, absurd or extravagant, but is in accordance with the rules of
logic and standards of experience. The Court stated that it was strictly
prohibited from reappraising the facts that the court of first instance had
considered as evidence, since, by law, the appraisal function fell within
the exclusive competence of the sentencing court. With respect to the
alleged error of fact in appraising the evidence, the Supreme Court stated
that the Ministry of Health and Consumer Affairs had initially identified
the seized substance as MDMA, but that it had turned out to be MDEA or MDA,
both amphetamine derivatives.
THE COMPLAINT
3.1 The author alleges a violation of the right enshrined in article 14,
paragraph 5, of the Covenant, owing to the fact that the Supreme Court did
not appraise the evidence. According to the author, this limitation
constitutes a violation of the right to review of the judgement and
conviction by a higher tribunal.
3.2 The author also alleges that the Spanish Criminal Prosecution Act
violates article 14, paragraph 5, and article 26 of the Covenant, since
cases involving individuals accused of the most serious crimes are tried by
a single judge (examining court), who, once the relevant investigations have
concluded, transfers the case to the provincial court, where proceedings are
conducted by three judges, who pronounce sentence. The decision may be
appealed on very limited legal grounds only. The court of cassation may not
reappraise the evidence. On the other hand, cases involving individuals
sentenced for lesser offences, with sentences of less than six years, are
investigated by a single judge (examining court), who, when the case is
ready for oral proceedings, transfers the case to a single judge ad quo
(criminal court); this decision may be appealed before the provincial court,
which guarantees effective review not only of application of the law but
also of the facts.
3.3 The author did not make any application to the Constitutional Court for
amparo. He maintains that the long-standing precedent of the Constitutional
Court is to deny applications for amparo, rendering it ineffective. The
author maintains that the Committee's precedent has established that it is
necessary only to exhaust effective remedies actually available to the
author.
OBSERVATIONS OF THE STATE PARTY ON ADMISSIBILITY AND MERITS
4.1 The State party indicates that the author submitted his communication
more than two and a half years after the Supreme Court judgement. It adds
that the author made no application to the Constitutional Court for amparo,
and sought to justify the absence of a domestic appeal by alleging the
existence of extensive and varied precedent such that the remedy of amparo
was denied, and thus ineffective.
4.2 The State party maintains that paragraph 5 of article 14 does not
establish the right for an appeal court to reconduct the trial in toto, but
the right to review by a higher tribunal of the proper conduct of the trial
at first instance, with review of 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 points out that the
European Court of Human Rights has affirmed that State 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 adds 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 points out that this is
precisely what happened in the case of the author: the Supreme Court
judgement noted the existence of evidence establishing the guilt of the
author, noted that the evidence was concomitant and mutually corroborative,
and ascertained that the court of first instance had considered the evidence
in establishing the author's guilt and that the process of deduction had not
been arbitrary but reflected the maxims of logic and experience.
4.5 The State party asserts that the Committee's Views in Cesario G�mez
Vasquez v. Spain, could not be generalized and applied to other cases, since
they were 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.
4.6 The State party concludes that the alleged violation of article 14,
paragraph 5, should be found inadmissible as constituting an abuse of the
right to submit a communication.
4.7 With regard to the violation of article 14, paragraph 5, in connection
with article 26 of the Covenant, the State party cites the Committee's Views
in the G�mez Vasquez case, in which the Committee considered that the
different treatment for different offences did not necessarily constitute
discrimination. It concludes that this part of the communication should be
found inadmissible, under article 2 of the Optional Protocol, since the
allegation was not sufficiently substantiated.
AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS
5.1 The author maintains that he was not required to submit an application
for amparo before the Constitutional Court since such an appeal does not
constitute an effective remedy for the violation reported to the Committee.
The author observes that in his case the State party cited the text of a
Supreme Court judgement in which it was expressly noted that both the
Supreme Court and the Constitutional Court lacked competence to make a fresh
appraisal of the facts and evidence.
5.2 The author indicates that the Committee's Views in the G�mez Vasquez
case show the inadequacy of Spanish legislation in connection with article
14, paragraph 5, of the Covenant, and that the State party has not adopted
measures to rectify that situation, despite the Committee's recommendation.
5.3 The author maintains that he has not asked the Committee to conduct an
in abstracto review of the State party's legislation, but its
inappropriateness to his specific case. He insists that the right to review
includes a reappraisal of the evidence and that the Supreme Court expressly
excluded that possibility, by stating that "� the Constitutional Court, on
an application for amparo, and this review chamber, on appeal, are strictly
prohibited from reappraising the basic facts and evidence, since, pursuant
to article 117.3 of the Constitution and article 741 of the Criminal
Prosecution Act, this function lies exclusively within the competence of the
sentencing court, so that any possible reassessment of the merits of the
evidence would represent an inadmissible invasion of the exclusive
competence of the sentencing court". The author considers that the review by
the Supreme Court was limited to formal and legal aspects of the judgement
and did not constitute a comprehensive review of the judgement and
conviction.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 In accordance with rule 87 of its rules of procedure, before considering
any claims 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 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement, so
that the provisions of article 5, paragraph 2 (a), of the Optional Protocol
do not preclude its consideration of the complaint.
6.3 The State party asserts that the author waited more than two and a half
years after the date of the Supreme Court judgement before submitting his
complaint to the Committee. It appears to allege that the communication
should be considered inadmissible as constituting an abuse of the right to
submit communications under article 3 of the Optional Protocol in view of
the time elapsed. The Committee observes that the Optional Protocol does not
establish any deadline for the submission of communications, and that the
period of time elapsing before doing so, other than in exceptional cases,
does not of itself constitute an abuse of the right to submit a
communication. Neither has the State party duly substantiated why it
considers that a delay of more than two years would be excessive in this
case.
6.4 The State party has alleged that domestic remedies have not been
exhausted, since the author did not file an application for amparo with the
Constitutional Court. The author maintains that it was not necessary to file
such an application, as there was no possibility of success owing to the
existence of extensive and varied precedent that denied the remedy of
amparo, rendering it ineffective.
6.5 The Committee reaffirms its established jurisprudence that it is only
necessary to exhaust those remedies that have some prospect of success. With
regard to the alleged violation of article 14, paragraph 5, of the Covenant,
the Committee notes that both the author and State party accept the text of
the Supreme Court judgement, which states that there is a legal prohibition
preventing the Constitutional Court from reappraising the facts and evidence
introduced at first instance. The Committee therefore considers that an
application for amparo could not be effective with regard to the alleged
violation of article 14, paragraph 5, of the Covenant, and that the author
had exhausted domestic remedies in respect of the alleged violation.
6.6 The State party also maintains that the alleged violation of article 14,
paragraph 5, of the Covenant should be found inadmissible as an abuse of the
right to submit communications. The Committee observes that the State party
has not sufficiently substantiated its view that the author's allegations
constitute an abuse of the right to submit communications, and considers
that the complaint raises issues that may affect the right recognized in
article 14, paragraph 5, of the Covenant, so that this part of the
communication is considered admissible.
6.7 The State party asserts that the alleged violation of article 14,
paragraph 5, in connection with article 26 of the Covenant, should be found
inadmissible on the ground that it has not been sufficiently substantiated.
The author considers that the systems of appeal existing in the State party
in connection with the various types of offence make it possible in some
cases to fully review the judgement while preventing it in other cases. The
Committee observes that the different treatment for different remedies
according to the seriousness of the offence does not necessarily constitute
discrimination. The Committee considers that the author has not
substantiated this part of the communication for the purposes of
admissibility, in view of which it finds it inadmissible pursuant to article
2 of the Optional Protocol.
CONSIDERATION ON THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information supplied by the parties, as provided for in
article 5, paragraph 1, of the Optional Protocol.
7.2 The Committee observes that neither the author nor the State party has
disputed the facts related in connection with the alleged violation of
article 14, paragraph 5, of the Covenant. The Committee observes that the
Supreme Court expressly stated that it was not competent to reappraise the
facts forming the basis for the conviction of the author, a function which
the Court considered the exclusive and sole prerogative of the court of
first instance. Further, the Supreme Court considered whether or not the
presumption of innocence of the author had been violated, and ascertained
that there was evidence of his guilt, that the evidence was multiple,
concomitant and mutually corroborative, and that the reasoning used by the
sentencing court to deduce the liability of the author on the basis of the
evidence was not arbitrary, since it was based on logic and experience. It
is in this context that the Committee must consider whether the review
carried out by the Supreme Court is compatible with the provisions of
article 14, paragraph 5, of the Covenant.
7.3 The Committee notes the comments made by the State party about the
nature of the Spanish 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 [701/1996; 986/2001;
1007/2001], such limited review by a higher tribunal is not in accordance
with the requirements of article 14, paragraph 5. Therefore, in the light of
the limited scope of review applied by the Supreme Court in the author's
case, the Committee concludes that the author is a victim of a violation of
article 14, paragraph 5, of the Covenant.
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.
______________________________
[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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