AS TO THE ADMISSIBILITY OF
Application No. 25787/94
by Pablo ARRABAL
against Spain
The European Commission of Human Rights sitting in private on
15 January 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 October 1994 by
Pablo ARRABAL against Spain and registered on 25 November 1994 under
file No. 25787/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
24 August and 10 October 1995 and the observations in reply
submitted by the applicant on 20 September and
27 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
a. Particular circumstances of the case
The applicant is a Spanish citizen born in 1964 and resident in
Valladolid. He is a barrister and has been a member of the Bar of
Madrid since 1989. The facts, as submitted by the parties, may be
summarised as follows:
Since 1990 the applicant has lived in Valladolid, where he works
in the export trade. In November 1993, the applicant decided to
establish himself as a barrister (abogado) in Valladolid. On
26 November 1993, he addressed a letter to the Valladolid Bar informing
them that he was a member of the Bar of Madrid and that he intended to
join the Valladolid Bar in January 1994. On 3 January 1994, the
applicant filed a membership application with the Valladolid Bar and,
on 11 January 1994, he paid the Valladolid Bar a membership fee
amounting to 100.000 pesetas. The competent official at the Valladolid
Bar told the applicant that he would formally become a member of the
Valladolid Bar in just a few days.
While waiting for the Valladolid Bar to deal with the membership
application, the applicant carried out several acts for the practice
of his profession. To that end, he rented an office in Valladolid and
put up a plate with his name and the word "lawyer" written on it. On
3 January 1994, the applicant sent several letters to some companies
informing them about his new professional office and telephone number.
He signed his letters with his name, followed by "lawyer, enrolled in
Madrid/Valladolid". On 22 January 1994, the applicant requested the
Valladolid Bar to speed up the membership application.
On 25 January 1994, the applicant received a letter from the
Valladolid Bar informing him that his membership application had been
rejected, and accusing him of practising as a barrister without being
registered with the local Bar. In February 1994, the Valladolid Bar,
invoking Article 572 of the Spanish Criminal Code, introduced a
criminal complaint accusing him of practising law without being
registered with the local Bar.
On 22 April 1994, the applicant was acquitted by the "Juzgado de
Instrucción" n° 2 of Valladolid. The judgment indicated that the
applicant had only carried out "preparatory acts" in order to practise
his profession in the future and had not shown at any time any
intention of practising law in Valladolid without being properly
registered with the local Bar. The court stated that the applicant
lacked any "animus delicti".
The Valladolid Bar lodged an appeal with the "Audiencia
Provincial". On 30 May 1994, the applicant was convicted and ordered
to pay a fine of 10.000 pesetas, with one day of imprisonment in
default. The court stated that even if no direct evidence proved that
the applicant had been providing legal advice, this activity could be
inferred from circumstantial evidence. In this respect, the court
noted that he had previously moved the location of his professional
office (despacho profesional) in Valladolid. It was also proved that
in his new professional office in Valladolid he put up a plate with the
word "lawyer" on it and had sent several letters to local companies
informing them of the address and telephone number of his new
professional office. The applicant appealed to the Constitutional
Court, alleging the infringement of Articles 24.2 (presumption of
innocence) and 25 (principle of legality) of the Spanish Constitution.
By decision of 15 September 1994, the "amparo" appeal was rejected on
the ground that the question at issue fell within the jurisdiction of
the ordinary courts.
By letter of 29 June 1994, the applicant withdrew his enrolment
in the Valladolid Bar and asked for the reimbursement of the
100.000 pesetas paid by way of fee. On 26 July 1995, the Valladolid
Bar reimbursed the 100.000 pesetas.
b. Relevant domestic law
According to Article 572.2 of the Spanish Criminal Code:
"A fine of 1.500 to 15.000 pesetas will be imposed on:
...
A qualified or authorised person who carries on his
profession without being registered with the respective
official professional council, corporation or association,
as far as this requirement is prescribed by law."
COMPLAINTS
Before the Commission, the applicant alleges a violation of
Article 7 of the Convention. He points out that, according to the
case-law of the Spanish Supreme Court, "preparatory acts" for the
future practice of a profession do not constitute an offence under
criminal law. Furthermore, Article 1 of the Spanish Criminal Code
states that no one shall be convicted of an offence if he did not act
with criminal intent. At the trial it was proved beyond all doubt that
he had carried out the "preparatory acts" without any criminal intent.
The applicant also invokes Article 13 of the Convention insofar
as the Constitutional Court declined to review the case and no other
domestic remedy was available.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 October 1994 and registered
on 25 November 1994.
On 15 May 1995, the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para. 2
(b) of the Rules of Procedure.
The Government's written observations were submitted on 24 August
and 10 October 1995. The applicant replied on 20 September and
27 October 1995.
THE LAW
1. The applicant complains that he was convicted of having practised
as a barrister without registration although he had carried out only
"preparatory acts" which do not constitute an offence according to the
case-law of the Spanish Supreme Court. He invokes Article 7 para. 1
(Art. 7-1) of the Convention, which reads as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
was committed."
The Government observe that the Supreme Court case-law which the
applicant quotes makes reference to cases of offence, not of petty
offence, since the proceedings for petty offences are not heard by the
Spanish Supreme Court, but by the first instance court and by the
"Audiencia Provincial" on appeal. Contrary to the applicant's
submissions, the commission of a petty offence does not require the
payment of fees by clients. In the present case, the imposed penalty
was not deprivation of liberty but a pecuniary fine of a minimum
amount. The Government recall that, according to its case-law, the
Commission is not competent to deal with an application alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights and freedoms set out in the Convention.
Furthermore, it is for the national courts to assess the evidence
before them. In the Government's view, while one can have different
views as to the severity or leniency in the determination of the facts
constituting the offence of illegal professional practice under Article
572.2 of the Spanish Criminal Code, the judgment of the Audiencia
Provincial cannot be considered at all as being contrary to the law.
The applicant submits that according to Article 5 (Art. 5) of the
Spanish Criminal Code a suspect can be prosecuted only if a petty
offence has been completed and according to the Spanish case-law there
is completion of a petty offence only if the client has paid some fee.
Thus preparatory acts for the future practice of a profession do not
constitute an offence under Spanish law. That was the reason why he
was acquitted in first instance. He insists that he never had any
clients nor charged any fees. He only performed preparatory acts for
the future practice of the profession of barrister but he did not
practise the profession itself. He considers that he has been wrongly
convicted, in violation of Article 7 para. 1 (Art. 7-1) of the
Convention, for performing bona fide preparatory acts for his
profession.
The Commission recalls that Article 7 para. 1 (Art. 7-1) of the
Convention, which prohibits the retroactive application of the criminal
law and the retroactive imposition of heavier penalties to the
detriment of the accused, also enunciates in a more general way the
principle of the statutory nature of offence and punishment (Eur. Court
D.H., Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A,
opinion of the Commission, p. 45, para. 44). This requirement is
satisfied where it is possible to determine from the relevant statutory
provision what act or omission entails criminal liability, even if such
determination derives from the courts' interpretation of the provision
concerned (cf. No. 8710/79, Dec. 7.5.82, D.R. 28 p. 77).
The Commission also recalls that it is primarily for the national
authorities, notably the courts, to interpret and apply domestic law
(Eur. Court D.H., Thorgeir Thorgeirson v. Iceland judgment of 25 June
1992, Series A no. 239, p. 25, para. 58). Furthermore, as a general
rule it is for the national courts to assess the evidence before them.
The Commission notes that the applicant was acquitted of the
charge of practising as a barrister without being registered with the
local Bar under Article 572.2 of the Spanish Criminal Code by the
"Juzgado de Instrucción" no. 2 of Valladolid. Upon appeal by the
Valladolid Bar, the "Audiencia Provincial" of Valladolid convicted the
applicant and ordered him to pay a fine of 10.000 pesetas. The appeal
court found in particular that it could be inferred from the
circumstantial evidence submitted to the court that the applicant had
not carried out only "preparatory acts" as stated in the first
instance, but had been providing legal advice. The "amparo appeal" was
rejected by the Constitutional Court.
The Commission considers that the applicant was accused of and
sentenced for an act classified as a petty offence under the Spanish
Criminal Code at the time it was committed. The Commission is of the
opinion that, when determining the facts in question, the "Audiencia
Provincial" in no way exceeded the limits of a reasonable
interpretation of the relevant provision of the Spanish law.
An examination of this complaint does not, therefore, disclose
any appearance of a violation of the rights set out in the above
provision of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also invokes Article 13 (Art. 13) of the Convention
insofar as the Constitutional Court declined to review the case and no
other domestic remedy was available.
Article 13 (Art. 13) of the Convention states :
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that this provision guarantees an
effective remedy but not a successful outcome (cf. No. 10496/83, Dec.
14.5.84, D.R. 38 p. 189). In the present case, even if unsuccessful,
the applicant had the opportunity to submit his complaint to the
Constitutional Court.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy