Information Note on the Court’s case-law No. 114
December 2008
Bazo González v. Spain - 30643/04
Judgment 16.12.2008 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Public hearing
Lack of a public hearing before appellate court: no violation
Facts: In a judgment delivered after a public hearing in inter partes proceedings, the criminal court judge no. 1 acquitted the applicant of the charges against him for attempted cigarette smuggling. Counsel for the State and State Counsel's Office appealed. The applicant was invited to submit observations. Assisted by a lawyer, he objected to the appeal and sought confirmation of the impugned judgment, except in so far as it concerned the taking of evidence by the trial court. Neither party requested a public hearing and, considering it unnecessary, the Audiencia Provincial, in keeping with the Code of Criminal procedure, decided not to hold one. In adversarial proceedings the Audiencia Provincial allowed the appeal and, without changing the facts, convicted the applicant of attempted smuggling. It found that the trial court had misinterpreted the law and that the applicant’s actions could not be considered to have been decriminalised. The applicant lodged an amparo appeal with the Constitutional Court, which rejected it.
Law: That the applicant had been convicted by the Audiencia Provincial without having been heard in person was not in dispute. In order to determine whether there had been a violation of Article 6 of the Convention, therefore, it was necessary to examine the role of the Audiencia and the nature of the issues before it. Under Spanish law this court took evidence only exceptionally, and that was limited to evidence the applicant had not been able to submit at first instance, evidence that had been submitted but rejected without good reason, and evidence which had been declared admissible but not used at first instance for reasons beyond the applicant’s control. Furthermore, when there was no new evidence, it was for the Audiencia to decide whether or not to hold a public hearing in appeal proceedings, depending on whether it considered one necessary for a better understanding of the case. In this case it had been open to the Audiencia Provincial, as an appeal court, to deliver a new judgment on the merits, which it did. The scope of the examination carried out by the Audiencia in the instant case led the Court to consider that it had not been essential that a public hearing be held. The aspects of the case which the Audiencia had had to analyse in order to determine the applicant’s guilt had been predominantly points of law: the judgment had stated quite clearly that it was not for the Audiencia to re-examine the evidence the trial court had heard. Its role had simply been to arrive at a different interpretation from the trial court judge as to whether certain offences had been decriminalised by law. Accordingly, the appellate court had not been required to examine the case both on the merits and in law. On the contrary the issues the AudienciaProvincial had examined had been purely legal ones, with no changes being made to the facts that had been declared established at first instance.
As to the applicant’s complaint that he had not had an opportunity to challenge the facts declared established at first instance because he had been acquitted, the Court confirmed that there was no provision in Spanish law for persons who had been acquitted to challenge facts that had been declared established. However, it noted that the proceedings before the criminal court judge no. 1 had included a public hearing in the course of which the applicant had had an opportunity to submit any arguments he considered necessary in order to challenge the disputed facts. In the appeal proceedings the submissions of the Counsel for the State and State Counsel's Office concerning the appeal had been communicated to the applicant, who had been given a deadline within which to reply, which he had done with the assistance of a lawyer. That being so, the proceedings could be said to have been inter partes.
The foregoing was sufficient for the Court to find that a public hearing had not been necessary. In view of the nature of the questions examined on appeal by the Audiencia Provincial and the fact that the applicant could have presented written submissions at any stage in the proceedings, the lack of a public hearing had not impaired the applicant’s right to a fair trial.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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