[TRANSLATION-EXTRACTS]
...
THE FACTS
The applicant, Mr Armando Alfredo Caldas Ramírez de Arrellano, is a Spanish national, who was born in 1961 and lives in Alicante. He was represented before the Court by Mr J. Sanz de Bremond y Mayans, a lawyer practising in Madrid.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.Proceedings in the Audiencia Nacional
In February 1991 central investigating judge no. 5 in the Audiencia Nacional brought criminal proceedings against the applicant for endangering public health contrary to Article 344 of the Criminal Code as in force at the material time (trafficking in MDMA, an amphetamine-type substance known as “ecstasy”, as distinct from MDA, known as the “love drug”). In a decision given on 22 July 1992, after he had completed the investigation, the judge committed the applicant and others for trial before the First Section of the Criminal Division of the Audiencia Nacional, which, in an order of 18 January 1993, set the case down for trial. After all the requests to adduce evidence submitted by the parties to the proceedings had been granted, the trial took place on 20, 21 and 22 December 1993. The public prosecutor classified the offence with which the applicant was charged as repeatedly endangering public health, by means of a substance that was seriously damaging to health, acting as part of a gang (Articles 344 and 344 bis of the Criminal Code). He sought an eleven-year custodial sentence and a fine of 120,000,000 pesetas. The applicant submitted that the correct classification of the offence was that of endangering public health by means of a substance that was not seriously damaging to health (Article 344 of the Criminal Code), which carried three years’ imprisonment and a fine of 10,000,000 pesetas. In the alternative, should the court accept the public prosecutor’s submission that the substance was seriously damaging to health, the applicant argued that the applicable sentence would, in any event, be the same since it had to be acknowledged that there had been a reasonable mistake within the meaning of Article 6 bis (a) of the Criminal Code regarding the harmfulness of the substance.
In a judgment delivered on 12 January 1994, after a public hearing in the presence of both parties, the Audiencia Nacional declared it established that the applicant had been involved in trafficking in MDMA, an amphetamine-type substance listed in Table I of the Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The applicant was convicted of repeatedly trafficking in psychotropic substances not seriously damaging to health and sentenced to five years’ imprisonment and a criminal fine of 52,000,000 pesetas. He was also temporarily stripped of his civil and political rights. His conviction was based, inter alia, on witness statements, statements by his co-defendants, reports filed by experts instructed during the investigation into the narcotic substance that had been seized and on the fact that the authorities had seized large sums of money in proceeds from the trafficking. In its judgment the Audiencia Nacional stated that the fact that the drug had not been considered as seriously damaging to health made it unnecessary to examine whether there had been a reasonable mistake within the meaning of Article 6 bis (a) of the Criminal Code.
2.Appeal on points of law to the Supreme Court
The public prosecutor appealed to the Supreme Court on points of law against the judgment of the Audiencia Nacional. He submitted that the substance in which the applicant had been trafficking was seriously damaging to health. The applicant lodged submissions under Article 882 of the Code of Criminal Procedure to the effect that the appeal on points of law was inadmissible (escrito de impugnación). He set out detailed arguments disputing the public prosecutor’s submissions and requested, in conclusion, that the Audiencia Nacional’s judgment be upheld. He did not, however, repeat the ground of defence based on Article 6 bis (a) of the Criminal Code that he had raised before the Audiencia Nacional.
The Supreme Court held a public hearing in the case on 30 November 1994.
The applicant asserted that at that hearing he had reiterated his defence of reasonable mistake within the meaning of Article 6 bis (a) of the Criminal Code.
According to the Government, there was nothing in the file to indicate that the applicant had made that submission at the hearing in question.
The record of the hearing contains the following passage:
“The public prosecutor submitted his observations in support of his appeal and requested the court to give judgment allowing the appeal.
... Defence counsel for Mr Caldas [the applicant] disputed the appeal by the public prosecutor. ...”
In a judgment of 12 December 1994 the Supreme Court allowed the public prosecutor’s appeal and quashed the judgment of the Audiencia Nacional. It gave the following reasons for its judgment:
“ ... Toxic doses of MDMA vary between 50 and 150 milligrams. The drug produces a number of concomitant effects: euphoria, heightened mood, self-confidence, empathy, and can provoke visual hallucinations. Doses of between 500 and 700 milligrams can have acutely toxic effects ... Similarly, doses of over 200 milligrams can provoke psychotic symptoms, and particularly panic attacks. Other complications can also occur in the event of a severe overdose: delirium, convulsions, secondary cerebral haemorrhaging on account of a rapid increase in blood pressure, muscle cramp, etc.
Although the toxic capacity of MDMA is less than that of MDA, deaths associated with the intake of this substance have been recorded, even if current thinking seriously questions whether MDMA is directly responsible for the deaths. ...
We cannot accept the respondents’ submission that this appeal goes against the facts declared to have been established. The question whether a toxic or narcotic drug or a psychotropic substance is seriously damaging to health is not a matter of fact, but requires an assessment and a reasoned judgment, which therefore lends itself, under Article 849, paragraph 1, of the Code of Criminal Procedure, to an appeal on points of law as a possible error of law regarding an essential element of the offence.
Having regard to the foregoing, it has to be confirmed that MDMA is a drug that is seriously damaging to health if consumed in doses of between 50 and 150 milligrams. Consequently, trafficking in this substance falls within the category of aggravating circumstances provided for in the Criminal Code. ...”
In a second judgment of the same date the Supreme Court, after endorsing the legal reasoning of the judgment of the Audiencia Nacional – except for the finding that the substance in question was not seriously damaging to health – found the applicant guilty of repeatedly endangering public health by means of substances seriously damaging to health (Articles 344 and 344 bis (a) of the Criminal Code) and sentenced him to a term of imprisonment of eight years and one day and to a fine of 110,000,000 pesetas.
3.Amparo proceedings in the Constitutional Court
On 13 January 1995 the applicant lodged an amparo appeal against that judgment with the Constitutional Court. He complained, firstly, of the Supreme Court’s failure to address the ground of defence based on Article 6 bis (a) of the Criminal Code that he had raised before the Audiencia Nacional and submitted to the Supreme Court at the public hearing. In his submission, when the Supreme Court upheld the appeal by the public prosecutor, finding that the aggravating circumstance of trafficking in a substance seriously damaging to health had been made out, it should have examined the ground of defence based on Article 6 bis (a) of the Criminal Code. In the applicant’s view, the lack of any reference by the Supreme Court to that ground of defence amounted to a failure to give reasons, in breach of Article 24 of the Constitution. The applicant also alleged that the Supreme Court’s retroactive application of its case-law classifying the drug as a substance seriously damaging to health had violated the principle enshrined in Article 25 § 1 of the Constitution that only a statute can define offences and lay down penalties. The applicant alleged further that there had been a violation of Article 14 (principle of equality) of the Constitution.
On 4 July 1996 the Constitutional Court declared the amparo appeal admissible. Between that date and 21 February 1997 it carried out a number of procedural steps, with no interruptions.
In the meantime, on 9 December 1996, it dismissed an application for a stay of execution of the Supreme Court’s judgment.
Ruling on the merits in a judgment of 24 July 2000, served on the applicant on 5 September 2000, it dismissed the amparo appeal as ill-founded. In respect of the applicant’s complaint that the Supreme Court had not addressed the ground based on Article 6 bis (a) of the Criminal Code, the Constitutional Court, after reiterating its case-law regarding lack of reasons, ruled as follows:
“... In accordance with previous case-law, the admissibility of a complaint of lack of reasons is determined in accordance with two main criteria: firstly, the issue must have actually been submitted, and secondly the court must have failed to give reasons for not addressing the submission. An examination of the procedure followed in the instant case shows that the appellant did submit ... to the Criminal Division of the Audiencia Nacional that the tribunal of fact should take into consideration his submission that he had lacked the mens rea for the offence if it agreed with the public prosecutor’s classification of the offence and imposed the sentence corresponding to the aggravating circumstance under Article 344 § 1 of the Criminal Code. Clearly, once the Audiencia Nacional had decided that ‘ecstasy’ was not a substance deemed to be seriously damaging to health it did not need to address the issue of whether a mistake regarding one of the essential elements of the offence (error de tipo) had been made out, whether or not that submission had been made by the appellant. The appellant did not make that submission before the Supreme Court, however, despite his emphatic assertions to the contrary in his amparo appeal. His insistence might have misled the public prosecutor, who, in his observations on the amparo appeal, arrived at the mistaken conclusion that the appellant had made that submission before the Supreme Court and that the court had not dealt with it.
It is sufficient to read the pleadings filed by the applicant with the Supreme Court, in which he submitted that the appeal on points of law was inadmissible, to see, beyond all possible doubt, that his counsel made no submissions concerning a possible mistake regarding one of the essential elements of the offence and that he did not request the Second Division (of the Supreme Court) to apply, if appropriate, Article 6 bis (a) § 1 of the Criminal Code. The observations filed on behalf of the applicant were aimed exclusively at supporting the reasoning of the tribunal of fact’s judgment and the experts’ reports taken into account in assessing the nature and characteristics of the substance that had been seized, the tribunal of fact having found that it was the amphetamine MDMA and not MDA, whose effects are very different. Moreover, the record of the public hearing does not show that this ground of defence was even reiterated before the Supreme Court at that hearing.
The issue of the importance that should be attached to the lack of explicit reasons by a court cannot be resolved on the basis of a univocal criterion leading in every case to the conclusion that silence amounts to a violation of a fundamental right. It is always necessary to examine the circumstances surrounding the case in question. However, where the submission has not even been made in the Supreme Court despite the fact that it could have been, as was the case here ..., any misgivings as to a possible infringement by the judgment appealed against – on account of failure to give reasons – of the appellant’s right to effective legal protection are completely dispelled. From a constitutional point of view, a court cannot be criticised for having remained silent. There is no scope for examination by a Constitutional Court of a complaint of failure to address a question that has not been asked.”
Addressing the complaint of an alleged breach of the principle that only a statute can define offences and lay down penalties, the Constitutional Court observed that a breach of that type occurred when a court’s application of the law was so unreasonable as to be unforeseeable for persons subject to the jurisdiction of the courts, which had not been the case here. It was not difficult to see that the drug known to the man in the street as “ecstasy” was “seriously damaging to health”. The fact that at the material time the Supreme Court had not yet ruled on the appropriate classification did not mean that there had been a breach of the principle that only a statute can define offences and lay down penalties. In order to establish case-law authority on the subject, the Supreme Court had to be able to give a first ruling on the point.
B. Relevant domestic law
...Relevant domestic law concerning the complaint about the length of the proceedings in the Constitutional Court
(a)The Constitution
Article 24 § 2
“Likewise, everyone has the right ... to a public trial without undue delays ...”
Article 121
“Losses incurred as a result of judicial errors or a malfunctioning of the administration of justice shall be compensated by the State, in accordance with the law.”
(b)The Judicature Act
Section 292
“1. Anyone who incurs loss as a result of a judicial error or a malfunctioning in the judicial system shall be compensated by the State, other than in cases of force majeure, in accordance with the provisions of this Part.
2. The alleged loss must in any event have actually occurred and be quantifiable in monetary terms and must directly affect either an individual or a group of individuals.”
Section 293(2)
“In the event of a judicial error or a malfunctioning of the judicial system, the complainant shall submit his claim for compensation to the Ministry of Justice.
The claim shall be examined in accordance with the provisions governing the State’s financial liability. An appeal shall lie to the administrative courts against the decision of the Ministry of Justice. The right to compensation shall lapse one year after it could first have been exercised.”
(c)The Constitutional Court Act
Title VII: Common procedural provisions
Section 80
“Where no provision is made in the present Act, the provisions of the Judicature Act and the Code of Civil Procedure shall apply regarding appearance in court, working days, calculation of time-limits, deliberations and votes, time-bars, waivers and withdrawals, official language and keeping order in the court room.”
COMPLAINTS
...
The applicant then complained, under Article 6 § 1 of the Convention, about the length of the amparo proceedings in the Constitutional Court. He pointed out that he had lodged his amparo appeal on 13 January 1995. After the Constitutional Court had dismissed his application for a stay of execution of the sentence on 9 December 1996, he had served the entire custodial sentence (eight years and one day) before the Constitutional Court had even delivered its judgment on 24 July 2000, that is, five years and six months after he had lodged the amparo appeal.
...
THE LAW
...
2.The applicant also complained of the excessive length of the amparo proceedings in the Constitutional Court. He pointed out that he had lodged his amparo appeal on 13 January 1995 and that the Constitutional Court had given judgment on 24 July 2000, that is, five years and six months after he had lodged the amparo appeal. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ... .”
(a)Applicability of Article 6 § 1
The Government pointed out that the Constitutional Court was not an ordinary court, but operated more like the European Court of Human Rights in Strasbourg. They submitted that the instant case was distinguishable from the cases of Ruiz-Mateos v. Spain (judgment of 23 June 1993, Series A no. 262) and Süßmann v. Germany (judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV) in that the applicant’s complaint related exclusively to the length of the proceedings in the Constitutional Court and not the total length of the proceedings. They concluded that Article 6 § 1 was not applicable in the present case.
The applicant took the contrary view.
The Court reiterates that, in accordance with its well established case-law on this issue (see Deumeland v. Germany, judgment of 29 May 1986, Series A no. 100, p. 26, § 77; Bock v. Germany, judgment of 29 March 1989, Series A no. 150, p. 18, § 37; and Ruiz‑Mateos v. Spain, cited above, p. 19, § 35), the relevant test in determining whether Constitutional Court proceedings may be taken into account in assessing the reasonableness of the length of proceedings is whether the result of the Constitutional Court proceedings is capable of affecting the outcome of the dispute before the ordinary courts.
It follows that Constitutional Court proceedings do not in principle fall outside the scope of Article 6 § 1 (see, mutatis mutandis, Süßmann v. Germany, cited above, p. 1171, § 39).
The Court observes that the proceedings in the Spanish Constitutional Court were directly related to the question whether the criminal charges against the applicant were well-founded. In the event that an amparo appeal is allowed, in part or in full, the Constitutional Court does not confine itself to identifying the provision of the Constitution that has been breached; it quashes the impugned decision and refers the matter back to the appropriate court. In these circumstances, the constitutional proceedings were a further stage of the corresponding criminal proceedings and their consequences could be decisive for the convicted person (see Gast and Popp v. Germany, no. 29357/95, § 65-66, ECHR 2000‑II).
Accordingly, Article 6 § 1 of the Convention is applicable to the proceedings in issue.
(b)Objection based on the failure to exhaust domestic remedies
The Government pointed out at the outset that the complaint about the length of the proceedings had never been submitted, expressly or in substance, in the course of the various appeals lodged by the applicant in the domestic proceedings. It was only before the Court that the applicant had complained of the length of the proceedings in the Constitutional Court, seeking just satisfaction in that regard. The applicant had thus failed to exhaust the remedies available under domestic law, since he had not used, among other things, the remedy – considered effective by the Court on several previous occasions – provided for in sections 292 et seq. of the Judicature Act.
The applicant asserted that he could not have relied on sections 292 et seq. of the Judicature Act in the instant case in support of a claim for compensation because those provisions applied only to a malfunctioning in the administration of justice, that is, in the ordinary courts. In that connection he pointed out that the judiciary was governed by Title VI of the Constitution (Articles 117 to 127), whereas the Constitutional Court was the subject of Title IX of the Constitution (Articles 159 to 165), which specified that an institutional Act would govern the functioning of the court.
In that connection the Government observed, firstly, that section 80 of the Constitutional Court Act provided that the provisions of the Judicature Act relating to numerous procedural measures applied where no provision had been made under the Constitutional Court Act. Admittedly, the Constitutional Court Act did not explicitly refer to the possibility of applying to the Constitutional Court under the above-mentioned provisions of the Judicature Act for compensation for a malfunctioning of the judicial system, but there was nothing to rule out that possibility. In the Government’s submission, a claim under sections 292 et seq. of the Judicature Act for compensation for the excessive length of proceedings in the Constitutional Court therefore had every chance of success and the relevant minister would undoubtedly allow it.
The Court reiterates in that connection its finding that the means available to an applicant in domestic law for raising a complaint about the length of the proceedings are “effective”, within the meaning of Article 13 of the Convention, if they “prevent the alleged violation or its continuation, or provid[e] adequate redress for any violation that has already occurred” (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000‑XI). Article 13 thus offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case or to provide the litigant with adequate redress for delays that have already occurred (see Kudla, cited above, § 159). In the Court’s view, given the “close affinities” between Article 13 and Article 35 § 1 of the Convention (ibid., § 152), the same is necessarily true of the concept of “effective” remedy within the meaning of the latter provision (see, most recently, Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002‑VIII).
In the instant case the applicant complained restrospectively of the length of the proceedings in the Constitutional Court and requested the Court to order Spain to award him just satisfaction under that head. Having regard to the special nature of the Constitutional Court as the final level of jurisdiction in domestic proceedings, itself the safeguard against possible violations of the fundamental rights laid down in the Constitution, the only possible remedy here is an application for compensation providing the applicant with adequate redress for delays that have already occurred (see Kudla, cited above, § 159). In the Government’s submission, that remedy is provided for in sections 292 et seq. of the Judicature Act.
On that point the Court notes that, according to the Government’s observations, the applicant could, if his application were declared inadmissible by the Court, apply to the Minister of Justice under sections 292 et seq. of the Judicature Act for compensation, with every prospect of success. They also pointed out that the applicant did not dispute the possibility of obtaining compensation by using that remedy.
In these circumstances, the Court considers that this part of the application must be dismissed for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
...
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Full & Egal Universal Law Academy