Information Note on the Court’s case-law No. 134
October 2010
Cardona Serrat v. Spain - 38715/06
Judgment 26.10.2010 [Section III]
Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Doubts as to impartiality where two out of three members of bench who had ordered applicant’s detention pending trial subsequently sat on bench that convicted him: violation
Facts – Criminal proceedings were instituted against the applicant before the investigating judge. The case was then committed for trial before the Audiencia Provincial. In January 2002 the public prosecutor requested the applicant’s pre-trial detention, in order to secure his presence at the trial and having regard to the indictable nature of the offence. In an order of February 2002, a division of the Audiencia Provincial, composed of three judges, ordered the applicant’s pre-trial detention. The applicant subsequently challenged the two members of the division who had ordered his detention pending trial and were also due to sit on the bench that would decide the merits of the case. After his challenge had been dismissed, a division of the Audiencia Provincial convicted the applicant in May 2002 of the continuous offence of sexual abuse, with the aggravating circumstance that he had committed the offence before, and sentenced him to four years and six months’ imprisonment. Appeals lodged by the applicant against the alleged partiality of the trial court were unsuccessful.
Law – Article 6 § 1: There was no evidence that the judges in question had not been subjectively impartial. In the present case the fear of a lack of impartiality was mainly due to the fact that two of the three members, including the president, of the trial bench of the Audiencia Provincial that had convicted the applicant had previously been members of the division of the same court that had decided to place him in pre-trial detention. The division of the Audiencia Provincial had not confined itself to granting an extension of the applicant’s pre-trial detention, but had itself ordered him to be placed in pre-trial detention. In doing so it had altered, to his detriment, the situation of the applicant, who had earlier been granted provisional release by the investigating judge in the same criminal proceedings. In reaching its decision the division had not confined itself to a brief assessment of the charges against the applicant to justify the appropriateness of the measure requested by the public prosecutor but, on the contrary, had ruled on the existence of a risk that the applicant would intimidate prosecution witnesses. The division of the Audiencia Provincial had referred to the Code of Criminal Procedure, observing that the conditions for the application of the temporary measure in question were satisfied. One of the Articles of that Code required the court to satisfy itself that there were sufficient grounds for considering that the person being placed in pre-trial detention was criminally responsible for the offence.The terms used by the division of the Audiencia Provincial, read in the light of that Article, could have led the applicant to believe that, in the view of the judges of the division, there was sufficient evidence to conclude that an offence had been committed and that he was criminally responsible for it. Accordingly, the applicant had been given reasonable cause to fear that the judges had preconceived ideas regarding the case on which they were subsequently required to give an opinion in their capacity as members of the trial court. The matter at stake in the present case was the impartiality of two of the three members, including the president, of the division of the Audiencia Provincial which had convicted the applicant in May2002. That factor enabled the present case to be distinguished from other cases in which the impartiality of one judge sitting on a bench of judges was called into question. In the circumstances of the case, the objective impartiality of the trial court could appear to be open to doubt. It followed that the applicant’s fears in that regard could be considered objectively justified.
Conclusion: violation (unanimously).
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This summary by the Registry does not bind the Court.
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