CASE OF GEA CATALÁN v. SPAIN



        In the case of Gea Catalán v. Spain (1),

        The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of

Court A (2), as a Chamber composed of the following judges:

        Mr R. Ryssdal, President,

        Mr F. Gölcüklü,

        Mr R. Macdonald,

        Mr A. Spielmann,

        Mr J. De Meyer,

        Mr I. Foighel,

        Mr J.M. Morenilla,

        Mr M.A. Lopes Rocha,

        Mr B. Repik,

and also of Mr H. Petzold, Registrar,

        Having deliberated in private on 28 October 1994 and

26 January 1995,

        Delivers the following judgment, which was adopted on

the last-mentioned date:

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Notes by the Registrar

1.  The case is numbered 10/1994/457/538.  The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number).  The last two numbers

indicate the case's position on the list of cases referred to

the Court since its creation and on the list of the

corresponding originating applications to the Commission.

2.  Rules A apply to all cases referred to the Court before

the entry into force of Protocol No. 9 (P9) and thereafter

only to cases concerning States not bound by that Protocol

(P9).  They correspond to the Rules that came into force on

1 January 1983, as amended several times subsequently.

_______________

PROCEDURE

1.      The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on

11 March 1994, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention.  It originated in an application (no. 19160/91)

against the Kingdom of Spain lodged with the Commission under

Article 25 (art. 25) by a Spanish national,

Mr Francisco Gea Catalán, on 14 October 1991.

        The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Spain

recognised the compulsory jurisdiction of the Court

(Article 46) (art. 46).  The object of the request was to

obtain a decision as to whether the facts of the case

disclosed a breach by the respondent State of its obligations

under Article 6 para. 3 (a) (art. 6-3-a) of the Convention.

2.      In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated

that he wished to take part in the proceedings and designated

the lawyer who would represent him (Rule 30).  The President

of the Court gave the lawyer in question leave to use the

Spanish language (Rule 27 para. 3).

3.      The Chamber to be constituted included ex officio

Mr J.M. Morenilla, the elected judge of Spanish nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,

the President of the Court (Rule 21 para. 3 (b)).  On

24 March 1994, in the presence of the Registrar, the President

drew by lot the names of the other seven members, namely

Mr F. Gölcüklü, Mr R. Macdonald, Mr A. Spielmann,

Mr J. De Meyer, Mr I. Foighel, Mr M.A. Lopes Rocha and

Mr B. Repik (Article 43 in fine of the Convention and Rule 21

para. 4) (art. 43).

4.      As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent

of the Spanish Government ("the Government"), the applicant's

lawyer and the Delegate of the Commission on the organisation

of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the

order made in consequence, the Registrar received the

Government's memorial on 27 July 1994.  The applicant

submitted his claims for just satisfaction in a letter which

reached the registry on 19 October 1994.  On 22 September 1994

the Secretary to the Commission had informed the Registrar

that the Delegate would submit his observations at the

hearing; prior to that date he had produced various documents

as requested by the Registrar on the President's instructions.

5.      In accordance with the decision of the President, who

had also given the Agent of the Government leave to use the

Spanish language (Rule 27 para. 2), the hearing took place in

public in the Human Rights Building, Strasbourg, on

26 October 1994.  The Court had held a preparatory meeting

beforehand.

        There appeared before the Court:

(a) for the Government

   Mr J. Borrego Borrego, Head of the Legal Department

        for Human Rights, Ministry of Justice and

        of the Interior,                                       Agent;

(b) for the Commission

   Mr F. Martínez,                                          Delegate.

        Mr C. Soliva Hernández, the applicant's lawyer,

informed the Registrar that he was unable to attend.  The

Court heard addresses by Mr Borrego Borrego and Mr Martínez.

6.      On 26 October 1994 the Chamber decided to dismiss the

applicant's claims for just satisfaction as out of time

(Rule 50 para. 1).

AS TO THE FACTS

I.      Circumstances of the case

7.      Mr Francisco Gea Catalán, who is a Spanish national,

lives in Barcelona.

8.      In the first months of 1985, taking advantage of his

position as an employee of the Bank of Fomento, he caused the

bank to discount in his favour a number of bills of exchange

that he had himself drawn using false names.  Once the

deception was discovered, the bank laid a complaint against

him.  It also dismissed two other employees for failure to

exercise proper supervision and filed an application to join

the criminal proceedings brought against Mr Gea Catalán, as a

civil party seeking damages.

9.      In a decision of 1 July 1986 Barcelona investigating

judge no. 21 found that the facts established by him

disclosed, inter alia, the offence of obtaining property by

deception as provided for in Articles 528 and 529 para. 7 of

the Criminal Code (see paragraph 17 below).  He ordered the

applicant's committal for trial in the Barcelona Audiencia

Provincial.

10.     In his pre-trial submissions (conclusiones

provisionales), the public prosecutor classified the acts of

which the applicant was accused as, inter alia, obtaining

property by deception within the meaning of Article 528 with

the especially aggravating ("muy cualificada") circumstance

provided for in paragraph 1 of Article 529 of the Criminal

Code (see paragraph 17 below).

        As civil party, the bank lodged submissions which

essentially reproduced those of the public prosecutor.

11.     At the hearing the public prosecutor and the civil

party confirmed their earlier submissions (conclusiones

definitivas).

12.     In a judgment of 22 January 1988 the Audiencia

Provincial sentenced the applicant to, inter alia, two years

and four months' imprisonment on a count of obtaining property

by deception.  It found that the offence had involved a sum of

5,610,150 pesetas, that it had damaged the reputation of the

bank and that it had resulted in the dismissal of two other

employees.  The court therefore based the sentence on

paragraph 7 of Article 529 of the Criminal Code, finding that

there had been an especially aggravating circumstance.

13.     Mr Gea Catalán lodged an appeal on points of law.  He

relied on Article 24 para. 2 of the Constitution (see

paragraph 16 below), his complaint being essentially directed

at the fact that the aggravating circumstance provided for in

Article 529 para. 7 had been applied to him, without his being

given prior notice.  In this connection he pointed out that

both the public prosecutor and the civil party had referred in

their submissions solely to paragraph 1 of that Article; this

discrepancy had infringed his defence rights.

14.     On 7 November 1990 the Supreme Court (Tribunal Supremo)

dismissed his appeal.  The discrepancy complained of by

Mr Gea Catalán had resulted from a mere clerical error that

had been easy to understand and to correct simply as a matter

of common sense and logic, given the absurdity of applying

paragraph 1 of Article 529 to the facts in issue.

15.     The applicant filed an amparo appeal in the

Constitutional Court (Tribunal Constitucional) on the ground

that the rights of the defence had been infringed.  This

appeal was dismissed on 6 May 1991 as not raising any

constitutional issue.  The typing error that had resulted in

the reference to paragraph 1 of Article 529 rather than

paragraph 7 had altered neither the charge nor the facts

constituting the alleged offences.  It followed that the

clerical error had had no effect on the rights of the defence.

II.     Relevant domestic law

        1.  The Constitution

16.     According to Article 24 of the Constitution,

        "1.  Everyone has the right to effective protection by

        the judges and courts in the exercise of his rights and

        his legitimate interests and in no circumstances may

        there be any denial of defence rights.

        2.  Likewise, everyone has the right to be heard in a

        court of ordinary jurisdiction, as determined by law,

        to defend himself and be assisted by a lawyer, to be

        informed of the charge against him, to have a public

        trial without undue delay and attended by all the

        safeguards, to adduce the evidence relevant to his

        defence, not to make incriminating statements, not to

        confess himself guilty and to be presumed innocent.

        ..."

        2.  The Criminal Code

17.     Two provisions of the Criminal Code are relevant to the

present case:

                              Article 528

        "Anyone who, with a view to pecuniary advantage,

        engages in dishonest practices in order to deceive

        another person into transferring property to the

        latter's detriment or to the detriment of a third party

        shall be guilty of the offence of obtaining property by

        deception.

        A person convicted of this offence shall be liable to a

        term of imprisonment (arresto mayor) [from one month

        and one day to six months] if the sum involved exceeds

        30,000 pesetas.  If there are found to be two or more

        of the aggravating circumstances provided for in

        Article 529 below or one especially aggravating

        circumstance, the person convicted shall be sentenced

        to a term of imprisonment (prisión menor) [from six

        months and one day to six years] ...

        Where only one of the aggravating circumstances

        referred to in Article 529 is found to be established,

        the term of imprisonment shall be in the range of the

        maximum sentence available (grado máximo) [from four

        months and one day to six months]."

                              Article 529

        "The following circumstances shall be deemed to be

        aggravating circumstances for the purposes of the

        preceding Article:

        1.  Where the deception is practised by altering the

        nature, quality or quantity of staple goods, dwellings

        or any other goods of recognised social utility.

        ...

        7.  Where the deception is particularly serious in

        terms of the sum involved."

PROCEEDINGS BEFORE THE COMMISSION

18.     Mr Gea Catalán applied to the Commission on

14 October 1991.  Relying on Article 6 para. 3 (a)

(art. 6-3-a) of the Convention, he complained that he had not

been informed of a component of the charge against him.  He

also maintained that he had not had a fair hearing within a

reasonable time and that there had been a breach of the

principle of the presumption of innocence and of the

prohibition on imprisonment for debt (Article 6 paras. 1 and 2

of the Convention and Article 1 of Protocol No. 4) (art. 6-1,

art. 6-2, P4-1).

19.     On 30 March 1993 the Commission declared the

application (no. 19160/91) admissible in respect of the first

complaint but inadmissible for the rest.  In its report of

30 November 1993 (Article 31) (art. 31) it expressed the

unanimous opinion that there had been a violation of

Article 6 para. 3 (a) (art. 6-3-a).  The full text of the

Commission's opinion and of the concurring opinion contained

in the report is reproduced as an annex to this judgment (1).

_______________

1.  Note by the Registrar: for practical reasons this annex

will appear only with the printed version of the judgment

(volume 309 of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

20.     At the hearing, the Government requested the Court to

strike the case out of its list because of the applicant's

implied withdrawal and, in the alternative, to hold that the

facts of the case "could not amount to a violation of the

European Convention".

AS TO THE LAW

I.      THE GOVERNMENT'S PRELIMINARY OBJECTION

21.     According to the Government, the applicant's inactivity

was tantamount to an implied withdrawal.  After having

indicated that he wished to take part in the proceedings

before the Court, Mr Gea Catalán had neither lodged a memorial

nor appeared at the hearing and had submitted a claim for just

satisfaction well after the expiry of the time-limit laid down

in Rule 50 para. 1 of Rules of Court A.  Such an attitude

should lead the Court to strike the case out of the list.

22.     The Delegate of the Commission did not express a view

on this question.

23.     Under Rule 49 para. 2:

        "When the Chamber is informed of a friendly settlement,

        arrangement or other fact of a kind to provide a

        solution of the matter, it may, after consulting, if

        necessary, the Parties, the Delegates of the Commission

        and the applicant, strike the case out of the list.

        The same shall apply where the circumstances warrant

        the conclusion that the applicant does not intend to

        pursue his complaints or if, for any other reason,

        further examination of the case is not justified."

24.     The Court notes that Mr Gea Catalán expressed the wish

to take part in the proceedings (see paragraph 2 above) and

that he submitted, albeit belatedly, a claim for just

satisfaction (see paragraph 6 above).  It cannot therefore be

inferred that he did "not intend to pursue his complaints".

        In addition, there has been neither a friendly

settlement, nor arrangement nor other fact of a kind to

provide a solution of the matter, so that the first sentence

of Rule 49 para. 2 is not applicable either (see the Bunkate

v. the Netherlands judgment of 26 May 1993, Series A

no. 248-B, p. 30, para. 19).

        The objection must accordingly be dismissed.

II.     ALLEGED VIOLATION OF ARTICLE 6 para. 3 (a) (art. 6-3-a)

        OF THE CONVENTION

25.     Mr Gea Catalán alleged a violation of Article 6

para. 3 (a) (art. 6-3-a) of the Convention, which provides as

follows:

        "Everyone charged with a criminal offence has the

        following minimum rights:

        (a) to be informed promptly, ... and in detail, of the

        nature and cause of the accusation against him;"

        The violation derived from the fact that he had been

sentenced on the basis of paragraph 7 of Article 529 of the

Criminal Code and not on the basis of paragraph 1 of that

Article, which had been relied on by the prosecuting authority

and the civil party.

26.     The Commission shared that view.  It considered that a

person charged with a criminal offence was entitled to be

informed not only of the material facts alleged against him

but also of their legal classification.  Even if reference to

the aggravating circumstance provided for in paragraph 1 of

Article 529 could appear absurd, that would not automatically

entail the application of paragraph 7.

27.     The Government affirmed, on the other hand, that the

applicant had been fully aware of all the components of the

charge against him, in particular because the facts cited by

the public prosecutor and the civil party had been identical

to those established by the investigating judge.  Logically

only paragraph 7 could apply to those facts.

28.     Like the Government, the Court considers that the

discrepancy complained of was clearly the result of a mere

clerical error, committed when the prosecution submissions

were typed and subsequently reproduced on various occasions by

the prosecuting authority and the civil party (see

paragraphs 10 and 11 above).  Indeed that was also the view

taken by the Supreme Court and the Constitutional Court in

dismissing the applicant's appeal on points of law and his

amparo appeal (see paragraphs 13-15 above).

29.     Having regard to the clarity of the legal

classification given to the findings of fact set out in the

investigating judge's committal order of 1 July 1986 (see

paragraph 9 above), the Court fails to see how Mr Gea Catalán

could complain that he had not been informed of all the

components of the charge, since the prosecution submissions

were based on the same facts (see paragraph 10 above).

Furthermore in the instant case it would, as the Supreme Court

rightly noted (see paragraph 14 above), have been absurd to

have applied paragraph 1 of Article 529 of the Criminal Code,

whereas the inference that it was paragraph 7 that applied,

although not an automatic conclusion, could at any event have

been arrived at through minimal recourse to logic.

30.     In sum, the Court holds the applicant's complaint to be

unfounded and therefore finds that there has been no breach of

Article 6 para. 3 (a) (art. 6-3-a).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.      Dismisses the Government's preliminary objection;

2.      Holds that there has been no breach of Article 6

        para. 3 (a) (art. 6-3-a) of the Convention.

        Done in English and in French, and delivered at a

public hearing in the Human Rights Building, Strasbourg, on

10 February 1995.

Signed: Rolv RYSSDAL

        President

Signed: Herbert PETZOLD

        Registrar

 

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