CASE OF SARDÓN ALVIRA v. SPAIN

THIRD SECTION

CASE OF SARDÓN ALVIRA v. SPAIN

(Application no. 46090/10)

JUDGMENT

STRASBOURG

24 September 2013

FINAL

24/12/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sardón Alvira v. Spain,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,

Alvina Gyulumyan,

Corneliu Bîrsan,

Luis López Guerra,

Nona Tsotsoria,

Johannes Silvis,

Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 3 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46090/10) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr Anibal Sardón Alvira (“the applicant”), on 29 July 2010.

2. The applicant was represented by Mr E. Martínez Benítez, a lawyer practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr F. Irurzun Montoro.

3. The applicant alleged that he had not had a fair hearing before the Supreme Court, which had sentenced him in an appeal on points of law in a capacity that he had not been able to challenge, namely, as an economic beneficiary of the proceeds of a crime. He also complained that the Supreme Court had wrongfully interpreted the domestic legislation regarding civil liability in his case and that neither the Supreme Court nor the Constitutional Court had provided sufficient reasoning in their decisions. He lastly complained that he had been subjected to discriminatory treatment compared with the rest of the investors in the investment company concerned, who had been found by the domestic courts to be the victims and not the beneficiaries of a continuous misappropriation on the part of those convicted.

4. On 29 August 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in Torquemada (Palencia) and lives in Madrid.

A. Proceedings before the Audiencia Nacional

6. On 14 June 2001 the Stock Exchange National Commission (Comisión Nacional del Mercado de Valores – “CNMV”) took the decision to take control over a registered investment agency (GESCARTERA) owing to difficulties it had encountered in discerning the economic and financial situation of the agency and the destination of the funds invested by its clients.

7. The CNMV reported this situation to the Audiencia Nacional. On 25 June 2001 the Audiencia Nacional central investigating judge no. 3 initiated criminal investigations against executives and other people connected with GESCARTERA for alleged crimes of continuous fraud, continuous misappropriation and the continuous making of false statements in commercial documents. The applicant was investigated in his capacity as agent for one of the commercial offices of the investment agency, Asesoría y Gestión de Patrimonios, S.A. (“AGP”).

8. Investigations were concluded on 29 June 2004 and the case was referred to the Audiencia Nacional for trial. Fourteen people, including the applicant, were summoned to the proceedings as the accused parties. The applicant was charged with continuous misappropriation and the continuous making of false statements in commercial documents. Public and private prosecutors claimed compensation from the accused under Article 116 of the Criminal Code.

9. Others, including some close relatives of the applicant, were summoned to the proceedings under Article 122 of the Criminal Code as civilly liable in their capacity as potential gratuitous beneficiaries of the proceeds of the crime.

10. On 25 March 2008 the Audiencia Nacional declared the applicant and some of the other accused guilty of continuous misappropriation and the continuous making of false statements in commercial documents. The court found that GESCARTERA had been subjected to premeditated, systematic and persistent asset-stripping activities by some of the accused, including the applicant, who had misappropriated funds to the prejudice of the company’s clients. The court found that the main shareholder, the director general and the deputy director general of GESCARTERA had carried out coordinated activities with the aim of taking possession of part of the funds entrusted to them, and had misappropriated them and ignored requests for information from the CNMV. It also found that documents containing false statements had been prepared and supplied to current and potential investors in order to maintain or gain them as clients for GESCARTERA.

11. As regards the applicant, the Audiencia Nacional found that he was not a mere agent for the agency AGP but the de facto administrator of that company, that he had premeditatedly and consciously misappropriated funds invested in GESCARTERA in cooperation with the main shareholder, to the detriment of the investors, and that he had prepared and supplied documents containing false information to investors in order to gain and maintain them as clients of GESCARTERA. The Audiencia Nacional further found that in his capacity of investor the applicant owed the investment company the amount of 88,671.78 euros (EUR). This amount was the difference between the sums he had put into the investment company and those he had withdrawn from it.

12. The applicant was sentenced to seven years’ imprisonment and to a fine of EUR 100 per day for fourteen months for continuous misappropriation and to two years’ imprisonment and a fine of EUR 100 per day for ten months for the continuous making of false statements in commercial documents. He was found civilly liable under Article 116 of the Criminal Code and was ordered, jointly with the rest of the accused found guilty, to pay compensation in the amount of EUR 87,995,626.91. This amount was an estimate of the financial losses caused to the investment company by the continuous misappropriation, to be increased by the statutory interests accrued since the date on which the CNMV decided to take control of the investment company.

13. With respect to the civil liabilities of those other people who had been summoned to the proceedings under Article 122 of the Criminal Code, the Audiencia Nacional referred to the Supreme Court’s case-law on that provision, noting in particular that Article 122 was based on the principle that nobody should unjustly increase his or her wealth gratuitously as a result of the commission of a crime, reiterating the three requirements stipulated by the Supreme Court for Article 122 to apply, which were as follows. Firstly, there must be a natural or a legal person having gratuitously increased his or her wealth by proceeds flowing from a crime. Secondly, the beneficiary of those proceeds must have been unaware of the fact that they derived from a crime, because otherwise Article 116 of the Criminal Code would apply. Thirdly, the obligation to restore the assets or to compensate the victims of the crime was to be established in compliance with the civil legislation, compensation being limited to the actual participation in the proceeds of the person sued under Article 122. The Audiencia Nacional further noted that, according to the Supreme Court’s case-law, Article 122 regulated a “civil obligation” the basis of which was not to be found in the commission of a crime but in the obtaining of gratuitous financial gain.

14. In the light of this reasoning, the Audiencia Nacional ordered those who had obtained financial gain from the continuous misappropriation, including some close relatives of the applicant, to reimburse it. The sum they had to reimburse was the difference between the sums they had put into GESCARTERA and those they had withdrawn from it.

B. Proceedings before the Supreme Court

15. The applicant and some of the other parties to the proceedings, namely the applicant’s co-defendants, those who had been declared vicariously civilly liable, and those found civilly liable under Article 122 of the Criminal Code, lodged an appeal on points of law with the Supreme Court. The applicant asked to be acquitted of the crimes of continuous misappropriation and the continuous making of false statements in commercial documents. Furthermore, he argued that his gain had been lawful since it had flowed from normal investments in GESCARTERA, and he challenged the assessment made by the Audiencia Nacional of his contributions to and withdrawals from GESCARTERA.

16. A hearing was held on 28 and 29 September 2009 which the applicant’s counsel attended.

17. On 13 October 2009 the Supreme Court formally delivered its judgment. The court stated that the Audiencia Nacional had failed to respect the applicant’s right to the presumption of innocence. It found that there was no evidence for a conclusion that the applicant had managed the funds invested in GESCARTERA, and that therefore it was doubtful that he had taken part in the misappropriation activities with which he had been charged. It also found that there was not sufficient evidence to conclude that the applicant had taken part in the preparation of the documents containing false information with a view to attracting more investors. The Supreme Court quashed the Audiencia Nacional’s statement of facts in so far as it implied that the applicant had taken an active part in any criminal activity, and acquitted the applicant. However, it endorsed untouched the Audiencia Nacional’s statement as to applicant’s status as an investor in GESCARTERA and the amount he owed to it in that capacity; accordingly, it ordered the applicant to reimburse the above-mentioned amount of EUR 88,671.78 in application of Article 122 of the Criminal Code.

18. In support of that conclusion, the Supreme Court referred to its reasoning in respect of the appellant M.A.V. This appellant had complained to the Supreme Court that the Audiencia Nacional had violated his right to defence when it had found him civilly liable under Article 122 of the Criminal Code despite the fact that the prosecution had not so requested in their indictment. Rather, he had been accused of misappropriation and the prosecutor had requested that he be found civilly liable under Article 116 of the Criminal Code. The Supreme Court noted that M.A.V. had not limited himself to denying the criminal character of his activities but that, on the contrary, he had argued in favour of the lawfulness of his gain as an investor in GESCARTERA; the court concluded that this defence strategy had served M.A.V. in defending him not only from the accusation of misappropriation but also from the civil liability which was ultimately found against him under Article 122 of the Criminal Code. The Supreme Court held that the same reasoning applied to the applicant.

C. Proceedings before the Constitutional Court

19. On 5 January 2010 the applicant lodged an amparo appeal with the Constitutional Court, invoking his right to a fair trial. He contended, inter alia, that the Supreme Court had recharacterised the facts so as to find him guilty in a different capacity that he was not able to challenge, namely, as an economic beneficiary of the proceeds of a crime. The Supreme Court had suddenly and surprisingly raised this issue in its examination of his appeal on points of law, in the absence of any accusation by the other parties to the proceedings or any hearing on the matter. According to the applicant, the legal requirements for finding civil liability on the part of a principal actor in a crime were quite different from those which required an economic beneficiary to refund all benefits gained as a result of criminal activity he had been unaware of. Therefore, his defence strategy would have been different had he been promptly informed of the new accusation against him.

20. The Constitutional Court, in a decision served on 11 February 2010, declared the applicant’s amparo appeal inadmissible on account of the applicant’s failure to satisfy the requirement to justify its particular constitutional significance.

II. RELEVANT DOMESTIC LAW

A. The Constitution

21. Article 24 of the Constitution provides:

Article 24

“1. Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended.

2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent.

The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.”

B. The Criminal Code

22. The relevant provisions of the Criminal Code read as follows:

Article 116

“1. Every person found guilty of a major or minor offence will be held civilly liable if the act committed has caused damage. If two or more persons are found guilty of a major or minor offence, the judges and courts shall indicate the share of liability corresponding to each of them. ...”

Article 122

“Anyone who has gratuitously participated to his economic advantage in the proceeds of a major or minor offence is obliged to restore what he has gained or to provide compensation for the damage up to the amount he has gained.”

C. The Criminal Procedure Code

23. The relevant provisions of the Criminal Procedure Code read as follows:

Article 100

“Any serious or minor offence gives rise to a criminal action for the punishment of the person guilty and may also give rise to a civil action to have the asset restored, to make good the damage caused and to obtain compensation for the damage caused by the criminal act.”

Article 111

“Actions having their origin in a serious or minor offence may be exercised jointly or separately ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (a) AND (b) OF THE CONVENTION

24. The applicant complained that he had not had a fair hearing in so far as he had been found liable by the Supreme Court in proceedings concerning his appeal on points of law as an economic beneficiary of the proceeds of a crime pursuant to Article 122 of the Criminal Code even though he had never been formally charged in that capacity. He invoked Article 6 §§ 1 and 3 (a) and (b) of the Convention, which read as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

...”.

25. The Government contested the applicant’s argument.

A. Admissibility

26. The Government considered that the “criminal limb” of Article 6 § 1 of the Convention was not applicable to the instant case and stated accordingly that the guarantees of Article 6 § 3 were not applicable either. The Government conceded that Article 6 § 1 was applicable in its “civil limb” but maintained that there had been no violation of the Convention.

27. The applicant argued that the “criminal limb” of Article 6 § 1 was applicable to his case and that, consequently, the guarantees encompassed in Article 6 § 3 of the Convention were also applicable.

28. The Court is of the view that the Government’s preliminary objection is so closely linked to the substance of the complaint that it should be joined to the merits of the case. This part of the application should thus be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

29. The applicant contested the Government’s argument according to which civil liability under Article 122 of the Criminal Code was not a “criminal charge” for the purposes of Article 6 §§ 1 and 3 (a) and (b) of the Convention and that, accordingly, the guarantees of Article 6 § 3 were not applicable to his case. The applicant argued that Article 122 was aimed at fighting crime and not at compensating the victims, this obligation falling exclusively to the perpetrators of crime, and that consequently the nature of the provision was not civil but criminal and the guarantees of Article 6 § 3 were fully applicable to his case.

30. In this connection, the applicant contended that he had never been formally accused at any stage of the proceedings of being an economic beneficiary of the proceeds of a crime under Article 122 of the Criminal Code, the Supreme Court having thus surprisingly sentenced him in a capacity he had not been able to challenge. The decision on his liability in that capacity had been reached therefore with a complete disregard for his right to defence.

31. The applicant claimed that he had lodged his appeal on points of law with the Supreme Court in his capacity as a person convicted of misappropriation and making false statements in commercial documents and that he had based his defence strategy in the light of those charges, of which he had ultimately been acquitted by the Supreme Court. He stressed in this regard that the fact that he could challenge these charges and consequently the civil liability claimed by the prosecution under Article 116 of the Criminal Code could not be deemed as providing him with a real opportunity to challenge the decision finding him civilly liable under Article 122 of the Criminal Code. In this connection, he contended that he would have chosen a different defence strategy had he been promptly informed of the accusation under Article 122 of the Criminal Code since the legal requirements for finding civil liability on the part of a principal of a crime were quite different from those required for finding someone civilly liable as an economic beneficiary of the proceeds of a crime of whose commission he had remained ignorant.

32. He further stated that his defence strategy during the hearing had been directed at proving his status as an investor in the investment company and the lawfulness of his activities, and not at proving the reasonableness of the profitability of his investment, which in his view later became critical for the finding that he was civilly liable under Article 122 of the Criminal Code, the finding of liability in that capacity being allegedly based on the high profitability of his investments.

33. The applicant further contested the Government’s argument that he could and should have raised objections against the possible application to him of Article 122 of the Criminal Code. He argued that the domestic legislation on appeals, and in particular the restricted grounds existing in domestic law for the lodging of an appeal on points of law with the Supreme Court, had prevented him from introducing such objections.

34. The applicant lastly complained that the Supreme Court had not provided him with sufficient reasoning for their finding that he was civilly liable under Article 122 of the Criminal Code, and that the Supreme Court had wrongly interpreted Article 122 of the Criminal Code in his case.

(b) The Government

35. The Government did not accept that the requirement to pay compensation imposed on the applicant by the Supreme Court in application of Article 122 of the Criminal Code gave rise to a “criminal charge” for the purposes of Article 6 of the Convention.

36. The Government referred to the Court’s case-law in the case of Y v. Norway (no. 56568/00, 11 February 2003) in support of their statement that none of the three criteria to be taken into account when deciding whether a person was “charged with a criminal offence” for the purposes of Article 6 of the Convention were met in the instant case. In this connection, the Government contended that the aim of Article 122 was not punitive but strictly compensatory. It was aimed at restoring the victims of a crime to the economic situation they had enjoyed before its commission and preventing the unjust enrichment of any person having gratuitously benefited from its proceeds while unaware of their criminal origin. The Government referred to the Court’s reasoning in the above-mentioned case (§ 40) to the effect that even if the victim of a crime had opted for the joining of the compensation claim to the criminal trial, as had happened in the instant case, the first claim would still be considered a “civil” one, except if otherwise established in domestic law, which was not the case in the Spanish legal system. In this connection, they also stated that it could be concluded from that case (§ 41) that a civil obligation to compensate did not amount to a “criminal charge” even if the coexistence of the objective constitutive elements of a criminal offence was critical for a determination as to civil liability and the person found civilly liable was acquitted of the criminal charges in the same criminal proceedings.

37. The Government argued that, in the light of these considerations, the criminal limb of Article 6 § 1 of the Convention was not applicable to the instant case. Accordingly, nor were the guarantees encompassed in Article 6 § 3 of the Convention, and thus the case should be examined strictly under the civil limb of Article 6 § 1.

38. In this connection, the Government cited the Court’s case-law in the case of Andrejeva v. Latvia [GC] (no. 55707/00, § 96, ECHR 2009), in which the Court reiterated the scope of the guarantees of the civil limb of Article 6 § 1 of the Convention, contending that the only legal issue at stake in the instant case was whether the applicant had been provided with the opportunity, from a substantive point of view, of submitting arguments regarding his civil liability in the case.

39. The Government observed that the prosecutors had formally requested that the applicant be held civilly liable under Article 116 of the Criminal Code as a principal actor in a crime, and contended that this submission should be considered sufficient to allow the Supreme Court to find the applicant civilly liable under Article 122 of the Criminal Code. The Government stated that although it was for the prosecution in criminal proceedings to state the nature of a civil claim and its underlying cause of action, it fell to the courts, as organs called upon to apply the law regardless of whether it had been expressly invoked by the parties, to determine the legal provisions applicable to each case, without any further restriction than those flowing from respect of the adversarial principle.

40. The Government contended that the adversarial principle had not been jeopardised in the present case and referred to the Supreme Court’s judgment of 13 October 2009 in which the High Court had so concluded on the ground that the defence strategy used by the applicant against his conviction had fully served the purpose of defending him additionally against the eventual imposition of any civil liability under Article 122 of the Criminal Code.

41. The Government further contended that the same conclusion could be reached if attention was paid to the applicant’s notice of appeal. According to the Government, the arguments put forward by the applicant in that notice had also served as a defence against an eventual finding of civil liability under Article 122 of the Criminal Code. The applicant had not limited himself to defending himself from the crimes with which he had been charged, but had further insisted that the gain he had obtained had been the product of lawful investment in GESCARTERA.

42. Lastly, the Government stated that the domestic legislation on appeals did not prevent the applicant from making submissions with regard to Article 122 of the Criminal Code. The Government considered that the applicant had confused in his observations the grounds of appeal on which appellants can make their submissions with those submissions themselves. The applicant could thus have made any submission in his favour, including any submission against the possible application to him of Article 122 of the Criminal Code, notwithstanding the limited grounds of appeal existing in domestic law. In this connection, the Government stressed that the applicant should have so done since he had been completely aware that the Audiencia Nacional had applied Article 122 of Criminal Code to a co-defendant in the proceedings (M.A.V.) who had been acquitted of the criminal charges brought against him, and to some of his closest relatives.

2. The Court’s assessment

43. The Court first observes that the parties disagree as to whether the liability established in Article 122 of the Criminal Code constitutes a “criminal charge” for the purposes of Article 6 § 1 of the Convention. The Court’s first task will thus be to determine whether this liability constitutes a “criminal charge” within the meaning of that provision.

44. The Court reiterates that the concept of a “criminal charge” in Article 6 is an autonomous one. According to its established case-law there are three criteria to be taken into account when deciding whether a person has been “charged with a criminal offence” for the purposes of Article 6, namely the qualification of the act or omission in the legal system of the State concerned, the nature of the offence, and the nature and degree of severity of the penalty (see, amongst other authorities, Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22, and Öztürk v. Germany, 21 February 1984, § 50, Series A no. 73). The Court further observes that a compensation claim will still be considered a “civil” one even where it has been determined in the criminal trial (see Y v. Norway, cited above, § 40).

45. The Court notes in this regard that Article 122 of the Criminal Code is included in Chapter II of that code, which deals strictly with persons who may be found “civilly liable” upon a finding that a crime has been committed. It is clear from the Spanish criminal legislation that under Article 116 of the Criminal Code a civil action might be jointly exercised with a criminal action against those criminally responsible for the offence (see paragraph 23 above), in which case they would be eventually held civilly liable under that provision. It is also clear that under Article 122 of the Criminal Code a civil action may be brought on its own within the framework of criminal proceedings against those who, although free from any criminal liability, have nonetheless benefited from the proceeds of the alleged crime, in which case they can be held civilly liable under that provision.

46. In this connection, the Court observes that, according to the domestic case-law, Article 122 regulates a “civil obligation”, the basis of which is not to be found in the commission of a crime but in the obtaining of gratuitous financial gain. It is clear from the domestic case-law that the finding of an offence is critical for the application of Article 122 of the Criminal Code. It is also critical for its application that the person in respect of whom civil liability is sought under that provision should not have been involved in the commission of that offence, and even more importantly, that he or she should have been unaware of the criminal nature of the circumstances (see paragraph 13 above). Accordingly, in order for someone to be found civilly liable under Article 122 of the Criminal Code he or she must not have been charged with a criminal offence, or if that has been the case, he or she must have been discharged or acquitted, as in fact was the applicant on appeal. The Court notes in this regard that the persons allegedly liable under Article 122 of the Criminal Code were not summoned by the Audiencia Nacional as accused parties but in a totally different capacity as potential beneficiaries of the proceeds flowing from the allegedly criminal activities of the former. This distinction between criminal responsibility and civil liability under Article 122 of the Criminal Code was later maintained by the Supreme Court. In fact, the court found that the applicant had not committed any offence. However, it concluded that he had obtained considerable gain as a result of the criminal activity of third persons and that he should reimburse it.

47. The Court would also like to highlight that, according to the domestic case-law (see paragraph 13 above), Article 122 imposes on persons found civilly liable under that provision the restitution of the assets or the obligation to compensate the victim of the criminal offence determined in the judgment in application of the principle that nobody may unjustly increase his or her wealth as the result of a crime. The Court observes that Article 122 limits that civil liability to the amount actually gained and that in application of that requirement the Supreme Court requested the applicant to reimburse only the difference between the sums he had put into the investment company and those he had taken out of it (see paragraphs 12 and 17 above). This reimbursement unquestionably amounted to a hefty sum, but the amount of money involved is not in itself determinative of the criminal nature of a legal action (see Porter v. the United Kingdom (dec.), no. 15814/02, 8 April 2003, and Walsh v. United Kingdom (dec.), no. 43384/05, 21 November 2006).

48. In the light of the foregoing considerations, it cannot be concluded that Article 122 of the Criminal Code has a punitive or deterrent nature. In these circumstances, the Court cannot agree with the applicant that Article 122 of the Criminal Code constitutes a “criminal charge” for the purposes of Article 6 of the Convention; it must conclude therefore that Article 6 § 1 is not applicable in the instant case under its criminal head. Consequently, Article 6 § 3 (a) and (b) is also not applicable in the present case.

49. However, the Court considers that Article 122 of the Criminal Code gives rise to a “civil obligation”, and that the case falls under the civil limb of Article 6 § 1 of the Convention. Accordingly, the Court will examine whether the applicant’s right to a fair hearing in the determination of his civil rights and obligations has been respected by the domestic courts.

50. The Court has stated in this regard that the requirements inherent in the concept of a “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions, such as paragraphs 2 and 3 of Article 6, applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32, Series A no. 274).

51. Nevertheless, certain principles concerning the notion of a “fair hearing” in cases regarding civil rights and obligations emerge from the Court’s case-law (see Andrejeva v. Latvia [GC], no. 55707/00, §§ 96-98, ECHR 2009). In so far as is relevant for the instant case, that notion includes the right of the parties to civil proceedings to submit any observations that they consider relevant to their case (see Andrejeva, § 96, cited above). It also includes the principle of equality of arms, which requires a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004‑III). This in turn includes the opportunity for the parties to comment on all observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see, for example, J.J. v. the Netherlands, 27 March 1998, § 43, Reports of Judgments and Decisions 1998‑II, and Quadrelli v. Italy, no. 28168/95, § 34, 11 January 2000).

52. Turning to the instant case, the Court observes that the Supreme Court found that the arguments put forward by the applicant had fully served to defend him in respect of both criminal and civil liability under Article 122 of the Criminal Code, and that if the applicant’s criminal responsibility could be excluded, the same could not be said of his civil liability under that provision (see paragraph 18 above). The Court does not find that there are any compelling reasons to depart from that conclusion. In this connection, as regards the applicant’s argument to the effect that the high profitability of his investments was critical for the finding that he was civilly liable under Article 122 of the Criminal Code, the Court does not find anything in the case file that supports that conclusion.

53. The Court further considers that the interpretation given to Article 122 of the Criminal Code by the Supreme Court cannot be deemed unreasonable or arbitrary and that the Supreme Court provided the applicant with sufficient and pertinent reasoning, if mainly by reference, as to why Article 122 of the Criminal Code applied to him.

54. In light of the foregoing considerations, the Court considers that there has been no violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

A. Complaint under Article 6 § 1 of the Convention

55. The applicant also complained under Article 6 § 1 of the Convention that the Constitutional Court had failed to provide sufficient reasoning in declaring his amparo appeal inadmissible because he had not justified the particular constitutional significance of his claim.

56. The Court refers in this regard to its consistent case-law to the effect that that it is acceptable under Article 6 § 1 of the Convention for national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing the admissibility of such complaints if the matter raises no fundamentally important legal issue (see, amongst others authorities, Beraza Oroquieta (dec.), no. 26000/10, 25 September 2012; John v. Germany (dec.), no. 15073/03, 13 February 2007; Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001; and Vogl v. Germany (dec.), no. 65863/01, 5 December 2002). It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Complaint under Article 14 of the Convention taken in conjunction with Article 6 §§ 1 and 2

57. The applicant also complained under Article 14 of the Convention taken in conjunction with Article 6 §§ 1 and 2.

58. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joins to the merits the Government’s preliminary objection concerning Article 6 §§ 1 and 3 (a) and (b) of the Convention;

2. Declares the complaint concerning Article 6 § 1 in relation to a fair hearing before the Supreme Court in civil proceedings admissible and the remainder of the application inadmissible;

3. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 24 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Santiago QuesadaJosep Casadevall
RegistrarPresident

 

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