THIRD SECTION
DECISION
Application no. 21218/09
lodged by José Ramón PRADO BUGALLO
against Spain
The European Court of Human Rights (Third Section), sitting on 18 October 2011 in a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above-mentioned application lodged on 10 March 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr José Ramón Prado Bugallo, is a Spanish national, who was born in 1955 and lives in Palencia. He was represented before the Court by Mr L. Alfaro Rodriguez, a lawyer practising in Madrid.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In the context of a judicial investigation into an international drugs ring, on 15 August 2001 the Spanish police intercepted a fishing vessel, the Tatiana, on international waters. This Togo-registered vessel had come alongside another vessel, the Agios Constandinos, from which a cargo of cocaine had been transhipped. The Agios Constandinos was piloted by an undercover officer of the Spanish police.
4. On the basis of a warrant issued earlier by a judge of central criminal investigation division no. 6 at the Audiencia Nacional, police officers searched the Tatiana, seized forty parcels of cocaine and arrested its seven occupants. The next day, the police officers leading the investigation informed by telephone the honorary consulate of Togo in Madrid about the interception of the Tatiana, leaving a message on an answering-machine. On 21 August 2001 they notified the consulate by fax of the ship’s interception, giving details of the individuals they had arrested on board.
5. On 16 August 2001 the applicant and four other individuals were arrested together in a house at Villaviciosa de Odón (Madrid). On searching the premises the police officers found satellite communication equipment that had been used to send instructions to the Tatiana.
6. In a judgment of 14 July 2004, after a public hearing, the Audiencia Nacional found the applicant guilty of a public-health offence and sentenced him, as head of the criminal organisation, to sixteen years and ten months in prison together with a 390 million-euro fine. The applicant was convicted on the basis of the testimony of police officers who had taken part in the judicial investigation and of two co-defendants appearing before the central criminal investigation division, the statement of a protected witness (an undercover police officer), a number of expert’s reports and documents, and the applicant’s testimony at the public hearing.
7. As regards the applicant’s inability to examine the crew of the Agios Constandinos because they were not present at the public hearing, whereas their testimony would, according to the applicant, have supported his defence, the Audiencia Nacional decided on 19 February 2004 that this initially admitted evidence would not be heard, so as not to adjourn the trial in view of the difficulty of calling witnesses who lived abroad and because there would be other testimony relating to the same facts. The court further decided, for the same reason, not to issue international letters of request to the authorities of Colombia or Togo.
8. As regards the intervention of undercover police officers, the Audiencia Nacional found that, contrary to the allegations of the applicant and other defendants, the undercover officers had not instigated the commission of the offence. The court noted that the plans for shipping the drugs from Colombia to Spain had been made beforehand and set in motion by the perpetrators of the offence. When the Colombian criminal organisation had approached one of the undercover officers to propose the purchase of a ship for the transport of five tonnes of cocaine, it was already in possession of the drugs and in contact with the Spanish organisation that had agreed to purchase it. The organisation had even stipulated to the officer what criteria the proposed ship would have to satisfy. As to the undercover officer who participated in the transporting of the drug as master of the Agios Constandinos, he had merely followed the instructions given by the Columbian and Spanish criminal organisations as regards the itinerary to be followed, the meeting point for the transhipment of the drugs to the Tatiana and the passwords to be used to ensure the secrecy of communications. Similarly, the other undercover officers among the crew of the Agios had merely thrown the cocaine parcels onto the Tatiana, following the orders given to them.
9. In view of the foregoing, the Audiencia Nacional took the view that the criminal conduct pre-existed the intervention of the undercover police officers, because the intent to commit the public-health offence had already been constituted, freely and spontaneously, on the part of the applicant and his co-defendants. In this connection, the court referred to the case-law of the Supreme Court to the effect that the notion of “incited offence” was not to be confused with that of “discovered offence”, corresponding to a situation where an undercover officer did not seek to instigate the commission of an offence but to gather evidence of illegal activity already committed or being committed, about which he had mere suspicions. In the situation of an “incited offence” the decision to commit the offence was not taken freely by the offender, whilst the “discovered offence” emanated from a free and spontaneous decision to commit the offence.
10. As regards the boarding and searching of the Tatiana on international waters, the applicant and his co-defendants alleged that these acts were null and void, as the police officers had not sought prior authorisation from the consulate of Togo to intercept the Togo-flagged vessel. In this connection the Audiencia Nacional first noted that this ground of nullity had already been examined by its Second Criminal Division, which had rejected the argument in a decision of 24 May 2002, on account of the fact that the police officers had not become aware of the flag flown by the Tatiana until it came alongside the Agios Constandinos.
11. Moreover, the Audiencia Nacional noted that the Supreme Court had already ruled on this question in the context of an appeal on points of law lodged by the Republic of Togo against a decision of the First Criminal Division of the Audiencia Nacional, which had rejected Togo’s objection to jurisdiction based on the fact that the case concerned offences committed on international waters. In its judgment of 25 November 2003 the Supreme Court had considered that the failure to seek authorisation from the flag State, as required by Article 4 § 1 of the Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and Article 561 § 1 of the Code of Criminal Procedure, did not entail the consequences alleged by Togo. The Supreme Court had found that this failure constituted, in any event, an omission that did not invalidate the boarding of the vessel and did not affect the assessment of the evidence obtained without authorisation. It observed that a failure to comply with the rule requiring a request for authorisation did not infringe the rights of the accused, did not nullify the proceedings and did not affect Spain’s jurisdiction, which it had exercised in accordance with international law. The rule at issue concerned the relations between two States parties to the Vienna Convention and the question to which it might, in some cases, give rise between the two States was irrelevant to the proceedings in the instant case.
12. The Audiencia Nacional, for its part, examined whether the applicable international law had been breached by the boarding of the Tatiana. It noted that it was proven that the Tatiana had been sailing on international waters with the intention of transporting several tonnes of cocaine to Spain, thus determining territorial jurisdiction over the vessel, regardless of the flag it was flying. Moreover, the criminal organisation had acted fraudulently by assigning formal title to the vessel to a Gibraltar-based company and registering it under a flag of convenience with the aim of making it more difficult to apprehend the ship while it was transporting the cocaine. The vessel had no genuine or lawful link with the Republic of Togo, as required by Article 91 of the United Nations Convention on the Law of the Sea and Article 5 of the Geneva Convention on the High Seas for the flag State to be regarded as the State exercising jurisdiction over a ship. The Audiencia Nacional further noted that the honorary consulate of the Republic of Togo had been informed by telephone and fax about the interception of the Tatiana. In addition, it observed that the master of the Tatiana had voluntarily given his authorisation for his ship to come alongside the Agios Constandinos, that it was not a matter of a mere suspicion of criminal conduct on the part of the Tatiana but a public-health offence in the process of being committed, and that the crew’s arrest had been authorised by the central investigating judge, thus meeting the requirements of the Code of Criminal Procedure. In view of the foregoing, the Audiencia Nacional found that the interception of the Tatiana had been compliant with the applicable international treaties to which Spain and Togo were parties and with the domestic rules of procedure.
13. The applicant lodged an appeal on points of law against that judgment, which was upheld by the Supreme Court on 16 February 2006.
14. Contrary to the applicant’s allegations, the Supreme Court noted that the Audiencia Nacional had expressly ruled on two occasions on the question of the alleged lack of jurisdiction of the Spanish courts to deal with acts committed on a foreign vessel sailing on international waters. In the present case that question had precisely been resolved at a preliminary stage by the 23 September 2003 decision of the Audiencia Nacional. Moreover, in the context of the objection to jurisdiction lodged by the Republic of Togo, Audiencia Nacional had also ruled on this question, dismissing that State’s claims in a decision of 21 March 2003, against which an appeal on points of law had been dismissed in a Supreme Court judgment of 25 November 2003. The Supreme Court therefore found that the right to a fair hearing had not been infringed, as the applicant had received a response to the question he had raised.
15. In so far as the applicant alleged that the provisions of international conventions to which Spain was a party had been breached, because the principle of the flag State’s jurisdiction had been disregarded, the Supreme Court pointed out that this principle was not universal. It noted that for the nationality of vessels to be recognised, the international instruments required that there be “a genuine link between the State and the ship”. There was no such link where the ship was fraudulently flying a flag of convenience with the aim of committing an office, as in the present case. The Supreme Court explained, however, that the Audiencia Nacional had based Spain’s jurisdiction over the case not on the fact that the Tatiana was sailing under a flag of convenience but on the principle of universal jurisdiction as recognised by section 23(4) of the Institutional Law on the Judiciary, in line with the provisions of international conventions and in particular those concerning the illicit traffic of narcotic drugs and psychotropic substances. Moreover, the Supreme Court noted that the purchasers of the drugs had been Spanish nationals and that part of their criminal activities had taken place on Spanish territory (meetings, the running of the maritime operations from the home of one of the defendants, the existence of essential resources used for the commission of the offence), without forgetting that the final destination of the drugs was Spain. In the Supreme Court’s view, those factors put together justified the exercise of jurisdiction by the Spanish courts in respect of the offences in question.
16. As regards the applicant’s allegation that Article 17 of the Vienna Convention of 1988 had been breached, since the Tatiana had been boarded without the prior and express authorisation of the flag State, the Supreme Court noted, first, that the breach complained of by the applicant had neither impaired fundamental human rights nor prevented the applicant from ensuring his defence during the proceedings. It further indicated that, according to the record of facts that had been recognised as established, when the central investigating judge had authorised the boarding of the ship in a decision of 15 August 2001 those in charge of the investigation had known only that it was an unidentified fishing vessel, with an unknown flag, which was approaching the Agios Constandinos for the transhipment of drugs. The central investigating judge authorised the boarding as an exceptional measure in order to avoid the arrival of the drugs at their final destination and to guarantee the success of the investigation, taking account of the fact that the offence was in the process of being committed and that it was not possible to seek authorisation from the authorities of the flag State as required by Article 561 § 1 of the Code of Criminal Procedure. The Supreme Court observed, however, that the central investigating judge had required the police officers to inform the consulate of the flag State about the boarding as soon as they became aware of the ship’s nationality, and they had done so. The Supreme Court took the view that the central investigating judge’s decision had been well reasoned and was consonant with the aim of the international conventions for the prevention of drug trafficking – an aim that did not require the authorities to act in an excessively formalistic manner, contrary to the applicant’s claim.
17. As to the operation by the undercover police officers, the Supreme Court noted that they had intervened after the main elements of the offence had been constituted, namely the prior possession of the drugs by the Colombian ring and the agreement on its purchase by the Spanish ring, of which the applicant was the leader. The Supreme Court referred in this connection to its case-law to the effect that the public-health offence of drug trafficking was constituted from the point at which the individuals involved in the trafficking had entered into an agreement or understanding. In the court’s view, the drugs remained subject to the intentions of their purchasers as a result of the agreement, their physical possession being irrelevant provided that they were unquestionably predestined for trafficking, as in the present case. The Supreme Court thus found that there had been no incitement to commit the offence, the police officers having intervened after learning of the existence of preparations for the shipping of the drugs, whose purchase had been agreed upon beforehand.
18. In so far as the applicant complained about the rejection of certain evidence that he had proposed in support of his defence, the Supreme Court regarded as justified the decisions of the Audiencia Nacional not to use evidence that had initially been admitted (see paragraph 7 above) and found that they had not deprived the applicant of the possibility of defending himself.
19. Relying on Article 24 §§ 1 and 2 (right to a fair hearing and respect for the principle of the presumption of innocence) and Article 25 (rule that offences must be strictly defined by law) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 26 November 2008 that court declared the appeal inadmissible as being manifestly devoid of content warranting a judgment on the merits.
B. Relevant domestic and international law
1. The Spanish Constitution
Article 24
“1. Everyone has the right to obtain effective protection from the judges and the courts in the exercise of his rights and legitimate interests, and in no case may a person be deprived of the possibility of defending himself.
2. Likewise, everyone has a right of access to the ordinary court as predetermined by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the accusation against him, to have a public hearing without undue delay and with full safeguards, to use evidence appropriate to his defence, not to incriminate himself or show guilt, and to be presumed innocent. ...”
Article 25
“1. No one may be convicted or sanctioned for actions or omissions which when committed did not constitute a criminal offence, a tort or an administrative offence under the law then in force.
...”
Article 96 § 1
“Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal order. ...”
2. Institutional Law no. 6/1985 of 1 July 1985 on the Judiciary, as in force at the material time
Section 23(4)
“The Spanish courts shall also have jurisdiction to deal with acts committed outside Spain, by Spanish or foreign nationals, that may be characterised, under Spanish criminal law, as one or more of the following offences:
...
(f) illicit traffic in psychotropic, toxic and narcotic drugs;
(g) and any other [offence] which, under international conventions and treaties, must be prosecuted in Spain.”
3. Code of Criminal Procedure
Article 561 § 1
“Nor shall the boarding and searching of foreign merchant vessels be permitted without the authorisation of the master, or, if he refuses, without the authorisation of the consul of his country.”
4. Geneva Convention on the High Seas, 29 April 1958
Article 5
“1. Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
2. Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.”
5. United Nations Convention on the Law of the Sea (the “Montego Bay Convention”) of 10 December 1982
Article 91 § 1
Nationality of ships
“Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.”
6. United Nations Convention signed in Vienna on 20 December 1988 “against Illicit Traffic in Narcotic Drugs and Psychotropic Substances”
Article 4 § 1
Jurisdiction
“1. Each Party:
...
b) May take such measures as maybe necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when:
...
(ii) The offence is committed on board a vessel concerning which that Party has been authorized to take appropriate action pursuant to article 17, provided that such jurisdiction shall be exercised only on the basis of agreements or arrangements referred to in paragraphs 4 and 9 of that article;
...”
Article 17
Illicit Traffic by Sea
“1. The Parties shall co-operate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.
2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.
3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel.
4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter alia:
a) Board the vessel;
b) Search the vessel;
c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.
5. Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.
6. The flag State may, consistent with its obligations in paragraph 1 of this article, subject its authorization to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility.
7. For the purposes of paragraphs 3 and 4 of this article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorization made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation.
8. A Party which has taken any action in accordance with this article shall promptly inform the flag State concerned of the results of that action.
9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article.
10. Action pursuant to paragraph 4 of this article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.
11. Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.”
COMPLAINTS
20. Relying on Article 6 § 1 of the Convention the applicant complained about the intervention in the drug trafficking operation of undercover police officers and agents provocateurs, alleging that without them the public‑health offence would not have been committed. Moreover, he claimed that he had not had a fair trial, since the boarding of the Tatiana on international waters had taken place without the prior authorisation of the flag State. He further complained that the central investigating judge at the Audiencia Nacional had authorised the boarding without having jurisdiction to do so.
21. Relying on Article 6 § 2 of the Convention, the applicant complained that he had been convicted on the basis of insufficient evidence of guilt.
22. Under Article 6 § 3 (d) of the Convention the applicant complained about the rejection of certain evidence that he had proposed in support of his defence, in particular the examination of crew members from the Agios Constandinos.
23. The applicant further relied on Article 7 § 1 of the Convention, complaining that the criminal law had been given an extensive interpretation in his case. He submitted that the facts acknowledged as proven constituted merely an attempt to commit an offence, not a completed offence, as he had never been in possession of the drug that was seized by the police officers.
24. The applicant lastly complained that the Constitutional Court’s decision dismissing his amparo appeal was lacking in reasoning and that this had deprived him of an effective remedy by which to obtain redress for the alleged violations. He relied in this connection on Article 6 § 1 and Article 13 of the Convention.
THE LAW
25. The applicant claimed that he had not had a fair trial on account of the intervention of undercover police officers and agents provocateurs. He complained about the boarding of the Tatiana on international waters without the prior authorisation of the flag State and alleged that this measure had been authorised by a judge who did not have jurisdiction to do so. He relied in this connection on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
26. As to the intervention of undercover officers in the drug trafficking operation, the Court observes that it has already had occasion to examine such intervention in a number of cases. The following principles emerge from its case-law.
27. The Convention does not preclude reliance, at the preliminary investigation stage and where the nature of the offence may warrant it, on sources such as anonymous informants. However, the subsequent use of such sources by the trial court to found a conviction is a different matter. The use of undercover officers must be restricted and safeguards put in place even in cases concerning the fight against drug trafficking. While the rise in organised crime requires that appropriate measures be taken, the right to the fair administration of justice cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement. As the Court has previously found, where the activity of the officers in question appears to have instigated the offence and there is nothing to suggest that it would have been committed without their intervention, it goes beyond that of an undercover officer and may be described as incitement. Such intervention and its use in criminal proceedings may result in the fairness of the trial being irremediably undermined (see, in particular, Teixeira de Castro v. Portugal, 9 June 1998, §§ 35-36 and 38-39, Reports of Judgments and Decisions 1998‑IV, and Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 53-55, ECHR 2008).
28. In the present case, it transpires from the facts established by the domestic courts that the undercover police officers intervened at a time when the plan to ship the cocaine from Colombia to Spain had already been drawn up and set in motion by the perpetrators of the offence. In this connection the Court notes that when the Colombian criminal organisation approached one of the undercover officers to propose the acquisition of a ship in which to transport the drugs, it was already in possession of the drugs and in contact with the Spanish organisation, headed by the applicant, which had agreed to purchase them. As to the officers who participated in the shipment of the drugs as master and crew members of the Agios Constandinos, they were merely following the instructions given by the Colombian and Spanish criminal organisations as regards the nautical route to be followed, the meeting point with the Tatiana and the transhipment procedure.
29. The Court observes that the agreement to purchase the drugs and the intent to organise its shipment to Spain had already existed prior to the undercover officers’ intervention. These factors are sufficient for the Court to conclude that the activity of the police officers involved in the case cannot be regarded as having instigated the drug trafficking on which the applicant’s conviction was based. Accordingly, their activity did not go beyond that of an undercover officer, as was the case in Sequeira (see Sequeira v. Portugal (dec.), no. 73557/01, ECHR 2003‑VI).
30. The Court is further required to examine whether the police officers’ intervention in the proceedings, even though they acted as undercover officers and not as agents provocateurs, nevertheless undermined the fairness of the trial. It notes in this connection that the applicant was able to argue, throughout the proceedings, that the commission of the public-health offence had been instigated by the intervention of the police officers. The domestic courts examined his allegations comprehensively and rejected them in decisions that were well reasoned and devoid of arbitrariness.
31. As regards the boarding of the ship Tatiana on international waters, the Court observes that the applicant merely expressed his disagreement with the Spanish courts’ interpretation of domestic law, in the light of the international conventions to which Spain is a party, as to whether it was necessary to obtain the prior authorisation of the flag State and whether the central investigating judge at the Audiencia Nacional had jurisdiction to authorise the boarding.
32. In this connection the Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret domestic law and that the Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see, mutatis mutandis, Bulut v. Austria, 22 February 1996, § 29, Reports 1996‑II, and Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997‑VIII).
33. In the present case the Court notes that both the Audiencia Nacional and the Supreme Court took the view that the interception of the Tatiana had been authorised and carried out in accordance with the relevant provisions of domestic law and international conventions. They took into account the fact that those responsible for the investigation had not known before the boarding which flag the Tatiana was flying, observing that once the flag had been established, the honorary consulate of the Republic of Togo had been informed by telephone and fax of the ship’s interception. Moreover, the domestic courts took the view that the Spanish court had had jurisdiction to hear the case in question, regardless of the flag under which the Tatiana was sailing, since the final destination of the cocaine had been Spain, where the purchasers of the drugs were Spanish, and part of the criminal activities had taken place on Spanish soil. That conclusion was supported by the fact that the flag was one of convenience and therefore there was no genuine link between the vessel and the flag State, as was required by the relevant international conventions.
34. In view of the foregoing, the Court finds that the trial was not devoid of fairness.
35. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
36. The applicant further complained that the evidence on which his conviction had been founded was not sufficient to establish his guilt. He further alleged that his defence rights had been breached, because some of the evidence that he had proposed in support of his defence had been rejected, in particular the possibility of examining crew members of the Agios Constandinos. He relied, in this connection, on Article 6 §§ 2 and 3 (d) of the Convention, the relevant parts of which read as follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
37. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court, for its part, must ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports 1997‑III, and Ramanauskas, cited above, § 52).
38. In the present case the Court observes that, contrary to the applicant’s allegations, the Spanish courts found him guilty as charged on the basis of various evidence that was examined as a whole at the trial, in accordance with the adversarial principle, and that they found to be sufficient. Both the Audiencia Nacional and the Supreme Court, ruling on an appeal on points of law, gave decisions that were well reasoned and devoid of arbitrariness.
39. As regards the applicant’s inability to examine the crew members of the Agios Constandinos, the Court notes that this was the result of the fact that those witnesses did not appear at the trial, as found by the Supreme Court, which took the view that the first instance court’s decision not to adjourn the hearing to summon the crew members again had been justified, since other testimony about the same facts could be heard. In view of the foregoing, the Court finds that the principle of the presumption of innocence and respect for defence rights were not disregarded in the present case.
40. It follows that these complaints must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
41. The applicant further alleged that the charges on which he was convicted had not constituted a completed public-health offence but a mere attempt to commit an offence, because he had never been in possession of the drugs. He relied on Article 7 of the Convention, of which the first paragraph reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
42. The Court reiterates that the interpretation of domestic law provisions, in the present case the question of the classification of criminal charges, falls within the exclusive jurisdiction of the national courts (see, mutatis mutandis, Ubach Mortes v. Andorra (dec.), no. 46253/99, 4 May 2000).
43. In this connection, the Court takes the view that the Spanish courts, and in particular the Supreme Court, do not appear to have acted arbitrarily in finding that, in order to conclude that the public-health offence had been completed, the essential factor was the existence of an agreement between the traffickers for the purchase of the drugs and not the physical possession of the latter.
44. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
45. The applicant lastly complained about a lack of reasoning in the decision of the Constitutional Court, which had declared inadmissible his amparo appeal and had deprived him of an effective remedy by which to obtain redress for the alleged violations. In this connection he relied on Article 6 § 1, taken together with Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
46. In so far as the applicant alleged that the Constitutional Court’s decision of 26 November 2008 did not contain sufficient reasoning, the Court would observe that, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). It may be sufficient for a higher court to dismiss an appeal by referring solely to the statutory provisions that provide for such procedure, if the questions raised by the appeal are not particularly significant or do not offer a sufficient prospect of success (see, among many other authorities, Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001; Burg and Others v. France (dec.), no. 34763/02, ECHR 2003‑II; and Nersesyan v. Armenia (dec.), no. 15371/07, 19 January 2010). In the present case, the applicant could see from the decision of the Constitutional Court that it had nothing to add after two well-reasoned decisions of the Audiencia Nacional and the Supreme Court, which had examined all the questions that were being raised again in the context of the amparo appeal. In those circumstances the Court finds that the requirements of Article 6 § 1 of the Convention as to the obligation to give reasoning in a judicial decision have been met (see García Ruiz, cited above, § 28, and Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A; see also Jahnke and Lenoble v. France (dec.), no. 40490/98, ECHR 2000‑IX).
47. As to the applicant’s allegation that the amparo appeal was not an effective remedy, the Court observes that he merely expressed disagreement with the judicial scrutiny exercised by the Constitutional Court, before which he was able to present the arguments that he deemed useful for his defence. In this connection, it reiterates that the effectiveness of a remedy does not depend on the certainty of a favourable outcome (see, among many other authorities, Herri Batasuna and Batasuna (dec.), nos. 25803/04 and 25817/04, 11 December 2007).
48. The Court accordingly finds that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously,
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy