Communicated on 28 August 2019
THIRD SECTION
Application no. 2236/19
Bernardo SERRANO CONTRERAS
against Spain
lodged on 17 December 2018
SUBJECT MATTER OF THE CASE
The application concerns the execution of a final Court’s judgment in the case of Serrano Contreras v. Spain (no. 49183/08, 20 March 2012), in which the Court held that there had been a violation of Article 6 § 1 of the Convention. Despite having been acquitted at first instance, the Supreme Court convicted the applicant of two crimes of forgery (committed in official and commercial documents) and fraud without holding a hearing ‑ and carrying out an assessment of the subjective elements of the offences (judgment no. 1345/2005, of 14 October 2005). The Court found that the Supreme Court’s judgment was based on evidence which had not been examined in the hearing held before the first-instance court. The Supreme Court had departed from the first-instance court’s conclusions as to the subjective elements of the offences (the knowledge of the irregularity of the acts), a question of fact which resulted decisive for the assessment of the applicant’s guilt. The Court noted that the offences of fraud and forgery required intent, and that the first-instance court had not found the existence of intent to have been established. Notwithstanding this, the Supreme Court had found – unlike the first-instance court – that the existence of intent had been established, without having conducted a direct examination of the evidence given in person by the accused.
Following the Court’s judgment, the applicant lodged an application for review (recurso de revisión) with the Supreme Court seeking the reopening of the criminal proceedings (Article 954 of the Criminal Procedural Code). The request for reopening was granted by the Supreme Court. Interpreting the Court’s judgment, the Supreme Court considered that the breach of the Convention found by the Court was solely related to the crime of forgery in an official document (as opposed to the crime of fraud and the crime of forgery in a commercial document). It concluded that the judgment rendered at first instance had found that the existence of intent in connection with the other offences had been established. Accordingly, and without holding a hearing, the Supreme Court acquitted the applicant of the crime of forgery committed on official documents, but upheld the conviction for the crimes of forgery committed on commercial documents and fraud (judgment no. 330/2015, of 19 May 2015).
QUESTIONS TO THE PARTIES
1. Does the Court have jurisdiction to consider the applicant’s complaint under Article 6 (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, 11 July 2017, §§ 46-75)? In particular, does the judgment of the Supreme Court of 19 May 2015 rendered in the framework of the reopening proceedings raise a new issue within the jurisdiction of the Court (see Bochan v. Ukraine (no. 2), no. 22251/08, ECHR 2015)?
2. If so,
2.1. given that the Supreme Court re-determined the criminal case against the applicant, was the absence of a public hearing compatible with Article 6 § 1 of the Convention?
2.2. was the judgment of the Supreme Court that interpreted the Court’s judgment arbitrary or manifestly unreasonable, contrary to Article 6 § 1 of the Convention?
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