SUR LA RECEVABILITÉ
Application No. 25916/94
by Nancy Marlene VASQUEZ MARTINEZ
against Spain
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 November 1994
by Nancy Marlene VASQUEZ MARTINEZ against Spain and registered on
12 December 1994 under file No. 25916/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
a. Particular circumstances of the case
The applicant is a Colombian citizen, born in 1952 and resident
in Honduras. She is represented before the Commission by
Mr. Iruzubieta Fernandez, a lawyer practising in Madrid (Spain).
The facts as submitted by the applicant may be summarised as
follows :
In 1992, criminal proceedings were instituted against the
applicant by the central investigating Court of Madrid (Juzgado Central
de Instrucción). On 24 March 1993, the court ordered the detention of
the applicant and, for that purpose, issued a warrant to bring the
applicant before the court.
Informed of the proceedings against her, the applicant did not
appear in person before the court but submitted a memorial signed by
her lawyer (abogado) and solicitor (procurador). On 24 May 1993, the
court refused the applicant the right to be represented on the ground
that she had not personally appeared in court. The applicant's counsel
lodged an appeal (recurso de reforma) before the same court, which was
rejected by order of 30 June 1993. An appeal was lodged to the
Criminal Chamber of the Audiencia Nacional, which was rejected by
judgment of 23 February 1994, on the ground that the appearance in
person of the defendant before the investigating judge was necessary
for the exercise of the rights of the defence.
Furthermore, by decision of 9 September 1993, the investigating
judge suspended the proceedings (archivo provisional de las
actuaciones).
The applicant lodged an amparo appeal before the Spanish
Constitutional Court on the ground of Article 24 of the Constitution
(right to a fair trial). By decision on 6 June 1994, notified on
15 June 1994, the Constitutional Court dismissed the amparo appeal.
The court stated that the requirement of the defendant's personal
appearance did not infringe the rights guaranteed in Article 24 of the
Constitution.
b. Relevant domestic law
The Spanish law does not permit the possibility of holding a
trial by default, except in cases where the penalty is imprisonment of
less than one year. When the defendant does not appear in person, the
proceedings are suspended (Articles 834-846 of the Code of Criminal
Procedure).
COMPLAINTS
The applicant alleges a violation of Article 6 para. 3 (c) of the
Convention in that the investigating court required her appearance in
person in the criminal proceedings against her and did not allow her
to be represented by her lawyer.
THE LAW
The applicant complains that in the criminal proceedings
instituted against her, she could not be represented by her lawyer
without appearing in person before the court. She invokes Article 6
para. 3 (c) (Art. 6-3-c) of the Convention, which provides that :
"Everyone charged with a criminal offence has the following
minimum rights:
a. ...
b. ...
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require; ...."
The Commission recalls that the requirements of paragraph 3 of
Article 6 (Art. 6) are to be seen as particular aspects of the right
to a fair trial guaranteed by paragraph 1 of the same Article (see, for
instance, Eur. Court H.R., Delta v. France, judgment of
19 December 1990, Series A no. 191-A, p. 15, para. 34; Poitrimol v.
France, judgment of 23 November 1993, Series A no. 277-A, p. 26, para.
36). The conformity of a trial with the requirements of Article 6
para. 1 (Art. 6-1) must be assessed on the basis of the trial as a
whole. It cannot be excluded, however, that a particular element could
be so decisive in itself that the fairness of the trial could be
determined at an earlier stage (cf. N° 9000/80, dec. 11.3.82, D.R. 28,
p. 127).
The Commission notes that the present case differs from the
Colozza and Poitrimol cases (Eur. Court H.R., judgment of
12 February 1985, Series A no. 89, p. 15, para. 29, and previously
cited para. 31) in that Spanish law does not permit, in cases like the
applicant's, a trial to be held when the person "charged with a
criminal offence" is absent. Indeed, according to the domestic law,
when a defendant has absconded the proceedings are interrupted and no
conviction can be pronounced until the defendant appears in person
before the court. In this case, due to the applicant's absence, the
investigating judge ordered the suspension of the proceedings. The
Commission further recalls that the reason for refusing the applicant
legal representation was only that she had not personally appeared in
court. In these circumstances, the Commission cannot find any
appearance of a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 par. 2
(Art. 27-2) of the Convention.
For this reason, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
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