Vera Fernández-Huidobro v. Spain

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 126

January 2010

Vera Fernández-Huidobro v. Spain - 74181/01

Judgment 6.1.2010 [Section III]

Article 6

Criminal proceedings

Article 6-1

Criminal charge

Allegation of a lack of impartiality by an investigating judge: no violation

Fair hearing

Impartial tribunal

Lack of impartiality during investigation remedied by new investigation by judge from different court: no violation

Facts – At the material time the applicant held the post of State Secretary for Security at the Ministry of the Interior. Criminal proceedings were instituted in 1988 by a central investigating judge against a terrorist organisation known as the Anti-Terrorist Liberation Groups (“the GAL”). In 1993 the central investigating judge took leave of absence for personal reasons in order to stand in the general election. He went on to occupy various posts within the Government. Besides the issuing of a letter of request for judicial assistance, no significant investigative steps had been taken either before his leave of absence or during his replacement. The posts held by the judge during his leave of absence included that of State Secretary at the Ministry of the Interior. For several days in 1994 he held a post of equal rank to that of the applicant, who was State Secretary for Security at the Ministry of the Interior at the time (and resigned shortly afterwards). According to the applicant, there were manifest feelings of animosity between the two men, against a background of rivalry as to their political responsibilities, a situation that went so far as to prompt his resignation, although the judge denied this. A few days after his own resignation from the Government, the central investigating judge resumed his former duties and in that capacity took over the investigation of the GAL case. From then on the investigation was actively pursued. In January 1995 the central investigating judge placed the applicant under formal investigation on suspicion of misappropriation of public funds and false imprisonment; he was accused of having played a part – by financial and other means – in the organisation of the GAL. The applicant unsuccessfully challenged the judge for bias. He was held in pre-trial detention for several months in 1995, before being released on payment of bail. From August 1995 the investigation was taken over at Supreme Court level by a judge designated from that court’s Criminal Division, for reasons of jurisdiction on account of the parliamentary immunity enjoyed by some of the accused. The newly assigned judge conducted a fresh investigation, during which most of the investigative steps were carried out anew. He re-examined witnesses who had already given evidence to the central investigating judge. Those giving evidence were cross-examined by the parties’ lawyers and questions were put to them by the designated investigating judge. Directions were also given for additional evidence to be obtained (written evidence, witness statements and expert reports). At the end of the investigation, the applicant was charged with the further offence of membership of an armed organisation. The case was set down for hearing in the Supreme Court in May 1998. A preliminary objection by the applicant alleging bias on the part of the central investigating judge was dismissed, as the Criminal Division held that there was no proof of the animosity alleged by the applicant. The applicant was sentenced to ten years’ imprisonment for misappropriation of public funds and false imprisonment. An amparo appeal by the applicant was dismissed by the Constitutional Court in 2001.

Law – Article 6 § 1: (a) Applicability of Article 6 – In so far as the steps taken by the investigating judge directly and inevitably influenced the conduct, and hence the fairness, of the subsequent proceedings, including the actual trial, the Court considered that, although some of the procedural safeguards envisaged by Article 6 § 1 might not apply at the investigation stage, the requirements of the right to a fair trial in the broad sense necessarily implied that the investigating judge should be impartial. Furthermore, Spanish law required the investigating judge, who was responsible for gathering evidence both in favour of and against the accused, to satisfy criteria of impartiality. The Constitutional Court, for its part, had held that an investigating judge, like any other judge, had to be objectively and subjectively impartial. Article 6 was therefore applicable to the investigation procedure conducted in the present case by the central investigating judge.

(b) Merits – The investigation in the present case had been assigned to the central investigating judge in 1989. Besides the letter of request for judicial assistance, there had been no significant investigative steps before the judge had taken leave for personal reasons. Only after he had resumed his duties as a central investigating judge had the investigation of the case been actively pursued. The Court considered that, irrespective of the hostile personal relations or the allegedly manifest animosity between the applicant and the judge, the factor underlying the allegation of a lack of objective impartiality was that the judge had held public office and had been in contact with certain persons in that capacity before immediately resuming the judicial investigation pending, inter alia, against them. Having regard to the circumstances of the case, the Court considered that the central investigating judge’s impartiality might have appeared open to doubt. The applicant’s concerns on that account could therefore be regarded as having been objectively justified; the objective test therefore resulted in the conclusion that, once he had returned to his previous post as a judge and resumed the investigation of the present case after taking leave of absence to stand in the elections, the central investigating judge had not satisfied the Article 6 impartiality requirement.

The next point to consider was whether the Supreme Court – and, in particular, the investigating judge designated from its Criminal Division – had cured that defect. In the present case the applicant had been tried and convicted at a single level of jurisdiction by the Supreme Court, which had assigned a new judge to conduct a fresh investigation. The investigation carried out by the central investigating judge had therefore been examined and reviewed by a new investigating judge from a higher court. The parties disagreed as to the extent of the investigation conducted by the judge designated by the Supreme Court. The Court noted that that judge’s activities had not simply entailed repeating the previous investigation, but on the contrary had amounted to a fresh investigation during which most of the investigative steps had been carried out anew. Moreover, although the applicant argued that the new investigation had simply been a repetition of the one conducted by the central investigating judge, he did not cast doubt on the personal impartiality of the investigating judge designated by the Supreme Court. While it was true that the designated investigating judge had already known the persons who were to be called to give evidence and had pursued and completed the line of inquiry initiated by the first investigating judge, the parties had nevertheless had the opportunity, both before the new judge and at the trial in the Supreme Court, to confirm or contradict their previous statements, being afforded all the appropriate safeguards. That being so, the Court concluded that the impartiality of the investigating judge designated by the Criminal Division of the Supreme Court could not be called into question and that that judge had therefore cured the defects of the initial investigation.

Conclusion: no violation (four votes to three).

Article 6 § 2: The Supreme Court had found the applicant guilty on the basis of the evidence produced against him during the investigation and at the trial. In particular, it had given a fully reasoned decision. The Court therefore found that there had been no infringement of the applicant’s defence rights by the court concerned, which had afforded him the benefit of adversarial proceedings.

Conclusion: no violation (four votes to three).

Click here for the Case-Law Information Notes

Full & Egal Universal Law Academy