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VASQUEZ MARTINEZ v. SPAIN

Doc ref: 25916/94 • ECHR ID: 001-2192

Document date: May 17, 1995

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 1

VASQUEZ MARTINEZ v. SPAIN

Doc ref: 25916/94 • ECHR ID: 001-2192

Document date: May 17, 1995

Cited paragraphs only

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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