Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19382/92

by A.T.

against Spain

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 February 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 2 December 1991

by A.T. against Spain and registered on 21 January 1992 under file No.

19382/92;

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

The applicant is a Dutch citizen, born in 1959 and at present

detained in prison in Vigo, Spain. He is a truckdriver by profession.

Before the Commission he is represented by Mr. J.K. Gaasbeek, a lawyer

practising in Haarlem, the Netherlands.

The facts as submitted by the parties may be summarised as

follows.

In March 1989 a man unknown to the applicant asked him if he

could transport and deliver an important amount (1.300 kilos) of

tobacco to Bayona (Spain). He would receive, including expenses,

20.000 Dutch guilders for this. Eventually the applicant accepted.

On 26 May 1989, just after delivery of the goods, the applicant was

arrested by the Guardia Civil who also confiscated the pistol, a

Browning 7.65, he kept in his truck.

The next day, the Guardia Civil seized 2.475 kilos of hashish in

a shed at Cabreiros-Baredo (Bayona), which delivery involved at least

eight persons. The amount of hashish seized in the applicant's truck

and the shed respectively formed part of a total amount of 7.000 kilos

of hashish which had been delivered at three stages during the previous

days.

It appeared that the tobacco transported by the applicant was in

fact hashish, which he claimed to ignore. On 26 May 1989 he was

detained on remand (prisión provisional). On 21 September 1989 the

Public Prosecutor (Ministerio Fiscal) declared not to be opposed to the

applicant's provisional release provided that he pay a bail of 500.000

pesetas and that he report daily to the police station. On 25

September 1989 the applicant filed a request for provisional release.

However, on 18 November 1989 the Investigating Judge number 1 (Juez de

Instrucción número Uno) of Vigo charged (auto de procesamiento) the

applicant with drug trafficking and illegal possession of firearms.

On 22 November 1989 the applicant appealed (recurso de reforma) against

this decision whilst requesting his conditional release. He renewed

this request on 22 December 1989, 20 April 1990, 28 May 1990, 19 July

1990 and 5 September 1990. By decision (auto) of 26 September 1990,

the Investigating Judge rejected the requests. The applicant lodged

an appeal against this decision on 1 October 1990, which appeal was

dismissed by the Audiencia Provincial of Pontevedra on 9 October 1990.

The Spanish authorities became aware at some time of the

existence of an important drug trafficking organisation against which

they launched a nationwide operation (operation "Nécora").

On 29 October 1990, as the applicant's case appeared to be

closely connected with that of several Spanish citizens also charged

with drug trafficking as part of the operation "Nécora", the cases were

joined. Accordingly the case was referred to the jurisdiction of the

Audiencia Nacional in Madrid.

On 19 November 1990 the applicant again filed a request for

provisional release but on 28 November 1990 the Public Prosecutor

opposed this request. On 30 November 1990 the Central Investigating

Judge number 5 accordingly rejected the applicant's request. Against

this decision the applicant lodged an appeal (recurso de apelación)

with the Audiencia Nacional which rejected the appeal on 30 April 1991.

The applicant's subsequent constitutional appeal (recurso de amparo)

was rejected by the Constitutional Court (Tribunal Constitucional) on

11 September 1991. It held that the charges justified the applicant's

detention and that the detention was therefore not in violation of the

presumption of innocence. With regard to the right to a trial within

a reasonable time it held that it was not called upon to decide on the

mere possibility that a certain delay might at some stage no longer be

reasonable.

Meanwhile, by order (auto de procesamiento) of 8 January 1991,

the Central Investigating Judge number 5 charged the applicant with

illegal possession of firearms and, together with co-suspects, with

participation in drug trafficking. On 12 January 1991 the applicant

appealed against these charges to the Audiencia Nacional which

dismissed the appeal on 8 July 1991.

On 25 February 1991 the Investigating Judge informed the

applicant of the Public Prosecutor's intention to have his provisional

detention prolonged up to the statutory maximum of four years as

stipulated by Article 504, 4° of the Act on Criminal Procedure (Ley de

Enjuiciamiento Criminal). By telegram of 30 January 1991 the applicant

introduced another request for provisional release. On 28 February

1991 the applicant objected to the Public Prosecutor's intention to

have his detention prolonged. On 6 March 1991 the Central

Investigating Judge number 5 postponed his decision on the prolongation

but maintained the applicant in provisional detention. On 8 May 1991

the Public Prosecutor requested that the maximum period of the

applicant's detention be extended for two more years. The applicant's

objections and request for release were dismissed by the Central

Investigating Judge number 5 who, on 22 May 1991, extended the maximum

period of the applicant's detention for two more years.

In connection with his requests for release the applicant has

offered bail.

During the preliminary investigations several of the fifty-four

suspects appealed against various judicial orders. On 19 February 1992

the Central Investigating Judge number 5 closed the preliminary

investigation.

Eventually, on 11 June 1992, the Audiencia Nacional ordered the

applicant's provisional release on bail.

The Audiencia Nacional concluded the preliminary investigations

and started the oral hearings (juicio oral) on 3 July 1992. On 15 July

1992 the Public Prosecutor submitted his provisional conclusions in

which he demanded a prison sentence of 14 years and a fine of 60

million pesetas against the applicant for illegal weapon possession and

for a crime against public health.

In July 1992 the final charges were being formulated. No further

information has been provided about the continuation of the

proceedings.

COMPLAINTS

1. The applicant complains under Article 5 para. 3 of the Convention

that the period of his detention on remand was not reasonable.

2. The applicant further complains under Article 6 para. 1 of the

Convention that the criminal charge against him has not been determined

within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 December 1991 and registered

on 21 January 1992.

On 1 April 1992 the Commission (Second Chamber) decided to

communicate the application to the respondent Government and invite

them to submit written observations on the admissibility and merits of

the application.

On 7 July 1992 the plenary Commission decided that the

application should remain before the Second Chamber.

The Government's observations were received by letter dated 23

July 1992, after an extension of the time-limit, and the applicant's

observations by letter dated 2 November 1992 after an extension of the

time-limit.

On 8 December 1992 the applicant was granted legal aid.

THE LAW

1. The applicant complains that the period of his detention on

remand was not reasonable. He invokes Article 5 para. 3 (Art. 5-3) of

the Convention which secures to "everyone arrested or detained in

accordance with the provisions of paragraph 1 (c)" of Article 5

(Art. 5-1-c) the right to be "brought promptly before a judge or other

officer authorised by law to exercise judicial power".

The Government submit that, having regard to the serious

character of the offence the applicant is being charged with and the

fact that the charges are also brought against 53 other suspects in a

large scale drug traffic, the case is very complex. This is also shown

by the fact that the criminal investigations included several

investigatory measures outside Spain and that the file of the

investigations covers 22.000 pages. Moreover, due to a number of

appeals lodged by several suspects during the investigations, the

opening of the trial was delayed. The Government are therefore of the

opinion that under these circumstances the time spent in detention on

remand by the applicant is reasonable.

They further argue that under Spanish law, when the suspect faces

a minimum prison sentence of 6 years, detention on remand can last up

to 4 years if it is expected that the trial will not take place within

2 years and that there is a risk that the detained person may abscond.

The applicant submits in particular that the respondent

Government's unfounded allegation that the case is unusual and complex

in no way justifies such a long period of detention on remand.

Moreover, the Spanish courts have rejected his numerous requests for

provisional release, despite his repeated offers of bail. He points

out that the purpose of bail is to diminish the risk of absconding.

In any event, he denies any link or involvement with the 53 other

suspects arrested in the framework of the operation "Nécora".

The Commission notes that the applicant was arrested on 26 May

1989 and was then detained until his release on 11 June 1992. His

detention therefore lasted for more than three years.

The Commission has taken cognizance of the parties' observations

and considers that this complaint raises serious questions of fact and

law which are of such complexity that their determination should depend

on an examination on the merits. This complaint can therefore not be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention. No other grounds for

inadmissibility having been established, this complaint should

accordingly be declared admissible.

2. The applicant further complains that he has not had a trial

within a reasonable time. He relies in this respect on Article 6 para.

1 (Art. 6-1) of the Convention which reads insofar as relevant:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a ... hearing within

a reasonable time by [a] ... tribunal ..."

The applicant argues that even in very complex cases a delay of

31/2 years between the arrest and the beginning of the trial is not

"reasonable" in the light of the Convention. In addition, despite the

Government's assurance that the case would be decided during the autumn

of 1992, no decision has been taken yet and since the case is deemed

to be so complex, this decision cannot be expected soon which makes the

delay all the more unreasonable.

The Government contend that the case at issue is very complex.

They submit that it concerns drug trafficking involving 54 suspects.

The complexity is also shown by the fact that the investigation file

covers 22.000 pages and that the investigations included several

investigatory measures outside Spain. Under these circumstances the

Spanish authorities have displayed particular diligence in bringing

this case as soon as possible before the competent court.

The Commission considers that the period to be taken into

consideration began on 26 May 1989, the day the applicant was arrested

and detained on remand. The main proceedings in the case started in

July 1992 and have not yet been concluded.

As to the reasonableness of the length of the proceedings, the

Commission recalls that it is to be assessed in the light of the

particular circumstances of the case, having regard to the criteria

laid down in the Court's case-law, in particular the complexity of the

case, the applicant's conduct and that of the competent authorities

(see, inter alia, Kemmache judgment of 27 November 1991, Series A no.

218, para. 60).

The Commission considers that the length of the proceedings in

the present case is mainly to be attributed to its complexity. The

Commission notes that the investigation concerned a large scale drug

traffic with international implications, that charges were brought

against 54 persons and that the case-file regarding the preliminary

investigation covered 22.000 pages. In these circumstances, the

Commission considers that the period of more than three years which it

took the Spanish authorities to complete the investigation and bring

the accused to trial cannot be regarded as unreasonable and contrary

to Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES ADMISSIBLE, without prejudging its merits, the

applicant's complaint under Article 5 para. 3 (Art. 5-3) of

the Convention as to the length of his detention on remand;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

Menu

A.T. v. SPAIN

A.T. v. SPAIN

LEXI