THIRD SECTION

DECISION

Application no . 23486/12 Marcial DORADO BAÚLDE against Spain

The European Court of Human Rights (Third Section), sitting on 1 September 2015 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Kristina Pardalos , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , Branko Lubarda , judges,

and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 3 April 2012 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Marcial Dorado Baúlde , is a Spanish national, who was born in Pontevedra on 1950 . He is represented before the Court by Mr M.A. Tuero Madeido , a lawyer practising in Madrid .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 6 November 2003 the applicant was arrested and accused of drug trafficking. He was on pre-trial detention until 31 December 2003, when he was released on bail. On 16 November 2009 the Audiencia Nacional found the applicant and the other 17 defendants guilty of drug trafficking and sentenced him to ten years ’ imprisonment. According to the judgment, the applicant was a member of a criminal organization that smuggled cocaine into Spain.

4. On 1 December 2009 Protocol No. 7 came into force in respect of Spain.

5. On 3 February 2010 the applicant brought a cassation appeal before the Second Chamber of the Supreme Court, alleging, in substance, the existence of numerous violations of his right to a fair trial during the proceedings and that the appeal procedure before the Supreme Court violated his right to have a sentence and conviction reviewed by a higher court, for the procedure before the Supreme Court, according to Articles 847-852 of the Code of Criminal Procedure (and the Supreme Court ’ s own jurisprudence), was limited in its scope and did not allow the Supreme Court for a full review of evidence and the facts of a case. On 12 April 2011, the Supreme Court issued a judgment dismissing the applicant ’ s appeal. As regards the applicant ’ s particular complaint concerning the right to have his conviction and sentence reviewed by a higher court , the Supreme Court stated that the scope of the appeal before the Supreme Court was in conformity with international standards, for it allowed a control of the legality of the evidence and its “reasonable assessment”, as well as the revision of the conviction and the subsequent sentence.

6. On 27 May 2011 the applicant lodged an amparo appeal with the Constitutional Court, claiming the violation of his fundamental rights protected by Articles 18 (secret of communications) and 24 (right to a fair trial) of the Spanish Constitution. On 28 September 2011 the appeal was declared inadmissible in a decision served to the applicant on 3 October 2011 , on the ground that it lacked the constitutional relevance provided for in Article 49 § 1 of the Organic Law on the Constitutional Court.

B. Relevant domestic law

1. Spanish Constitution

7. Article 10 § 2 provides as follows:

“The provisions relating to the fundamental rights and freedoms recognized under the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and the international treaties and agreements which Spain has ratified in that sphere.”

8. Article 24 reads as follows:

“1. All persons have the right to obtain effective protection by the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence .

2. Likewise, all have the right to the ordinary judge predetermined by law; to defence and assistance by a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence ; not to make self-incriminating statements; not to plead themselves guilty; and to be presumed innocent....”

2. Code of Criminal Procedure

9. Article 847, which governs the appeal pro cedure before the Supreme Court, states that:

“The cassation appeal can only be filed either when the law is deemed to have been violated or for failure to observe essential procedural requirements against: a) the judgments issued by the Civil and Criminal High Courts of Justice in first or second instance; and b) the judgments issued by the Courts after an oral hearing which are final in a first instance”.

COMPLAINTS

10. Invoking Article 2 of Protocol no. 7 to the Convention and Article 13 in conjunction with Article 6 of the Convention, the applicant alleged that his right to have his conviction and sentence reviewed by a higher court was violated because of the limited scope of cassation appeals in the Spanish judicial system, which do not allow for a full review of the facts and evidences of a case.

11 . The applicant also complained of a number of breaches of the guarantees of fair trial as laid down in Article 6 and Article 8 in conjunction with Article 6 of the Convention.

THE LAW

A . Complaints under Article 2 of Protocol N o. 7 to the Convention and Article 13 in conjunction with Article 6 of the Convention

12. Invoking Article 2 of Protocol N o. 7 to the Convention and Article 13 in conjunction with Article 6 thereto, the applicant argued that his right to the review of his conviction and sentence by a higher tribunal was violated, since the Audiencia Nacional ’ s judgment was subject to judicial review by the Supreme Court (through a cassation appeal) on very limited legal grounds where there was no possibility of a re-evaluation of the evidence, as all factual determinations by the lower court, the Audiencia Nacional , were final.

13. Article 2 of Protocol No. 7 reads as follows:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal. ”

14. The explanatory report to Protocol no. 7 to the Convention specifically addresses in its paragraph 18 the scope of the right to appeal in criminal matters:

“ Different rules govern review by a higher tribunal in the various member States of the Council of Europe. In some countries, such review is in certain cases limited to questions of law, such as the recours en cassation . In others, there is a right to appeal against findings of facts as well as on the questions of law. The article leaves the modalities for the exercise of the right and the grounds on which it may be exercised to be determined by domestic law ” .

15. The Court reiterates that the Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law (see Krombach v. France , no. 29731/96, § 96 , ECHR 2001 ‑ II , and Shvydka v. Ukraine, no. 17888/12 , § 49, 30 October 2014 ) . In this regard, the Contracting States may limit the scope of the review by a higher tribunal by virtue of the reference in paragraph 1 of Article 2 of Protocol No. 7 to national law (see Müller v. Austria (no. 2) , no. 28034/04, § 37 , 18 September 2008 ). In several member States of the Council of Europe such a review is limited to questions of law or may require the person wishing to appeal to apply for leave to do so (see Pesti and Frodl v. Austria ( dec. ), nos. 27618/95 and 27619/95, ECHR 2000 ‑ I (extracts) ).

16. In the present case, the Supreme Court reiterated in its judgment of 12 April 2011 that the appeal against the Audiencia Nacional ’ s judgment afforded the applicant the right to have his conviction and sentence reviewed by a higher Tribunal and that this sufficed for the appeal to be considered in conformity with international standards. The Court sees no reason to depart from this conclusion, given the wide margin of appreciation that States enjoy when it comes to determine the scope of this particular right . Additionally, the Court observes that the Supreme Court judgment was subject to further review by the Constitutional Court, which reinforced the applicant ’ s right to a judicial review of the judgment.

17. In view of the foregoing considerations, this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Other complaints

19. The applicant alleged in substance other violations of Article 6 and Article 8 of the Convention.

20. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible and must be rejected pursuant to Article 35 § § 1, 3 and 4 of the Convention .

For these reasons, the Court by a majority

Declares the application inadmissible.

Done in English and notified in writing on 24 September 2015 .

Stephen Phillips Josep Casadevall Registrar President