FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39404/98

by Robert Charles ASHBY

against Spain

The European Court of Human Rights ( Fourth Section) sitting on 12 janvier 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr I. Cabral Barreto ,

Mrs N. Vajić , Judges ,

with Mr V. Berger, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 October 1997 by Robert Charles ASHBY  against Spain and registered on 17 January 1998 under file no. 39404/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1919 and resident in Torquay, Devon ( United Kingdom ).

a. The particular circumstances of the case

The facts, as they have been presented to the Court by the applicant, can be summarised as follows.

On an unspecified date, the applicant introduced to the first instance court N o 4 of Marbella an action for payment of a sum of money against a public limited company. On 31 October 1994, the first instance court dismissed the applicant’s claim on the ground that the applicant had not proved the debt he claimed. The applicant presented an appeal to the Audiencia provincial of Málaga . In the proceedings, the applicant was represented by a lawyer, Mr. B. The hearing before the Audiencia provincial took place on 20 December 1995. The applicant asserts that at the beginning of the hearing, a few minutes after his counsel, Mr. B., started his submissions, the president of the court asked him to conclude and deprived him of the right to speak, preventing the applicant’s lawyer from presenting whatever arguments he might deem appropriate in defence of his interests. The applicant’s counsel objected to this breach of his right to speak and his objection was officially registered by the court.

By a judgment of 27 December 1995, the Audiencia provincial upheld the impugned judgment on the ground that the applicant had not adduced sufficient evidence to establish the debt he claimed. The applicant lodged an appeal on points of law to the Tribunal Supremo invoking a lack of impartiality of the Audiencia provincial since two of the three magistrates composing the court had been challenged by the applicant’s counsel in another case and therefore should have withdrawn. The applicant also complained of the violation of the right of defence since the conduct of the president of the court during the hearing, depriving the applicant’s counsel of his right to address the court, had prevented him of explaining the arguments in support of his claim.

By a decision of 17 September 1996, the Tribunal Supremo rejected the appeal. With regard to the allegation of lack of impartiality, the court declared that neither at the beginning of the hearing nor previously, had the applicant’s counsel submitted any ground of challenge against the judges composing the Audiencia provincial . Concerning the alleged violation of the right of defence due to the deprivation of the counsel’s right to address the court during the hearing before the Audiencia provincial , the court stated that, according to Article 331 et seq. of the Spanish Code of Civil Procedure, the president of the court was authorised to prevent the lawyer making further intervention ; consequently, in order to raise this complaint the applicant should have substantiated the violation and not limited his allegation to a simple rhetorical question.

The applicant lodged an amparo appeal with the Constitutional Court, relying on the right to a fair hearing, as his lawyer had been deprived of the right to speak at the hearing, preventing him from stating the legal argument in support of his claim, and a lack of impartiality of the Audiencia provincial, since two of the judges had been challenged by the applicant’s counsel previously. He invoked Article 24 of the Spanish Constitution (right to a fair hearing).

By a decision of 23 June 1997 the Constitutional Court dismissed the appeal on the ground that it had no constitutional relevance, observing that the examination of the judgment of the Audiencia provincial showed that the refusal to let the applicant’s lawyer continue his address to the court had not entailed any material prejudice to the defence of the applicant and that Articles 331 and 332 of the Code of Civil Procedure authorised the president of the court to take this measure.

b. Relevant domestic law

Code of Civil Procedure

Article 330 :

“The hearings will start with a concise explanation by the registrar of the proceedings in the case ... and afterwards the parties’ lawyers will present their submissions in order. They will take the floor for a second time, with the permission of the president, to rectify facts or legal concepts ...”

Article 331 :

“ The parties to the proceedings may, with the permission of the president, state orally whatever they consider appropriate to their case at the end of the hearing, before the conclusion of the hearing ...

The president will give them the floor as far as they restrict their intervention to the facts and respect due decorum.”

Article 332 :

“The president will draw the attention of a lawyer who clearly transgress from the case in his address or wastes time with inappropriate and unnecessary digressions and, if the lawyer persists after two warnings, the president will order him to end his address.”

COMPLAINTS

The applicant alleges a violation of the right to an impartial tribunal guaranteed by Article 6 § 1 of the Convention. He insists that two of the judges composing the Audiencia provicial of Málaga had been challenged by his lawyer. Consequently, the two judges should have abstained from taking part in the proceedings.

The applicant also complains that during the hearing before the Audiencia provincial his lawyer was prevented by the president of the court from addressing the court seriously infringing the right of defence and causing him undeniable prejudice. He invokes Article 6 § 1 of the Convention.

THE LAW

1. Invoking Article 6 § 1 of the Convention, the applicant alleges a violation of the right to an impartial tribunal since two of the judges composing the Audiencia provincial of Málaga had been challenged by his lawyer and consequently they should have abstained from taking part in the proceedings.

The relevant part of Article 6 § 1 of the Convention provides :

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...”

The Court is not required to decide whether or not the facts submitted by the applicant disclose any appearance of a violation of the Convention. The Court observes that the Tribunal Supremo rejected this complaint on the ground that neither at the beginning of the hearing before the Audiencia provincial nor previously had the applicant’s counsel submitted any ground of challenge against the judges composing the Audiencia provincial . Consequently, the applicant has not exhausted the domestic remedies available to him. It follows that this part of the application must be rejected under Article 35 § 1 of the Convention.

2. The applicant also complains that during the hearing before the Audiencia provincial his lawyer was prevented by the president of the court from addressing the court seriously infringing the right of defence and causing him an undeniable prejudice. He invokes Article 6 § 1 of the Convention.

The Court considers that this complaint raises complex issues of fact and law and that it cannot, on the basis of the file, determine its admissibility at this stage. It is therefore necessary, in accordance with Article 54 § 3 (b) of the Rules, to request the observations of the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint that during the hearing before the Audiencia provincial his lawyer was prevented by the president of the court from continuing his address to the court (Article 6 § 1 of the Convention).

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President