THIRD SECTION

DECISION

Application no. 71585/17 Juan MARTINEZ ALMAGRO against Spain

The European Court of Human Rights (Third Section), sitting on 14 December 2021 as a Committee composed of:

Darian Pavli, President, María Elósegui, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 71585/17) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 September 2017 by a Spanish national, Mr Juan Martínez Almagro, who was born in 1971 and lives in Almería (“the applicant”), and was represented before the Court by Ms A. Barba García, a lawyer practising in Malaga;

the decision to give notice of the application to the Spanish Government (“the Government”), represented by their Agent, Mr Alfonso Brezmes Martínez de Villareal, State Counsel and head of the Human Rights Department at the Ministry of Justice;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the right to effective legal assistance in criminal proceedings. In the context of criminal proceedings against the applicant before the Audiencia Nacional , his initial legal representative resigned fifteen days before the hearing, citing professional reasons. A second representative also resigned, stating that he had to travel abroad. Eight days before the hearing the applicant was assigned a court-appointed lawyer, who requested a twenty-day adjournment of the hearing in order to adequately prepare the applicant’s defence. His request was rejected by the Audiencia Nacional which found that the quantity of documents could be assessed in eight days. The case file included, essentially, statements by four accused, statements by the police officers who had carried out the investigation, expert reports pertaining to the nature and value of the illicit substances seized, and the transcripts of 27 telephone conversations. Subsequently, at the beginning of the trial, the applicant requested a change of lawyer, but the court refused his request and concluded that the lawyer was sufficiently aware of the facts and nature of the charges and could ensure an effective defence. The Audiencia Nacional found the applicant guilty of drug-related offences where he had played a leading role in a criminal organisation, convicted the applicant of endangering public health, sentencing him to eight years’ imprisonment and a fine of 1,200,000 euros. On 19 October 2016 the Supreme Court dismissed the appeal. Noting the absence of any concrete disadvantages to the defence allegedly suffered by the refusal to delay the trial, it considered that the Audiencia Nacional had rightly struck a balance between the rights of defence and avoiding delay of the proceedings. An amparo appeal lodged by the applicant was declared inadmissible owing to the lack of any justification of its constitutional relevance.

2. Relying on Article 6 § 3 (b) of the Convention, the applicant complained of the lack of time allowed for his representative to adequately prepare his defence.

THE COURT’S ASSESSMENT

3. The applicant submitted that the refusal of the Audiencia Nacional to suspend the hearing had deprived his lawyer of adequate time to prepare his defence.

4. The Government argued that the applicant had not complied with the legal requirement of substantiating the constitutional significance of his case before the Constitutional Court. They referred to Arribas Anton v. Spain (no. 16563/11, 20 January 2015) and Alvarez Juan v. Spain ((dec), no. 33799/16, 20 September 2020) and pointed out that this was a legal burden, not a requirement laid down by the Constitutional Court, and that failure to discharge it constituted an irremediable defect.

5. The applicant contended that he had exhausted all domestic remedies since it was sufficient for the national courts to be given an opportunity to acknowledge the substance of the harm sustained, in accordance with procedural rules (he cited Karapanagiotou v. Greece , no. 1571/08, § 26, 28 October 2020).

6. The Court does not consider it necessary to reach any conclusion on the above issue since, for the reasons set out below, it considers this complaint to be manifestly ill-founded.

7. The Government contended that it could not be argued that the time given for studying the case file had been insufficient. They referred to Mattick v. Germany ((dec.), no. 62116/00, ECHR 2005 ‑ VII), in which it had been considered acceptable to receive expert reports three days before the trial. The Government submitted that the present case differed from Gregačević v. Croatia (no. 58331/09, 10 July 2012) in respect of both the complexity of the case and the time allotted for preparing the defence.

8. Furthermore, the Government argued that the Audiencia Nacional had weighed the applicant’s right to a defence with the need to ensure a trial without undue delay and had reached a conclusion within its margin of appreciation.

9. The applicant submitted that eight days had not been sufficient for his lawyer to study the entire case file, in particular to verify the wiretap recordings and read all the documents. He contended that his request for a twenty-day adjournment of the hearing for the preparation of the trial should have been granted by the Audiencia Nacional so that the lawyer could read the documentation, listen to the wiretap recordings, study the expert evidence and meet with the experts if necessary. Lastly, he added that there had been no abuse of procedure on his part. The first appointed lawyer had resigned unilaterally. The applicant had appointed the second lawyer without knowing that he was not in Spain at the time. Lastly, at the beginning of the trial the applicant had tried to change the court-appointed lawyer who had been assigned to him because he had not had time to prepare for the trial.

10. The question of adequacy of time and facilities afforded to an accused cannot be addressed in abstracto , but only in relation to the circumstances of the case (see Iglin v. Ukraine , no. 39908/05, § 65, 12 January 2012). When determining the length of the preparatory time needed, not only does the complexity of the case needs to be taken into account, but also the usual workload of a lawyer, who certainly cannot be expected to change his or her whole programme to devote all his or her time to one case. However, it is not unreasonable to require a defence lawyer to arrange for at least some shift in the emphasis of his or her work if this is necessary given the special urgency of a particular case (see Mattick , cited above). Finally, the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010).

11. The applicant was represented by a lawyer from the outset of the proceedings. However, this lawyer resigned a few days before the appeal trial was scheduled. For this reason the applicant appointed another lawyer, without first contacting that lawyer to obtain confirmation that he could accept the appointment. As the second lawyer did not accept his appointment, eight days before the trial the trial court provided the applicant with a legal aid lawyer. The following day, the lawyer was given all the documents and met with the applicant.

12. Domestic legislation provided that the court could suspend a trial once it had started if the defence did not have any relevant evidence prepared. In this connection the Audiencia Nacional made an assessment of the lack of defence alleged by the applicant’s counsel. It justified its decision not to suspend the trial by the need to ensure the speed of the proceedings as the accused was in pre-trial detention. In the light of the defence provided by his lawyer, it concluded that it had not observed any lack of defence. There was nothing to suggest that his lawyer had not sufficiently studied the evidence submitted for trial.

13. The domestic court went on to explain that since the wiretap recordings were transcribed, the lawyer was not required to listen to them; it was sufficient to read the records in the documents submitted by the prosecution. Furthermore, the applicant did not point out in his cassation or amparo appeals which specific evidence he had been unable to study or submit to be examined during the trial owing to lack of preparation and which might have influenced the outcome (see Mayzit v. Russia , no. 63378/00, § 78, 20 January 2005). The appeals did not explain the reasons why the new lawyer had been unable to contact the applicant’s previous lawyer, nor did they justify the applicant’s decision to appoint a lawyer without knowing whether he would accept, which, according to the national courts, was clear evidence of the applicant’s intention to delay the proceedings.

14. The Court notes, overall, that even if the criminal case against the applicant was of certain complexity, the appointment of a new lawyer eight days before the appeal hearing did not affect the rights of the defence to an extent that would affect the essence of the right guaranteed by Article 6 §§ 1 and 3 (b) of the Convention. The applicant was at all times represented by lawyers in the proceedings and could prepare his defence with them despite a change in council prior to the hearing. Importantly, the applicant was not limited in the number and duration of his meetings with the lawyers (compare with Lambin v. Russia , no. 12668/08, §§ 45-46, 21 November 2017, with further references).

15. All of the above leads the Court to the conclusion that the balancing exercise carried out by the domestic courts, mainly the Audiencia Nacional and the Supreme Court, was neither unreasonable nor clearly arbitrary or blatantly inconsistent with the fundamental principles of the Convention. The applicant was indeed defended throughout the proceedings and has not clearly stated which evidence he was not able to use or in which concrete way his lawyer was unable to adequately prepare his defence. The domestic courts explained why they considered that the case-file had not been particularly complex and how they aimed to avoid delays in the proceedings, without jeopardising the rights of the defence (see paragraph 1 above).

16. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the above considerations lead to the Court to the conclusion that the applicant’s complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

17. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

Olga Chernishova Darian Pavli Deputy Registrar President