Information Note on the Court’s case-law 190

November 2015

Otegi Mondragon and Others v. Spain (dec.) - 4184/15, 4317/15, 4323/15 et al.

Decision 3.11.2015 [Section III]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Alleged lack of impartiality on account of Constitutional Court’s judge’s previous party political affiliation: inadmissible

Facts – In 2011 the applicants were convicted by the A udencia Nacional of belonging to a terrorist organisation (the ETA) and given a prison sentence. They unsuccessfully appealed to the Supreme Court and in 2012 lodged amparo appeals with the Constitutional Court. Some of the applicants complained that one o f the judges of the Constitutional Court had previously been affiliated to the ruling political party ( Partido Popular ) and thus had an interest in the outcome of the proceedings and was not impartial. The Constitutional Court ruled against the applicants noting that the judge was no longer affiliated to the party.

Law – Article 6 § 1: There was no indication of subjective bias on the part of the judge concerned. As regards the objective test, the question was whether the fact of having previously belonged to a political party was enough to cast doubt on a judge’s impartiality. The judge concerned had been a member of the ruling party from 2001 till 2011, while the amparo appeals had been introduced in 2012. That previous membership had not had any connectio n with the substance of the case before the Constitutional Court. Additionally, under the domestic legislation, membership of a political party was not per se incompatible with the post of judge at the Constitutional Court. The judge had been a mere member of a political party without any management functions and had not taken part in any party activity concerning the accusations formulated against the applicants, or the consequent proceedings. Thus the applicant’s fear due to the mere fact of the judge’s p revious political affiliation was not objectively justified.

Conclusion : inadmissible (manifestly ill-founded).

The Court also declared inadmissible as manifestly ill-founded a further complaint concerning the alleged lack of impartiality of one of the C onstitutional Court’s judges and communicated a complaint concerning the alleged lack of impartiality of the Audencia Nacional .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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