Information Note on the Court’s case-law 35

October 2001

Alvarez Sanchez v. Spain (dec.) - 50720/99

Decision 23.10.2001 [Section IV]

Article 6

Article 6-3-c

Defence through legal assistance

Failure of court-appointed lawyer to inform accused of notification of the judgment convicting him and of the time limit for lodging an amparo appeal: inadmissible

The applicant was found guilty of murder, with the aggravat ing factor of having committed previous similar offences, and was sentenced to fifteen years’ imprisonment. Represented by a barrister ( abogado ) and a solicitor ( procurador ) who were officially assigned, the applicant appealed on points of law to the Supre me Court. That court partly quashed the judgment appealed against by reducing the sentence to twelve years and one day. The judgment was served on the applicant’s legal representative – the officially assigned solicitor – who did not, however, inform the a pplicant of the Supreme Court’s judgment and did not lodge an amparo appeal with the Constitutional Court within the statutory time-period. The applicant’s conviction was declared final by the first-instance court. The applicant subsequently found out from his fellow inmates that the Supreme Court had given judgment. He wrote to the Constitutional Court, stating that the Supreme Court’s judgment had not been served on him and that he wished to appeal, and asked for his officially assigned barrister to repre sent him in the appeal proceedings. Very shortly afterwards he submitted a memorial containing his appeal, which he had written himself. He received a copy of the judgment appealed against; subsequently, the two representatives assigned at the Constitution al Court’s request formally lodged an amparo appeal, more than a year and a half after the judgment in question had been served on the applicant’s legal representative. The appeal was declared inadmissible as being out of time: the Constitutional Court hel d that the twenty days allowed by law for lodging an amparo appeal had begun to run on the date on which the impugned judgment had been served on the applicant’s legal representative. The applicant alleged that he had had no effective access to the remedy of an amparo appeal to the Constitutional Court, on account of shortcomings on the part of his legal representatives.

Inadmissible under Article 6 § 1 and § 3 (c): Holding a State responsible for the inadequate manner in which an officially assigned solici tor, whose task was to represent rather than to defend an accused, dealt with a case would suggest that the State was at the same time empowered to supervise and regulate the solicitor’s conduct if necessary. Such supervision would be incompatible with the independence of the solicitors’ professional body vis-à-vis the State. In addition, problems might be created as regards equality of arms in judicial proceedings if a court were to point an officially assigned solicitor in a particular direction by sugges ting that he lodge an amparo appeal with the Constitutional Court. In the instant case the applicant had been assisted throughout the proceedings by officially assigned representatives who had obtained a reduction in his sentence on appeal. The purpose of the appeal to the Constitutional Court on which his complaints were based had been to secure a review not of the merits of his conviction or of the length of the sentence imposed on him but of whether his fundamental rights had been respected. The point in issue, therefore, was not the lack of effectiveness of the applicant’s defence in a court with jurisdiction to try the merits of the case, but his access to a court with the specific function of protecting fundamental rights. The applicant’s complaints th at his officially assigned solicitor had, through negligence, infringed his right to effective legal assistance did not directly and immediately engage the State’s responsibility. Having regard to the foregoing and to the differences between the instant ca se and the Artico, Daud and Kamasinski cases in terms of the seriousness of the problems raised by the shortcomings of officially assigned legal representatives and the question whether the   effective enjoyment of the applicant’s defence rights had been s ecured, the Court concluded that the complaints were manifestly ill-founded.

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

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