Information Note on the Court’s case-law 18

May 2000

Ubach Mortes v. Andorra (dec.) - 46253/99

Decision 4.5.2000 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Allegations of unfair proceedings relating to misappropriation of public funds: inadmissible

Article 6-3-d

Examination of witnesses

Failure to appear of key witness, a foreign national living abroad: inadmissible

Until 1993 the app licant was the head of the body charged with management of the Andorran social security system. From the mid-1980s onwards he followed a policy of investing part of the retirement pension fund by buying company stock or variable-rate bonds. In a number of judgments the Andorran courts found that the applicant, aided and abetted by a Spanish national, Mr J.M.R., had used large sums of money to make investments in Spain through a Spanish company - on several occasions without the agreement of the social secur ity fund’s governing body. The pension fund sustained heavy losses as a result. By a judgment delivered after a public, adversarially conducted trial, the Tribunal de Corts found the applicant guilty of misappropriating public funds and forging official do cuments, and sentenced him to nine years’ imprisonment and payment of a heavy fine. At the beginning of his trial in the Tribunal de Corts the applicant had complained of the absence of J.M.R. The court replied that the latter had produced a medical certif icate justifying his absence, that as he was a Spanish national in Spain the warrant for his arrest could not be enforced and that any move made by the Andorran courts to secure his extradition would be doomed to failure. In addition, the court based its d ecision on evidence freely discussed at a public hearing, particularly the applicant’s written statements, the testimony of numerous witnesses, auditors’ reports and documentary evidence. An appeal by the applicant was dismissed by the Andorran High Court after adversarial proceedings. Following the entry into force of the Constitutional Court Act and pursuant to its third transitional provision, the applicant appealed directly to the Constitutional Court (remedy of empara ) against the High Court’s judgment . The appeal was dismissed.

Inadmissible under Article 6 § 1 (fair trial, equality of arms), § 2 and § 3 ( b) and (d): The Andorran courts had found the applicant guilty of certain crimes in judgments for which ample reasons had been given, basing their decisions on evidence taken during the judicial investigation which had been freely discussed at the applican t’s trial, and had found that evidence to be sufficient. The trial courts had given a particularly detailed account of the facts before finding the applicant guilty. The latter, assisted by a lawyer, had had the opportunity to question the witnesses at his trial and to rebut the various witness statements and expert reports incriminating him during the proceedings. There was therefore no appearance of a violation by the Andorran courts of the Convention provisions concerned.

The mere fact that the prosecuti on had had longer to submit an expert opinion than the applicant was not sufficient to warrant the conclusion that there had been an infringement of the principle of equality of arms, since the difference in treatment complained of had not prevented him fr om submitting his own expert report.

The applicant had also complained that he had been unable to examine or have examined Mr J.M.R., who was the principal witness in the case. An accused did not have an unlimited right to have witnesses summoned to attend judicial proceedings. It was for the domestic courts to decide whether it was appropriate to summon a witness. In the present case, the Andorran courts could not be held responsible for J.M.R.’s failure to appear, having admitted that this was not possibl e since J.M.R. was in Spain and had produced a medical certificate justifying his absence. Moreover, the applicant had not convincingly explained why J.M.R.’s evidence would have been decisive. While J.M.R.’s absence might have affected some of the evidenc e the applicant had wished to adduce, that had not prevented him from exercising his defence rights: 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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