Information Note on the Court’s case-law 16

March 2000

Garrido Guerrero v. Spain (dec.) - 43715/98

Decision 2.3.2000 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Impartiality of judge having previously participated in confirmation of indictment: inadmissible

In an order made by Madrid Central Military Judge No. 1 the applicant, a regular soldier, was charged with committing an offenc e lodged against the Treasury. He appealed against that order to the Central Military Court. That court, on which D.R.G. – a judge from the army’s legal corps – sat among others, dismissed the appeal. After the trial stage had begun, Judge P.G.B. was appoi nted as judge rapporteur and conducted the judicial investigation. The division of the Central Military Court before which the public hearing was held was made up of five judges, among them D.R.G. and P.G.B. In a decision of 21 March 1994 the applicant was found guilty and sentenced to a one-year prison term. The applicant appealed on points of law to the Supreme Court, alleging, in particular, that the trial court had not been impartial owing to the plurality of functions of Judges D.R.G. and P.G.B. The Su preme Court and later the Constitutional Court dismissed the appeals.

Inadmissible under Article 6 § 1 (impartial tribunal/fair trial): The personal impartiality of Judge D.R.G. had not been challenged. With respect to the objective test, on the one hand J udge D.R.G., who had sat on the trial court, had indeed earlier been a member of the bench which had affirmed the order in which the applicant had been charged and, on the other hand, in its decision of 21 March 1994 the court on which D.R.G. had sat had i ndeed adopted the terms of the order charging the applicant. However, contrary to what had happened in the Castillo Algar case, the appellate court in the instant case had taken care to state the limits of the indictment and as the decision had been a prov isional procedural one, it did not prejudge the outcome of the proceedings. Moreover, in the instant case, again unlike the position in the Castillo Algar case, Judge D.R.G. had sat as an ordinary judge in the Central Military Court division made up of fiv e judges. The fears of bias were therefore not objectively justified. As far as Judge P.G.B. was concerned, the mere fact that he had taken part in certain investigations as judge rapporteur at the trial stage could not justify fears as to his impartiality : 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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