THIRD SECTION

Application no. 61112/12 Jorge GOMEZ OLMEDA against Spain lodged on 11 September 2012

STATEMENT OF FACTS

The applicant, Mr Jorge Gomez Olmeda , is a Spanish national, who was born in Cáceres on 2 March 1967 and lives in Plasencia , Cáceres .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 3 January 2011 following a trial, Plasencia criminal judge no. 1 sentenced the applicant to six months ’ imprisonment for serious disobedience to a public authority. The applicant was acquitted, however, of other charges against him, namely defamation, proffering insults and concealment.

The judge established that the applicant was the webmaster of an Internet forum on which defamatory messages against the complainants in the proceedings had been published, and that he had deliberately disregarded the request made to him by a police officer within the framework of the criminal investigation not to alter the messages in question. In fact, the applicant had proceeded to have the forum webpage removed altogether, despite the police officer ’ s request to leave it unchanged. As regards the charges of defamation and proffering insults, the judge held that there were reasonable doubts as to whether the applicant had been aware of the messages in question before his police interview and that he should therefore be acquitted in that regard. It was also alleged that the applicant had protected the individuals who had made the defamatory statements; however, the judge considered that the applicant could not be found guilty of concealment as it had not been proved that he had been aware, at the time of his police interview that it had been possible for him to access the Internet Protocol (IP) numbers of the participants in the forum.

Both the prosecution and defence appealed against the decision before the Cáceres Audiencia Provincial , which on 16 May 2011 upheld the applicant ’ s conviction for serious disobedience to a public authority and, contrary to the decision of the first-instance judge, found him guilty of continuous public defamation. His punishment was a daily fine of 15 euros (EUR) for a period of six months. He was also required to pay damages. In finding the applicant guilty, the appellate court expressly acknowledged that it had relied on the facts established by the first-instance judge and on the evidence given by the complainants and the applicant in the earlier trial. The court stated:

“We disagree with the accused when he states that he was unaware of what was written on the forum, the argument on which the first-instance judge relied to acquit the defendant of defamation and proffering insults. And we disagree for the following two reasons. Firstly, because it was part of his duties as administrator of the forum to be aware of what was written on it, in so far as he was, so to speak, its ‘ censor ’ on account of the fact that he created it; and secondly, because it is untrue that he was unaware of what was written on it, since he had removed some phrases and messages which were insulting to the complainants, thus proving that he had read what was written on the forum in question and demonstrating that he had regarded what was written there as insulting to a specific individual or individuals, which led him to the decision to remove what he regarded as defamatory or insulting.”

From the case file it appears that no hearing was held in the appellate court. Instead, the court watched a video-recording of the trial.

The applicant lodged an appeal, applying to have the proceedings before the Audiencia Provincial declared void. His appeal was dismissed on 29 September 2011 on the grounds that no legal provision had been infringed, nor had any of the applicant ’ s rights been breached in those proceedings.

The applicant lodged an amparo appeal with the Constitutional Court. He cited Article 24 of the Constitution (right to a fair hearing ), complaining that the Audiencia Provincial had convicted him on appeal without giving him the opportunity to plead his case in open court.

By a decision served on 13 March 2012 the Constitutional Court declared the applicant ’ s amparo appeal inadmissible as it was devoid of any special constitutional significance.

B. Relevant domestic law and practice

The relevant provision of the Spanish Constitution reads as follows:

Article 24

“1. Everyone has the right to obtain the effective protection of judges and the courts in the exercise of his or her legitimate rights and interests, and in no event may he or she go undefended.

2. Likewise, everyone has the right of access to the ordinary courts as predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against him or her; to a public hearing without undue delays and with full guarantees; to the use of evidence appropriate to his or her defence; not to make self-incriminating statements; not to declare himself or herself guilty; and to be presumed innocent.”

The relevant provisions of the Spanish Criminal Code read as follows:

Article 30

“1. In the case of both serious and minor offences committed by the use of media or mechanical means of dissemination, neither accomplices nor those who have personally and actually facilitated the commission of such offences shall be held criminally liable.

2. The principals to whom Article 28 refers shall be held criminally liable in a series of stages, in an exclusive and subsidiary fashion, in the following order:

(1) Those who actually wrote the text or produced the symbol in question and those inducing the commission of those acts.

(2) The directors of the publication or broadcast through which the material has been disseminated.

(3) The directors of the publishing, issuing or broadcasting company.

(4) The directors of the recording, production or printing company.

... ”

Article 205

“Defamation means accusing someone of committing a criminal offence, while being aware that the accusation is false or with reckless disregard for the truth.”

Article 208

“Acts or expressions which undermine another ’ s dignity by attacking his or her reputation or self-esteem shall constitute insults.

Only insults which, by virtue of their nature, effects and context, are generally acknowledged to be serious shall constitute an offence . ...”

Article 211

“Defamatory statements and insults shall be regarded as made public when they are circulated by printing, broadcasting or by any other media having a similar effect.”

The Constitutional Court has had the opportunity on many occasions to rule on the right to be heard in criminal proceedings when the defendant has been acquitted by the first-instance court of committing an offence but has been subsequently convicted on appeal. The Constitutional Court has reiterated its case-law in, for example, its judgment in the recent case no. 144/2012 of 2 July 2012, which states:

“ ...

2. As regards the first violation alleged, which concerns the right to a fair hearing and which is attributable to the appellate court, it is worth pointing out, even briefly, that our well-established constitutional case-law ‒ established for the first time in our judgment no. 167/2002 of 18 September and reiterated in many subsequent judgments ‒ to the effect that respect for the principles of a public hearing, immediacy and adversarial procedure, which are aspects of the fundamental right relied on, inexorably require that every conviction based on oral evidence ( pruebas personales ) should be founded on material obtained as a result of a direct and personal examination by the adjudicating court in a hearing complying with the adversarial principle. Thus, when in an appeal new questions of fact arise from the assessment and balancing of oral evidence on which the conviction or the acquittal depends, it will be necessary to hold a public hearing at second instance so that the appellate court is able to make its decision based on a direct and immediate examination of that evidence. Respect for the principles of a public hearing, immediacy and adversarial procedure requires the appellate court to examine directly the witnesses, experts and the accused who give evidence in the proceedings, in view of the personal nature of such evidence, so it can conduct its own assessment and balancing exercise before correcting the assessment made by the first-instance court (see, among other authorities, judgments no. 118/2009 of 18 May, LR 3; no. 214/2009 of 30 November, LR 2; and no. 30/2010 of 17 May, LR 2). In this connection, we have stressed that the appellate court cannot change the established facts in order to convict the accused if that change is not preceded by a direct and personal examination of the accused and the witnesses at a public hearing complying with the adversarial principle (see, among other authorities, judgments no. 60/2008 of 26 May, LR 5, and 188/2009 of 7 September, LR 2).

However, we have stated that when the appellate court limits itself to rectifying the inferences drawn by the first-instance court from facts that have been proved at first instance, we are then faced with a question that can be adequately decided on the basis of the case file, so a new hearing and direct examination are not required to guarantee a fair trial (judgments no. 43/2007 of 26 February, LR 5; no. 38/2008 of 25 February of 25 February, LR 5; and 46/2011, of 11 April, LR 2). As we mentioned in our judgment no. 75/2006 of 13 March, “this deductive process, in so far as it is based on rules of experience which do not depend on immediacy, can be fully reviewed by the appellate courts without entailing any loss of constitutional protection” (LR 6). We have also stated that the aforementioned constitutional case-law is not applicable when the basic disagreement between the first-instance judgment and the appeal judgment strictly concerns the legal categorisation of the facts that were established by the court which first decided on them, since the task of deciding whether certain acts fall under a particular offence does not require judicial immediacy (judgments no. 34/2009 of 9 February, LR 4; and 120/2009 of 18 May, LR 4, amongst other authorities).

This having been said, we have also specified that no complaint of unconstitutionality can be made when the conviction on appeal (both in cases in which the appellant has been acquitted at first instance and in cases in which the appeal judgment worsens his or her situation) is based on the examination of evidence which when produced does not require the presence of the court for its assessment, even though the facts which have been established at first instance are changed as a result. Accordingly, immediacy is not required in connection with documentary evidence . ... ”

The Constitutional Court has also had the opportunity to rule whether, in these sorts of cases, the viewing by the appellate court of a video-recording of the hearing at first instance satisfies the requirements of Article 24 of the Constitution. In its judgment no. 120/2009 of 18 May 2009 the Constitutional Court stated that:

“6. ... we must now examine the issue which singularises the instant amparo appeal, namely whether the guarantees of immediacy and adversarial procedure have been duly safeguarded or not by the appellate court ’ s viewing of the video-recording of the hearing held before the first-instance judge.

...

In this connection, an examination of the aforementioned case law of the European Court of Human Rights makes it clear that in cases where the requirements to which this case-law refers are fulfilled, it is necessary for the appellate court to conduct a ‘ direct and personal ’ examination of the accused and of the statements given by him or her in person, at a new hearing in the presence of other interested persons or complainants.

...

7. ... The Audiencia Provincial considered [in the instant case] that after having watched the video-recording of the criminal trial, it was entitled to conduct a new assessment of the oral evidence produced at that hearing. The appellate court found that the judge of the lower court had made a mistake in the assessment of that evidence and accordingly it proceeded to establish a new account of the facts which led to the conviction of those who had been initially acquitted.

However, the truth is that that court was not entitled to assess that oral evidence – which concerned the credibility of the witnesses – in a different way from the first-instance judge in so far as it had not held a public hearing at which the witnesses at the hearing at first instance had been heard in person and directly by the court and there were no legal grounds precluding the appearance of those witnesses before the court. Accordingly, as the appellate court did not comply with that requirement, it violated the appellant ’ s right to a fair hearing under Article 24 § 2 of the Spanish Constitution.”

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he was convicted on appeal without having been heard in person by the appellate court for an offence of which he had been acquitted at first instance, which in his view constitutes a violation of his right to a fair hearing.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him in accordance with Article 6 § 1 of the Convention (see, amongst other authorities, Igual Coll v. Spain (no. 37496/04, 10 March 2009) ? In particular, did the viewing by the appellate court of the video ‑ recording of the trial at first-instance satisfy the applicant ’ s rights under that provision?