Information Note on the Court’s case-law 255

October 2021

Serrano Contreras v. Spain (no. 2) - 2236/19

Judgment 26.10.2021 [Section III]

Article 6

Civil proceedings

Criminal proceedings

Article 6-1

Fair hearing

Unfairness of revision proceedings before Supreme Court due to distortion of European Court judgment which had found a violation of the applicant’s right to a fair trial: violation

Facts – The applicant was charged with fraud, forgery of official documents and forgery of commercial documents. He was acquitted at first instance, but found guilty on appeal on points of law to the Supreme Court, which did not first hold a hearing. In a judgment of 20 March 2012, the European Court of Human Rights found a violation of Article 6 § 1 in respect of the fairness and the length of the proceedings.

On the basis of the Court’s judgment, the applicant lodged an application for a revision of the judgment with the Supreme Court. In May 2015, the Supreme Court allowed in part the application for revision and quashed the applicant’s conviction in respect of the offence of forgery of official documents, but dismissed the application in respect of the other offences. The applicant unsuccessfully requested an annulment of the proceedings, appealing up to the Constitutional Court.

Law – Article 6 § 1 : (a) Admissibility

The Government had argued that a new judgment finding Spain to be in breach of the Convention on the same grounds as in the judgment of March 2012 would interfere with the non bis in idem principle. Although the application was undoubtedly connected with the execution of the Court’s judgment of March 2012, the complaint regarding the unfairness of the subsequent judicial proceedings before the Supreme Court both concerned a situation distinct from that examined in that judgment and contained relevant new information relating to issues undecided by that judgment. The “new issue” that the Court had authority to examine concerned the alleged unfairness of the revision proceedings before the Supreme Court in that, in view of the Court’s judgment of March 2012, it had annulled the applicant’s conviction in respect of the offence of forgery of official documents, while upholding his convictions for fraud and forgery of commercial documents. Accordingly, the Court was not prevented by Article 46 of the Convention from examining the applicant’s new complaint concerning the unfairness of the proceedings leading to the judgment of the Supreme Court of May 2015.

Concerning the applicability ratione materiae of Article 6 § 1, under the Spanish legal system, applicants are provided under section 954 the Criminal Procedure Act with a remedy entailing the possibility of a revision of a final judgment after the finding of a violation by the Court, as long as the effects of that violation could not be remedied in any way other than by such a judicial revision. In the context of that examination under section 954, the Supreme Court’s task is to consider the outcome of the terminated domestic proceedings in relation to the findings of the Court and, where appropriate, order the re-examination of the case with a view to securing a fresh determination of the criminal charge against the injured party. The examination on the basis of section 954 is therefore likely to be decisive for the determination of a criminal charge. Given the scope of the Supreme Court’s scrutiny in the present case, the Court considered that it should be regarded as an extension of the criminal proceedings against the applicant. The Supreme Court had once again focused on the determination, within the meaning of Article 6 § 1, of the criminal charge against the applicant. Consequently, the safeguards of Article 6 § 1 had been applicable to the proceedings before the Supreme Court.

(b) Merits

In the present case, the “new issue” brought before the Court was the interpretation made by the Supreme Court of the Court’s judgment of March 2012, within the framework of the applicant’s request for the reopening of proceedings. The issue of the applicant’s conviction on the basis of evidence not directly examined by the Supreme Court had been the object of the Court’s previous judgment, and the Court was prevented by Article 46 of the Convention from undertaking a fresh examination of the same issue. The Supreme Court’s judgment of May 2015 had not freshly convicted the applicant; rather, it had upheld the previous conviction in respect of two of the offences, on the basis of the Supreme Court’s own interpretation of the Court’s judgment of March 2012.

As regards the Supreme Court’s reasoning, it had correctly stated that the finding of a violation by the Court did not give rise to any automatic right to the reopening of proceedings and that it might even be possible to remedy a violation found by the Court by means of a partial reopening of proceedings, as the Supreme Court envisaged in the present case. Nevertheless, where, in its examination of an extraordinary remedy, a domestic court determines a criminal charge and gives reasons for its decision, those reasons must satisfy the requirements of Article 6 § 1 ( Moreira Ferreira v Portugal (no. 2) [GC]). In cases as the present one, the domestic court’s presentation of the Court’s earlier findings should not be grossly arbitrary or even amount to denial of justice, resulting in an effect of defeating the applicant’s attempt to have the proceedings against him examined in the light of the Court’s judgment in his previous case ( mutatis mutandis , Bochan v. Ukraine (no. 2) [GC]).

In order to decide on the applicant’s application for revision, the Supreme Court had extensively examined the grounds for his conviction contained in its judgment of 2005. On that basis the Supreme Court had considered that the applicant’s convictions for fraud and forgery of commercial documents had not entailed any breach of Article 6 § 1 and that, for that reason, the Court’s findings in the judgment of March 2012 could only apply to his conviction for forgery of official documents. However, the question whether the applicant’s convictions had complied with Article 6 § 1 had actually been the object of the Court’s judgment of 2012. That issue had been settled, in the Court’s view with sufficient clarity. It followed that, despite the margin of appreciation that the national authorities enjoy when deciding on the reopening of proceedings, the Court’s findings in its earlier judgment should have been respected.

In its judgment of March 2012, the Court had found a violation of Article 6 § 1 on account of the applicant’s conviction by the Supreme Court on the basis of deductions arising from the findings of fact, as established by the court at first instance, without the Supreme Court having heard the applicant in person. In the judgment of March 2012, the Court had referred to the proceedings before the Supreme Court as a whole and had made no distinction as to whether the findings concerned only some of the convictions and not the others. Nonetheless, elsewhere in that judgment, the Court had specifically mentioned elements that had clearly addressed either the applicant’s conviction for forgery of official documents, his conviction for fraud or his conviction for forgery of commercial documents. Those statements had left no doubt as to the scope of the Court’s finding of a violation. Therefore, the Supreme Court’s interpretation, namely that the violation of Article 6 § 1 found by the Court had concerned only the offence of forgery of official documents, had contradicted the findings of the Court in its earlier judgment in the applicant’s case.

Thus, the Supreme Court, when making its own interpretation as to the scope and meaning of the Court’s findings in the judgment of March 2012, had gone beyond the national authorities’ margin of appreciation and distorted the conclusions of the Court’s judgment; the impugned proceedings had therefore fallen short of the requirements of a “fair trial” under Article 6 § 1.

Conclusion : violation (unanimously).

Article 41: EUR 9,600 in respect of non-pecuniary damage.

(See also Serrano Contreras v. Spain , 49183/08, 20 March 2012; Bochan v. Ukraine (no. 2) [GC], 22251/08, 5 February 2015, Legal Summary ; Moreira Ferreira v. Portugal (no. 2) [GC], 19867/12, 11 July 2017, Legal Summary )

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

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