Information Note on the Court’s case-law 44

July 2002

Perote Pellon v. Spain - 45238/99

Judgment 25.7.2002 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Impartiality of judges deciding on merits of case after having previously rejected appeals made by the accused at the investigation stage: violation

Facts : Between 1983 and 1991, the applicant, at the time a colonel in the reserve ar my, held the post of head of operational unit at the National Defence Research Centre, a post which gave him responsibility over a number of classified documents. In 1995, the director of the centre lodged a complaint against him with the military courts f or having disclosed official secrets or information relating to security and national defence. A judicial investigation was started against him, in the course of which he was charged and detained on remand.  He was found guilty by the central military cour t, sentenced to seven years’ imprisonment and discharged from the armed forces. However, two of the judges of the chamber of the central military court which had found him guilty, namely the presiding judge, R.V., and a reporting judge, R.G., had previousl y sat on other benches of the same court which had confirmed the order charging the applicant and taken other procedural steps, concerning in particular the extension of the applicant’s detention on remand.

Law : Article 6 § 1 – From a subjective point of v iew, there was no reason to doubt the personal impartiality of the judges concerned. It remained to be established whether, independently of the conduct of those judges, there were certain verifiable facts which made the applicant’s fears as to their impar tiality objectively justified. The applicant’s fears were due to the fact that they had sat both on the trial bench and on other benches of the central military court which, in particular, had upheld on appeal the order charging him and had decided to exte nd his detention on remand. However, the mere fact that a judge had already given decisions prior to a trial could not in itself justify fears as to his or her impartiality.  In the instant case, the bench of judges of the central military court which had given a decision on the order charging the applicant had emphasised the provisional nature of that order and pointed out that it was for the trial bench to assess the evidence and decide on the applicant’s guilt. However, the terms used by the bench of jud ges which had heard the appeal against the order, on which R.G. had sat, and those used by the bench which had heard the appeal against the decision ordering his detention on remand, on which R.G. and R.V. had sat, might have given the impression that the benches felt they had sufficient evidence to find the applicant guilty. R.G. and R.V. had subsequently been members of the chamber of the military court which had extended the applicant’s detention on remand, in view of the existence of strong reasonable e vidence as to his guilt. Lastly, the trial bench of the central military court, including the two judges in question, had found the applicant guilty and sentenced him to a term of imprisonment. Consequently, in the instant case, there could be serious doub ts as to the impartiality of the trial bench, bearing in mind that the presiding and judge and one of the reporting judges had been involved in a number of procedural steps, including, in particular, the dismissal of the appeal against the order charging t he applicant and the decisions extending his detention on remand. The applicant’s fears could therefore be considered objectively justified.

Conclusion : violation (unanimously).

Article 41 – The Court held that the finding of a violation was in itself just satisfaction for the non-pecuniary damage suffered by the applicant. It awarded 10,500 euros in respect of costs and expenses.

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

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