Published on 27 June 2022

THIRD SECTION

Application no. 56712/21 F.S.M. against Spain lodged on 17 November 2021 communicated on 7 June 2022

SUBJECT MATTER OF THE CASE

The applicant was declared partially incapacitated (he was progressively losing his memory) and placed under guardianship by a civil judgment of 14 March 2013. Accordingly, he was to be assisted by his guardian when carrying out steps and signing contracts that might result in civil obligations for him and in dealings with the administrative authorities.

Between 2014 and 2019 he was investigated for several offences against the Treasury ( Hacienda Pública ). He was represented by a defence counsel. During the investigation, two forensic reports about the applicant’s intellectual capacities were delivered on 11 December 2017 and 22 May 2018. They stated that the applicant could understand the charges brought against him and the course of the proceedings, but he should be assisted by another person on account of his diminished mental capacity.

On 18 July 2018, relying on the medical reports he had obtained privately, the applicant requested to terminate the criminal proceedings. He pointed out that he was 70 years old, had been placed under partial guardianship, and that he suffered from mental problems which had reduced his intellectual capacity, preventing him from adequately defending himself and answering questions when giving evidence. In the alternative, he requested that a fresh forensic report about his intellectual capacities be commissioned. On 26 July 2018 the Audiencia Provincial denied the applicant’s request, finding that the medical reports submitted by the applicant could not alter the findings of the forensic report of 22 May 2018 and that the applicant could ask for a new forensic report at the beginning of the trial.

On 8 January 2019, after the investigation had been completed, the applicant again asked that the proceedings be discontinued and that a fresh forensic report be commissioned. He enclosed a forensic report of 1 October 2018 commissioned in another criminal proceeding. That report stated that the applicant suffered from “memory disorder”, “essential tremor and the beginnings of Parkinson’s disease”, “major depressive disorder” and “moderate dementia”, and concluded that it could have an impact on his ability to answer questions when giving evidence at the trial and on his defence, and could therefore compromise both.”

The trial took place on 16 and 17 January 2019. The Audiencia Provincial stated at the outset that no report has established the applicant’s inability to understand the trial and to answer questions. During the trial, the applicant, while represented by a defence counsel, was not assisted by his guardian who had declined to continue to act as the guardian because of his own advanced age, and proceedings were pending before a civil court with a view to replacing him. The trial court in the criminal proceedings did not appoint a representative ( defensor judicial ) to assist the applicant in the guardian’s absence.

The applicant was found guilty and sentenced to two years and six months’ imprisonment. The judgment stated that no medical or forensic reports had proved that the applicant’s intellectual capacities were diminished to such an extent as to prevent him from understanding the trial. The Audiencia Provincial considered that the applicant had understood the trial because, when making his closing arguments, he had said: “I didn’t know anything [about the facts], I only went to the construction site and signed what I was asked to sign; I suffered from cancer at that time.”

The applicant’s cassation appeal to the Supreme Court was dismissed.

Lastly, the applicant lodged an amparo appeal with the Constitutional Court, which was declared inadmissible for lack of constitutional relevance. The applicant complains under Article 6 § 3 (b) that he could not duly prepare his defence and give evidence during the trial because of his diminished intellectual capacity.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant’s right to a fair trial under Article 6 § 1 of the Convention in the criminal trial against him (see O’Donnell v. the United Kingdom , no. 16667/10, §§ 55-58, 7 April 2015)?

2. Was the applicant able, in view of his mental capacity, to duly prepare his defence before and during the trial, as required by Article 6 § 3 (b) of the Convention (see Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007)?

Did the lack of a guardian and court-appointed representative during the trial ( defensor judicial ) affect the applicant’s right to prepare his defence, as required by Article 6 § 3 (b) of the Convention (see Vaudelle v. France , no. 35683/97, §§ 52 and 53, ECHR 2001 ‑ I)?

The Government are further asked to provide a transcript and any other recording of the applicant’s trial, the applicant’s criminal records and any other material that could be relevant or complement the documents submitted in the application.