JOINT CONCURRING OPINION OF JUDGES LAGERGREN, PETTITI AND MACDONALD

Whilst we agree with the findings of the Court in the present case, we would like to add the following observations regarding the reasoning of the judgment of 15 January 1982 of the Audiencia Nacional.

Having deliberated on the basis of the evidence adduced, the Audiencia Nacional gave its decision three days after the hearing. After briefly setting out the facts, the parties ’ submissions and the relevant law, the judgment imposed heavy sentences on the applicants. It contained no analysis of the evidence that had been taken or of its connection with the facts deemed to have been established (see paragraph 107 of the Commission ’ s report).

The Government submitted that short reasoning was now common practice in systems based on the judge ’ s personal belief, such as Spain ’ s; moreover, in its judgment of 27 December 1982 the Supreme Court listed evidence in the investigation file on which the Audiencia Nacional could have founded its decision.

In the absence of any clarification in the judgment of 15 January 1982 , it may be regarded as having been based on all the evidence and submissions of the parties, whether debated during the trial or merely entered in the investigation file. In a system where the possibility of appealing on a point of law against the establishment of the facts by the trial court is very limited (Articles 849 and 851 para. 1 of the Spanish Code of Criminal Procedure; see paragraphs 42 and 43 of the Court ’ s judgment), it seems reasonable, in order to enable the defence to set forth its arguments effectively in such an appeal, that the trial court should have given an adequate indication of the evidence on which it had relied to convict the applicants (see paragraph 53 in fine of, and our joint concurring opinion annexed to, the Court ’ s H v. Belgium judgment of 30 November 1987, Series A no. 127, pp. 35-36 and 43).

[*]  Note by the Registrar: The case is numbered 24/1986/122/171-173. The second figure indicates the year in which the case was referred to the Court and the first figure indicates its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.