CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 janvier 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sB5688C0F { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 9 January 2017   THIRD SECTION Application no. 32914/16 Antonio CAMACHO CAMACHO against Spain lodged on 25 May 2016 STATEMENT OF FACTS The applicant, Mr Antonio Camacho Camacho, is a Spanish national who was born in 1980 and lives in Bonavista (Castellon). He is represented before the Court by Mr D. Fernández Fernández, a lawyer practising in Madrid. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. After a judgment whereby the applicant’s former partner was awarded the custody of their minor children, the applicant was charged with robbery with violence and causing bodily harm to her former partner’s lawyer. On 15   March 2013, the Castellon criminal judge acquitted the applicant and the co-accused for lack of sufficient evidence proving their participation in the alleged events. The judge examined whether the applicant was the counterparty in the custody decision but in the absence of documentary evidence he was unable to establish this fact. The judge established that the applicant’s former partner’s lawyer had been robbed of legal professional documents. With judicial authorisation, her mobile phone had been intercepted and in the course of that intervention two conversations had been recorded. The first conversation was between an unknown person and one of the co-accused with no incriminating content. The victim identified the applicant’s voice after listening to the recording at the hearing. The second conversation was between the other two defendants. They both showed that they knew about the applicant’s arrest and decided to get rid of the mobile phone. It was found in a flowerpot in a house belonging to one of the defendants during his arrest. By way of exculpatory evidence, it was stated by a trial witness that the applicant and one of the co-accused had been working at her house at the same time on the day of the events. The prosecutor appealed against the acquittal decision before the Castellon Audiencia Provincial citing incorrect assessment of the evidence, asked for a hearing to be held, and requested the taking of some personal evidence. On 31 July 2013, the Audiencia Provincial declared the prosecutor’s evidence request inadmissible. On 7 October 2013 the Audiencia Provincial partially quashed the first ‑ instance judgment, stating that, as it could not quash the judgment without a hearing, it had to declare it void. The Audiencia Provincial remitted the case to the first-instance court “in view of the existing arguments in this decision, to re-examine the applicant’s [potential] participation in the investigated crime”. The Audiencia Provincial added two new elements to the interpretation of evidence: it stated that it was not necessary to have documentary evidence of the participation of the applicant in the previous civil trial and considered that the attack on the victim had been planned in advance by the applicant, who had constructed an alibi but had not committed the crime directly. The same Castellon criminal judge analysed the question from two perspectives. Firstly, from the perspective of the accusatory principle, he stated that neither the prosecutor nor the victim had amended their provisional indictment to include the possibility of incitement, as suggested by the Audiencia Provincial , but had rather made accusations on the basis of “co-perpetration” only. Secondly, he analysed the existing evidence once again, adding several new arguments, and concluded that there was not sufficient evidence to convict the applicant. The prosecutor and the victim lodged an appeal. The prosecutor again requested a hearing to “quash the first-instance judgment so that the applicant might be convicted by the Audiencia Provincial itself”. Furthermore, he requested the taking of some personal evidence. A new Audiencia Provincial section comprising three new judges once again declared the prosecutor’s evidence request inadmissible and held a hearing. The Audiencia Provincial asked the parties whether the applicant should be questioned or whether he should only take the floor at the end of the hearing. None of the parties, including the applicant’s lawyer, objected to the latter option. Consequently, after the prosecutor and victim’s oral contributions and the applicant’s lawyer’s defence, the applicant, who was present at the hearing, took the floor at the end of it and personally expressed what he wished to say. On 29 July 2015, the Audiencia Provincial issued a ruling upholding the prosecutor’s appeal and convicting the applicant of robbery with violence and by causing bodily harm. The appellate court expressly acknowledged that it had relied on the facts as established by the first-instance court and on the evidence as presented by the parties before the judge. Nevertheless, it stated: “... the applicant had been aware of the decision in which his former partner was granted the custody of their minor children and that he had conceived a way in which to retaliate against his former partner’s lawyer. His orders were executed by several people close to him, or trusted employees, who were requested by the applicant to execute the ... actions (...) these proven actions were executed by unknown persons who at all times acted under the direction and instructions of the applicant.” The applicant submitted an extraordinary motion for dismissal of proceedings and an amparo appeal. Both were declared inadmissible, on 23   September 2015 and on 26 January 2016 respectively, the latter as being devoid of any special constitutional significance. B.     Relevant domestic law Art. 790 Code of Criminal Procedure (in force at the time of the events) “1.     A judgment handed down by a criminal judge may be appealed against before the corresponding Audiencia Provincial (...) 2.     The appeal must contain, in an ordered manner, an allegation of a breach of the rules and procedural safeguards, an error in the assessment of the evidence, or an infringement of the rules of law the decision is based on (...) 3.     In the same statement, the appellant may request the taking of evidence that could not be presented in the first instance. The applicant may also request means of proof that were rejected improperly (...) and ones that were admitted but subsequently not practiced for reasons not attributable to him or her.” COMPLAINT The applicant complains that he was convicted on appeal on the basis of new facts and evidence not examined at the first-instance trial or not taken into account by the first-instance court. He states that the Audiencia Provincial examined on appeal evidence of a personal nature and that he was only heard in person at the end of the trial and was consequently not interrogated by the other parties. The principles of immediacy and adversarial procedure were therefore not respected, which in his view constitutes a violation of his right to a fair hearing as provided in article 6 §   1 of the Convention.   QUESTION TO THE PARTIES Can it be considered that the nature of the hearing before the Audiencia Provincial de Castellón meets the requirements of the case-law of the Court with respect to Article 6 § 1 of the Convention (see, among others, Hernandez Royo v. Spain No. 16033/12, 20 September 2016, Gomez   Olmeda v. Spain No. 61112/12, 29 March 2016, Perez Martinez v.   Spain , no.   26023/10, 23 February 2016)? In particular, does the fact that the applicant was present at the hearing before the appellate court but he was not interrogated by the other parties, satisfy the applicant’s rights under this provision?