CEDH · CASELAW;CLIN;ENG — 10 mars 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 117 March 2009   Igual Coll v. Spain - 37496/04 Judgment 10.3.2009 [Section III] Article 6 Criminal proceedings Article 6-1 Fair hearing Lack of public hearing before court of appeal hearing an appeal on both factual and legal aspects of case: violation   Facts : In a judgment delivered after a public hearing which the applicant attended, the criminal court acquitted him of wilfully deserting his family by failing to pay maintenance. Although the maintenance had not been paid, the court considered that as the applicant was unemployed he had not defaulted on the payments intentionally but because he could not afford to pay. As the mens rea for the offence was lacking, there was no offence. The applicant’s former wife appealed and requested a public hearing. Without holding a public hearing, the appellate court ( Audiencia Provincial ) found the applicant guilty of wilfully deserting his family, and ordered him to serve eight weekends in prison and to pay the outstanding amounts plus legal costs. In particular, it accepted the facts considered to have been established at first instance and pointed out that the offence was that of failure to pay the maintenance fixed by the judge and, concerning the applicant’s personal circumstances, that the sum to be paid had been fixed after objective verification of the applicant’s means by the civil court which had settled the terms of the separation. It pointed out that the court had rejected the applicant’s request for the payments to be reduced as the applicant, an engineer, had not shown that it was impossible for him to find a job that would enable him to pay the maintenance. The AudienciaProvincial further noted that not only had the applicant failed to pay, but he had not taken any steps to pay his debt. In view of the documentary evidence in its possession, the AudienciaProvincial found that the mens rea for the offence was established and the applicant should accordingly be found guilty. The applicant appealed to the Constitutional Court, complaining that there had been no public hearing in the appeal proceedings. His appeal was dismissed. The Constitutional Court referred to its own case-law according to which the lack of a public hearing before a court of appeal having full jurisdiction could be justified in certain circumstances provided that a hearing had been held at first instance. The evidence that had been examined was not such that there had been any need for the applicant to express himself personally before the Audiencia Provincial . It had already been examined at first instance and the AudienciaProvincial had not made a new interpretation of it. The lack of a hearing had therefore not violated the applicant’s right to a fair trial. Law : The applicant had been sentenced by the Audiencia Provincial without being heard in person. It was therefore necessary to examine the role of that court and the nature of the issues it was to determine. The Code of Criminal Procedure stated that the Audiencia Provincial took evidence only in exceptional cases and that this was restricted to evidence the accused had been unable to submit at first instance, evidence he had submitted but which had been rejected without good reason and evidence declared admissible but which it had not been possible to examine at first instance for reasons beyond the control of the accused. The decision whether or not to hold a public hearing before the appellate court when there was no new evidence was left to the discretion of the Audiencia Provincial , which could order a hearing if it felt it would shed light on the case. In the instant case it had been open to the Audiencia Provincial , as an appellate court, to deliver a new judgment on the merits, which it had done. It could therefore have decided either to uphold the applicant’s acquittal or to find him guilty, after assessing the issue of his guilt or innocence. The Court considered that there had been no particular reason for the applicant to request a public hearing. He had been acquitted at first instance after a public hearing during which different evidence had been taken and the applicant had been heard. The court had found that in spite of the fact that the applicant had failed to make the payments, it had not been established that he had done so on purpose. The court had based its conclusion on the applicant’s financial situation, which made it impossible for him to meet the payments, referring as its principal source of information to the applicant’s income declaration. The Audiencia Provincial , on the other hand, had reached the opposite conclusion and found that the applicant had not only knowingly failed to fulfil his obligations when he could have paid, but had not taken any positive steps to secure the necessary income or funds, in spite of his good professional qualifications. Thus the Audiencia Provincial had not only taken into account the objective element of the offence – that is to say the non-payment of the maintenance – but had also examined the applicant’s intentions and conduct, and the possibility he had of earning more money with his professional qualifications. The factors the AudienciaProvincial had taken into consideration led the Court to find that a public hearing should have been held. The AudienciaProvincial had not confined itself to interpreting a set of objective facts differently from the court of first instance, but had examined anew facts taken to have been established at first instance and reassessed them, which went beyond strictly legal considerations. The appellate court had thus examined the case as to the facts and the law. In the particular circumstances of the case, namely the applicant’s acquittal at first instance after a public hearing at which different evidence had been examined, including documentary evidence, such as bank statements, and personal evidence, such as the applicant’s income declaration, the Court considered that the applicant’s conviction on appeal by the Audiencia Provincial, without him having been heard in person, did not meet the requirements of a fair trial. The above information was sufficient for it to find that a public hearing before the appellate court had been necessary in the instant case. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes