CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 mars 2000

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THE FACTS The applicant [Mr José Antonio Garrido Guerrero] is a Spanish national who was born in 1941 and lives in San Fernando. He is a regular member of the armed forces (a ship's captain). He was represented before the Court by Mr G. Muñiz Vega, of the Madrid Bar. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. In an order ( auto de procesamiento ) of 17 November 1993 investigating judge no. 1 of the Madrid Central Military Court ( juez togado militar central ) charged the applicant and another member of the armed forces with an offence against the Treasury (misappropriation for private use of fuel belonging to the navy, in breach of Article 195 § 1 of the Military Criminal Code). The investigating judge found, in particular, that there was evidence to warrant prosecution for an offence against the Treasury. The applicant appealed against the order to the Central Military Court which, in a decision ( auto ) of 21 March 1994, dismissed the appeal and upheld the impugned order. One of the judges on the bench that heard the appeal was D.R.G., a member of the armed forces' legal corps ( vocal togado ). In its decision the court pointed out the following: “According to the case-law established by the Constitutional Court ..., an order by means of which a person is charged is a provisional judicial decision of a purely procedural nature by which an accusation is made, and which must subsequently be the subject of adversarial proceedings and a judgment. Such a decision does not mean that the person charged is guilty, nor is it binding on the courts, which may decide not to proceed with the charges if the evidence on which they were based has ceased to exist.” Examining the facts of the case in which the applicant was involved, the court added: “... and, finally, the loss to the armed forces' budget, rationally amount to evidence of wilful conduct on the part of the accused, who was involved in acts of that nature. That conduct may at this initial stage be regarded as constituting the offence set out in Article 195 of the Military Criminal Code, without prejudice to such legal classification and reasoning as may subsequently be adopted when the merits are examined and a final judgment is delivered on the issue of guilt or innocence, regard being had to the fact that an order by which a person is charged is merely a provisional judicial decision of a procedural nature.” After the proceedings ( juicio oral ) began in the Central Military Court, P.G.B. was appointed as reporting judge and took various investigative measures. On 26 and 27 November 1996 the trial was held in public at the Central Military Court. The bench consisted of five judges: the presiding judge, D.R.G. and P.G.B. as judges from the armed forces' legal corps ( vocales togados generales auditores ), and two other members ( vocales militares ). In a judgment delivered on 13 December 1996 the Central Military Court found the applicant guilty as charged, sentenced him to one year's imprisonment and ordered him to pay damages to the State authorities in respect of his civil liability for an offence against the Treasury. The court held, inter alia , that the guilty verdict against the applicant had been based on a whole body of evidence that had been examined during the investigation and corroborated or adduced at the hearing – in particular, direct evidence such as expert reports, witness statements and documentary evidence. The applicant appealed on points of law to the Supreme Court. He submitted that the bench that had tried him could not be regarded as an impartial tribunal, firstly because D.R.G. had previously been a member of the bench that had ruled on his appeal against the order of 17 November 1993 in which he had been charged, and secondly because P.G.B. had, as the reporting judge, taken various investigative measures once the case had been sent for trial. The applicant also complained that the evidence had been assessed arbitrarily and that some of the prosecution evidence gathered during the investigation had not been produced at the trial but had been taken into consideration by the court, in breach of the adversarial principle and the presumption of innocence. In a judgment of 18 October 1997 the Supreme Court (Military Division) dismissed the appeal. With regard to the allegation that the trial court had been biased because D.R.G. had been one of the judges, the Supreme Court noted in its judgment that, according to the provisions of domestic law concerning the grounds on which judges might withdraw or be challenged and the relevant case-law, the fact that a judge had taken part in the adoption of a decision dismissing an appeal against a decision to bring charges could not in any way be regarded as an investigative measure capable of impairing ( contaminar ) the objective impartiality of the court which had to determine whether the person charged was guilty. As to the allegation that the court had been biased because P.G.B., as the reporting judge for the trial court, had taken certain investigative measures at the request of the prosecution, the Supreme Court observed that the judge had discharged the duties entrusted to him by law as the court's representative with a view to ensuring that direct evidence was obtained and that the court had direct knowledge of the investigative measures that needed to be carried out before the hearing. In respect of the complaint that there had been a breach of the adversarial principle and the presumption of innocence, the Supreme Court noted that at the hearing the applicant, who was assisted by his counsel, had examined the co-defendants, the witnesses and the experts and had put such questions as he had considered necessary for his defence. The Supreme Court found that his guilt had been established by the trial court on the basis of a whole body of evidence examined during the trial, in accordance with the principle that proceedings should be adversarial and public. The applicant then lodged an amparo appeal with the Constitutional Court, relying on his right to a fair hearing by an independent and impartial tribunal and on the principle of presumption of innocence (Article 24 of the Constitution). In a decision ( auto ) of 30 March 1998, served on the applicant on 6 April 1998, the Constitutional Court dismissed the appeal. As regards the complaint that the two judges in question had not been impartial, the court said that the applicant had been told the names of the judges on the trial bench (and thus those of the two judges in issue) and could have challenged them; having failed to do so, he had not exhausted domestic remedies. As to his other complaints, the Constitutional Court held that at the public hearing in the Central Military Court the defendants had appeared and given evidence, witnesses had been heard and various experts had given their opinions; the principle of presumption of innocence had been observed throughout. B.     Relevant domestic law and practice 1.     The Constitution Article 24 of the Constitution provides: “1.     Everyone shall have the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights. 2.     Similarly, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent. ...” 2.     Military Court Proceedings Act (Institutional Law no. 2/1989) The relevant provisions of Institutional Law no. 2/1989 of 13 April 1989 concerning grounds for challenge read as follows: Section 51 “Judges, presiding judges and other members of military courts ... shall not take part in judicial proceedings if any of the grounds set out in section 53 applies; if they do take part, [they] may be challenged.” Section 53 “[A judge] shall withdraw or, if he does not do so, may be challenged on any of the following grounds: ... 5.     if he has acted as counsel for or has represented one of the parties, has as a lawyer drawn up a report in the proceedings or similar proceedings, or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness; 6.     if he is or has been a complainant against or accuser of one of the parties; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection; ... 11.     if he has taken part in the same proceedings in another capacity.” Section 54 “... If the court or the judge considers that there is no justification for withdrawal, it or he shall order the person who has offered to withdraw to continue in the case, without prejudice to the parties' right of challenge. No appeal shall lie against such an order.” Section 56 provides that challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event at least forty-eight hours before the hearing unless the ground comes to light subsequently. With respect to orders by means of which an accused is charged ( auto de procesamiento ) and to appeals against such orders, the Act provides: Section 164 “Where there is reasonable evidence of guilt on the part of one or more identified persons, the investigating judge shall charge them ... The charges shall be brought by an order [ auto ], in which shall be mentioned the punishable acts the accused is alleged to have committed, the presumed offence constituted by those acts and the [relevant] statutory provisions ... followed by the charges and the measures relating to the accused's release or detention pending trial ...” Section 165 “... The accused and the other parties may lodge an appeal, which shall have no suspensive effect, against the order by means of which the accused is charged within five days of [its] being served ...” Section 263 “... if the appeal against the order by means of which the accused is charged is allowed ..., an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include in the case file or which were referred to in the initial pleading on appeal.” 3.     The Supreme Court's case-law In a judgment delivered on 14 November 1994 the Supreme Court gave a ruling on the circumstances in which a judge could be considered to have taken part in the same proceedings at an earlier stage for the purposes of a challenge under section 53(11) of the Military Court Proceedings Act. It held, inter alia : “A challenge to a judge [ vocal ] of a military court on the eleventh ground enumerated in section 53 of the Military Court Proceedings Act is only valid if the judge has taken investigative measures in connection with the case ... The mere fact of having dismissed an appeal against an order by means of which an accused is charged – a decision from which the only inference to be drawn is that the court does not disagree with the investigating judge's assessment of whether there is reasonable evidence of the accused's guilt – may not in any circumstances be regarded as an investigative measure capable of impairing the court's objective impartiality ...” COMPLAINTS Relying on Article 6 § 1 of the Convention, the applicant complained that he had not been given a fair hearing by an impartial tribunal. 1.     He submitted that D.R.G., a member of the bench of the Central Military Court that had examined the merits of the case and convicted him, had also sat in that court when it had dismissed his appeal against the order in which he had been charged. He further complained that P.G.B. had taken part in certain investigations as the reporting judge after the case had been sent for trial. He alleged that since he had not been given notice of the composition of the court, except with regard to the military judges, he had not been in a position to challenge the two judges from the armed forces' legal corps ( vocales togados ). 2.     Lastly, he complained that some of the prosecution evidence – in particular, documents – had not been produced at the hearing but had nonetheless been taken into consideration by the court, in breach of the adversarial principle and of the presumption of innocence enshrined in Article 6 § 2 of the Convention. PROCEDURE The application was lodged with the European Commission of Human Rights on 25 September 1998 and registered on 2 October 1998. In accordance with Article 5 § 2 of Protocol No. 11, which came into force on 1 November 1998, the case was examined by the Court from that date.   On 29 June 1999 the Court decided to communicate the applicant's complaint alleging a violation of his right to an impartial tribunal (Article 6 § 1) to the Government, requesting them to submit in writing their observations on its admissibility and merits. The Government submitted their observations on 15 October 1999 and the applicant replied on 14 December 1999. THE LAW 1.     Relying on Article 6 § 1 of the Convention, the applicant complained that he had not been given a fair hearing by an impartial tribunal. He submitted, firstly, that D.R.G., a member of the bench of the Central Military Court that had examined the merits of the case and convicted him, had also sat in that court when it had dismissed his appeal against the order in which he had been charged. He also complained that P.G.B. had taken part in certain investigations as the reporting judge after the case had been sent for trial. He alleged that since he had not been given notice of the composition of the court, except with regard to the military judges, he had not been in a position to challenge the two judges from the armed forces' legal corps ( vocales togados ). The relevant part of Article 6 § 1 of the Convention provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” The Court will examine the two limbs of the complaint separately. (a)     The applicant complained, firstly, that he had not been given a fair hearing by an impartial tribunal in that D.R.G., a member of the bench of the Central Military Court that had examined the merits of the case and convicted him, had also sat in that court when it had dismissed his appeal against the order in which he had been charged. The Government submitted, firstly, that an order embodying a decision to bring charges was based solely on the existence of reasonable evidence of an offence. It did not set out established facts. It amounted neither to an accusation nor to a conviction. Furthermore, it was provisional and could accordingly be varied or even set aside by the investigating judge during the investigation. In addition, appeals against such orders were heard by benches of three judges of the Central Military Court. In the event of an appeal the investigating judge sent the court a copy of the order, the notice of appeal and any submissions which the parties or the judge considered necessary. The court's knowledge of a case on appeal was limited to the order charging the suspect and the notice of appeal. Proceedings were conducted in writing and no hearings were held. In examining an appeal, the court did not review the case in its entirety and had no direct contact with the parties; its knowledge of the case was confined to the (provisional) content of the interlocutory order charging the suspect. It followed that, owing to the court's limited knowledge of the case, it was not objectively possible for it to form a preliminary view as to whether the person charged had taken part in the offence or not. The Government pointed out that the investigating judge had not ordered the applicant to be detained pending trial. They considered that, regard being had to its content, the Central Military Court's decision on the appeal had not prejudged the issue of the applicant's guilt or innocence but had merely not set aside the investigating judge's order provisionally charging him. The Government further observed that at the public hearing on 26 and 27   November 1996 the applicant had not complained that D.R.G. had been a member of the trial bench. With regard to the applicant's complaint concerning D.R.G.'s lack of impartiality, the Government noted that the applicant had not alleged that there had been any lack of subjective impartiality on the judge's part. As to whether there had been any lack of objective impartiality, the Government drew the Court's attention to the fact that the applicant had not adduced any evidence in support of his allegation of bias. The only complaint he had raised had been based on a purely procedural irregularity: the fact that D.R.G. had taken part in the deliberations of the trial court as one of its five judges, having already been a member of the bench which had upheld the order in which the applicant had been charged. In that connection, the Government, relying on the Court's case-law, considered that the mere fact of having been a member of the latter bench could not in any way amount to bias. In conclusion, they submitted that the complaint was inadmissible as being manifestly ill-founded. The applicant contested the Government's submissions. He maintained, firstly, that the reason why neither he nor his counsel had complained at the hearing that the trial court was not impartial was that they had not known which judges had been designated to sit; they had only been told the names of the two judges who were not members of the armed forces' legal corps, and had had absolutely no knowledge of which general officers from the corps were to sit as members of the court. The applicant further submitted that, according to the most recent legal opinion, accusing someone of a particular offence made it appear likely that the person had in fact committed the offence. Accordingly, bringing a prosecution amounted to a genuine “judicial indictment” – that is to say a formal (albeit provisional) accusation that a person had committed an offence, and hence an indictment for a specific offence. Instituting criminal proceedings had a strong tendency to make judges believe that the accused was responsible. With regard to the nature of an appeal against an order charging a suspect, the applicant submitted that the appellate court had to review not only the formal propriety of the decision appealed against but also its lawfulness and merits. Accordingly, where the court decided on appeal to uphold the original decision, it endorsed that decision. The appellate court accepted the content of the impugned decision and adopted the decision's inherent declaration of the accused's guilt. The applicant submitted that, as in the Castillo Algar v. Spain case (judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII), the judges' decision to dismiss his appeal against the order in which he had been charged suggested that the Central Military Court shared the investigating judge's opinion that there was reasonable evidence to warrant charging the applicant with an offence against the Treasury. He concluded that D.R.G.'s participation in the trial at the Central Military Court that had led to his conviction had constituted a breach of Article 6 § 1 of the Convention. The issue in the instant case is whether the fact that D.R.G. took part in the trial when he had previously been a member of the bench of the Central Military Court that had upheld the investigating judge's order charging the applicant with an offence against the Treasury is capable of casting doubt on the trial court's impartiality. The Court does not consider it necessary to determine whether the applicant has exhausted domestic remedies, seeing that the complaint is inadmissible for the following reasons. The Court reiterates that, for the purposes of Article 6 § 1, impartiality must be assessed by means of a subjective test, which consists in seeking to determine the personal conviction of a particular judge in a given case, and by means of an objective test, which consists in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, the Incal v. Turkey judgment of 9   June 1998, Reports 1998-IV, p. 1571, § 65). As regards the subjective test, the Court notes that the applicant did not dispute D.R.G.'s personal impartiality. Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may prompt the suspicion that he is biased. In this respect even appearances may be of some importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and, in particular, the accused. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. When it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis , the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 48). In the instant case the fear that the trial court was not impartial stemmed from the fact that one of the judges had previously been a member of the bench that had upheld on appeal the order in which the applicant had been charged ( auto de procesamiento ). That kind of situation may occasion misgivings on the part of the accused as to the impartiality of the judges. However, whether such misgivings may be regarded as objectively justified depends on the circumstances of each particular case; accordingly, the mere fact that a judge has also made pre-trial decisions in the case cannot in itself justify fears as to his impartiality (see the Hauschildt judgment cited above, p. 22, § 50). In this connection, the Court observes that, according to the order in which the applicant was charged, made by investigating judge no. 1 of the Madrid Central Military Court on 17 November 1993, there was evidence to warrant prosecution for an offence against the Treasury within the meaning of Article 195 § 1 of the Military Criminal Code. The applicant appealed against the order to the Central Military Court, which dismissed the appeal on 21 March 1994. Admittedly, in its decision of 21 March 1994 the Central Military Court, with D.R.G. as one of the members of the bench, adopted the terms of the impugned order of 17 November 1993. However, contrary to the position in the Castillo Algar case cited above, in which “the wording used by the chamber of the Central Military Court that heard the appeal against the auto de procesamiento ... could easily be taken to mean that it finally adopted the view taken by the Supreme Court ... that 'there was sufficient evidence to allow of the conclusion that a military offence ha[d] been committed'   ” (p.   3117, § 48), the appellate court in the instant case took care to state the limits of the order in which the applicant was charged, indicating that the procedural, provisional character of the decision meant that it did not in any way prejudge the outcome of the proceedings with regard to either the legal classification of the offence or the accused's guilt. In addition, the Court notes a further difference – and one that is no less significant – between the instant case and the Castillo Algar case cited above. In the latter case two judges who had taken part in the review of the order charging Mr Castillo Algar were subsequently presiding judge and reporting judge respectively of the bench of the Central Military Court which tried and convicted him. The situation was different in the instant case: D.R.G. merely sat as a non-presiding member of the five-judge bench of the Central Military Court which on 13 December 1996 found the applicant guilty and sentenced him to imprisonment. In view of the foregoing, the Court considers that in the circumstances of the case the applicant's fears of bias are not objectively justified. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention. (b)     The applicant also complained that P.G.B. had taken part in certain investigations as the reporting judge after the case had been sent for trial. The Court considers, however, that the mere fact that a judge has taken certain investigative measures as the reporting judge at the trial stage   cannot in itself justify fears as to his impartiality (see the Hauschildt judgment cited above, p. 22, § 50, and the Castillo Algar judgment cited above, p. 3116, § 46). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention. 2.     The applicant complained that some of the prosecution evidence – in particular, documents – had not been produced at the hearing but had nonetheless been taken into consideration by the court, in breach of the adversarial principle and of the presumption of innocence enshrined in Article 6 § 2 of the Convention, which provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” The Court notes, however, that the rights of the defence were respected by the domestic courts to which the applicant was able to submit the evidence he considered necessary for his defence. It is also clear from the case file that the courts concerned based their decisions solely on evidence adduced and discussed by both parties at the hearing. The Court also notes that the applicant's guilt was established by the trial court on the basis of a whole body of evidence examined at the trial in accordance with the principle that proceedings should be adversarial and public. That being so, the Court holds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.