CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 octobre 2001

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THE FACTS The applicant, Antonio Alvarez Sánchez, is a Spanish national, who was born in 1953. He is currently imprisoned in Huelva Prison. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. In a reasoned judgment of 14 March 1996, delivered after a public hearing, the Huelva Audiencia Provincial found the applicant guilty of homicide with the aggravating circumstance that he had committed the same offence before and sentenced him to fifteen years’ imprisonment. It took account of a loud altercation that had taken place between the applicant and his victim, the numerous punches and kicks the applicant had dealt to the victim both when he was standing and after he had fallen to the ground, the victim’s fragile state of health, which was known to the applicant, and the brutal nature of the assault: the victim had bruises on the thorax and abdominal area, several broken ribs, a ten-centimetre long tear in his liver and abdominal haemorrhaging; moreover, when the victim had fallen down stairs, the applicant had thrown his shoes at him and left him sitting against the wall, failing to go to his aid. The applicant, who was represented by an advocate and an attorney appointed under the legal aid scheme, lodged an appeal on points of law with the Supreme Court, arguing, inter alia , that there had been an infringement of the principle of the presumption of innocence and that the homicide had been committed through negligence and not intentionally. He asked for the aggravating circumstances found by the trial court not to be applied. The prosecution recommended that the appeal be declared inadmissible. However, in two judgments delivered on 31 October 1997, the Supreme Court found that there were no aggravating circumstances and set aside the part of the impugned judgment relating to the sentence, which it reduced to twelve years and one day of imprisonment while upholding the trial court’s judgment in all other respects. On 22 December 1997 the judgments were served on the applicant’s legal representative. In a decision of 22 January 1998 the Huelva Audiencia Provincial held that no further appeal lay against the applicant’s conviction. That decision was served on his legal representative in Huelva on 23   January 1998. In April 1998, after his fellow prisoners had told him in January 1998 that the Supreme Court had delivered its judgment on his case, the applicant requested information about his situation in prison. On 16 May 1998 the applicant wrote to the Constitutional Court to point out that the Supreme Court judgments had not been served on him. He stated that he wished to file an amparo appeal and requested that the advocate appointed to represent him under the legal aid scheme be allowed to represent him for that purpose because he himself was insolvent. On 22 May 1998 the applicant sent the Constitutional Court pleadings containing his amparo appeal, which he had written himself. On 3 June 1998 the applicant, who had been in prison since January 1998, submitted a written application to the Huelva Audiencia Provincial , requesting that his sentence be reviewed in the light of the new Criminal Code. On 9 June 1998 the applicant received in prison a copy, sent by the clerk of the court, of the Supreme Court judgments relating to his case. On 15 September 1998 the Constitutional Court requested the Madrid Bar to appoint an advocate and an attorney to represent the applicant under the legal aid scheme so as to enable him to submit his amparo appeal in accordance with the formal requirements. The two legal representatives were appointed on 17 September and 5 October 1998. The amparo appeal was formally lodged by them on 14 April 1999. In a decision of 31 May 1999 the Constitutional Court declared the appeal inadmissible as being out of time. It pointed out that because the Supreme Court’s judgment of 31 October 1997 had been served on the applicant on 22 December 1997, the time of twenty days allowed by law for the lodging of an amparo appeal had been considerably exceeded, as the first written document submitted to the Constitutional Court by the applicant had been dated 22 May 1998 and registered by the Court Registry on 5 June 1998. However, the Constitutional Court pointed out that, should the applicant wish to seek redress for any shortcomings on the part of his legal representative in the performance of his duties, his right to bring the relevant actions under section 442 of the Judicature Act was not affected by that ruling. B.     Relevant domestic law Judicature Act Section 442 “1.     Advocates and attorneys shall be civilly or criminally liable or liable to disciplinary sanctions, as the case may be, in the performance of their duties. 2.     ... It shall be the responsibility of the professional associations concerned to determine whether their members are liable to disciplinary sanctions on account of their professional activities, in accordance with their statutes and, at all events, in observance of the safeguards which must accompany any disciplinary procedure.” COMPLAINTS Relying on Article 6 §§ 1, 2 and 3 (b) and (d) and Article 13 of the Convention, the applicant complained that the proceedings against him had been unfair and that there had been an infringement of the principle of the presumption of innocence and his defence rights. He also complained that he had been denied effective access to an amparo appeal to the Constitutional Court because of the shortcomings of the legal assistance provided to him. THE LAW The applicant complained that the proceedings against him had been unfair and that there had been an infringement of the principle of the presumption of innocence and his defence rights. He also complained that he had been denied effective access to an amparo appeal to the Constitutional Court because of the shortcomings of the legal assistance provided to him. He relied on Article 6 §§ 1, 2 and 3 (b) and (d) and Article 13 of the Convention, the relevant parts of which provide as follows: Article 6 “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal... 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3.     Everyone charged with a criminal offence has the following minimum rights: ... (b)     to have adequate time and facilities for the preparation of his defence; (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority...” 1.     In so far as the applicant complained in substance that he had been denied effective access to an amparo appeal to the Constitutional Court because of the shortcomings of the legal assistance provided to him and because no advocate had been assigned to represent him under the legal aid scheme, the Court considers that this complaint should be examined under Article 6 §§ 1 and 3 (c) of the Convention. The Government asserted in that connection that the Supreme Court’s judgments had been correctly served on the applicant’s legal representative. They referred to the established case-law of the Constitutional Court, according to which the time allowed for filing an amparo appeal began on the date on which the judgment was served on the appellant’s attorney regardless of whether the appellant himself was informed thereof. The applicant could not legitimately argue that he had been unaware of the Supreme Court’s judgments until he had been informed thereof in prison on 9 June 1998 as he had appealed to the Constitutional Court on 3 June 1998 and been imprisoned since January 1998. The Constitutional Court had accepted the handwritten amparo appeal filed by the applicant in person as a sufficient basis on which to launch the legal aid process with a view to the formal lodging of the appeal, and the applicant had been properly assisted by his legal representatives at that stage. The Government pointed out that, at all events – as the Constitutional Court had moreover noted in its decision on the amparo appeal – it was open to the applicant to bring a civil action for damages against his legal representative for professional misconduct. They referred to the Commission’s inadmissibility decision of 21 October 1996 in the case of M.P.M.L. v. Spain (application no. 27266/95), which read as follows: “ ... the Commission points out that under Article 25 of the Convention it may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention. The phrase ‘High Contracting Parties’ must also be taken to mean the organs thereof. An attorney however, even when officially assigned, cannot be regarded as an organ of the State. In principle his acts or omissions are not directly attributable to a State authority and as such may not, except in particular circumstances, engage the latter’s responsibility under the Convention (cf., mutatis mutandis , Eur. Court H.R., Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 18, § 36, and Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, pp. 32-33, § 65, and Comm. Report 5.5.88, p.   55, § 155). The Commission finds that in the instant case, while the allegations that the officially assigned attorney infringed the applicant’s right to effective legal assistance through negligence may possibly provide grounds for the applicant to bring an action for damages against that attorney for professional misconduct, they are not such as to engage directly and immediately the State’s responsibility. Taking all this into consideration, the Commission considers that this part of the application must be rejected as being manifestly ill-founded...” The applicant submitted that he had been informed in January 1998 by some of the other prisoners who had heard the news on Huelva Radio that the Supreme Court had delivered its judgment on his case. However, he emphasised that the judgment had not been served on him until 9 June 1998 and that in the meantime he had naïvely been waiting for a copy to be served; that was why he had not lodged an amparo appeal with the Constitutional Court any earlier. The Court observes that what has to be determined in the instant case, as the Government pointed out with reference to the aforementioned decision of the Commission which they cited in their observations, is whether negligent conduct or an omission by one of the applicant’s legal representatives, namely his officially assigned attorney, can be regarded as that of an organ of the State whose acts or omissions are directly attributable to a State authority and as such may, except in particular circumstances, engage the latter’s responsibility under the Convention. In that connection the Court refers to the aforementioned decision of the Commission. The Court considers that in order for a State to be held responsible for the inadequate handling of a case by an officially assigned attorney responsible for representing litigants vis-à-vis the courts but not for pleading their case, it must also be possible for the State to supervise and correct that attorney’s conduct where need be. However, such supervision would be incompatible with the independence of the attorneys’ professional association from the State. Moreover, it could even give rise to problems in terms of the equality of arms between the parties to judicial proceedings if the judge had, as a matter of course, to point the officially assigned attorney down a particular path by suggesting to him that he should lodge an amparo appeal with the Constitutional Court. The Court notes that the applicant had the assistance throughout the proceedings of officially appointed representatives, who succeeded in having the length of his sentence reduced by about three years through an appeal on points of law. It also takes account of the fact that the applicant’s complaint was not that he had been denied an effective defence before a court with jurisdiction to review the ordinary courts’ assessment of the facts and the evidence, but that he had been denied access to a court which had the specific function of safeguarding fundamental rights and that that court had a backlog of cases pending because of the excessive use of amparo appeals. Furthermore, the applicant’s case was examined both by a court of first instance and a court of appeal, the latter of which reduced the length of the sentence imposed because the aggravating circumstances found by the trial court did not exist, and so it was not for the Constitutional Court to reconsider the validity of the conviction or the length of the sentence imposed but to assess whether the right to a fair trial had been respected and the principle of presumption of innocence had been observed. The Court considers that, in the instant case, the allegations that the officially assigned attorney deprived the applicant of his right to effective legal assistance through negligence are not such as to engage the State’s responsibility directly and immediately, although they may possibly provide grounds for the applicant to bring an action for damages against that lawyer for professional misconduct. In view of the foregoing and the differences, as regards the seriousness of the problems stemming from the shortcomings of the legal assistance afforded to the applicant and the question whether the applicant was guaranteed the effective enjoyment of his defence rights, between this case and the cases of Daud v. Portugal (judgment cited above, pp.   739 et seq., particularly pp. 756-757), Artico v. Italy (judgment of 13 May 1980, Series   A no. 37) and Kamasinski v. Austria (judgment of 19 December 1989, Series A no. 168), the Court finds that this complaint is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.   2.     As regards the other complaints, the Court points out first of all that the presumption of innocence embodied in paragraph 2 and the various rights of which a non-exhaustive list appears in paragraph 3 are constituent elements, amongst others, of the notion of a fair trial in criminal proceedings (see, among other authorities, the following judgments: Unterpertinger v. Austria , 24 November 1986, Series A no. 110, p. 14, § 29, Artner v. Austria , 28 August 1992, Series A no. 242-A, p. 10, § 19, Pullar v. the United Kingdom , 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 706, § 45, and Foucher v. France , 18 March 1997, Reports 1997-II, p. 464, § 30). It will accordingly consider the applicant’s complaints from the standpoint of these provisions taken together. In so doing, it must consider the criminal proceedings as a whole. It is admittedly not the Court’s task to substitute its own assessment of the facts and the evidence for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see, mutatis mutandis , Edwards v. the United Kingdom , judgment of 16 December 1992, Series A no. 247-B, pp.   34 and 35, §   34). Since the applicant relied on Article 6 § 3 (b) of the Convention, the Court reiterates that this provision confers on everyone charged with a criminal offence the right to have adequate time and facilities for the preparation of his defence. Moreover, the “facilities” that all defendants in criminal cases must have include the possibility, in order to prepare their defence, of familiarising themselves with the result of the investigations carried out throughout the proceedings. The applicant, who was assisted by a lawyer, had enough time to prepare his defence against the accusations levelled against him and request that the evidence which he believed would be helpful when defending his case be taken, and that is the main aim of Article 6 § 3 (b). He has not provided any evidence of any irregularities that had a decisive impact on the way his defence was conducted and hence on the outcome of the proceedings. Taking all this into consideration, the Court considers that these complaints are manifestly ill-founded. For the rest, the Court notes that the Huelva Audiencia Provincial found the applicant guilty of homicide in a reasoned judgment which was delivered after a public hearing and referred to a large body of evidence gathered during the investigation and examined and freely debated at the hearing in accordance with the adversarial principle – evidence which the Audiencia Provincial considered sufficient. Moreover, at the cassation stage, the Supreme Court reduced the length of the sentence imposed on the applicant, having found that there were no aggravating circumstances. Nor does it appear from an examination of the decisions given by the domestic courts that the latter are vitiated by arbitrariness. That being so, the Court considers that this part of the application must also be rejected as being manifestly ill-founded pursuant to Article 35 § 3 of the Convention. For these reasons, the Court unanimously Declares the remainder of the application inadmissible.