CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 mars 2025

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SPAIN (Application no. 56712/21)   JUDGMENT   Art 6 § 1 (criminal) and Art 6 § 3 • Conviction for tax-related offences of an elderly person with a cognitive impairment • Applicant’s mental health condition did not render him unfit to stand trial or unable to understand the scope and purpose of the proceedings • Applicant represented by a lawyer of his own choosing • In case-circumstances, in absence of specific request to consider procedural adjustments, domestic courts not called on to offer or provide them of their own motion • Applicant’s failure to substantiate any specific impact of the lack of adjustment measures on the trial’s overall fairness • Conviction based on several pieces of evidence with significant weight given to documentary evidence in view of the financial and technical aspects involved in tax-related offences • Sufficient steps taken by judicial authorities to ensure proceedings were Convention compliant• Proceedings as a whole fair   Prepared by the Registry. Does not bind the Court.   STRASBOURG 13 March 2025 FINAL   13/06/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of F.S.M. v. Spain, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mattias Guyomar , President ,   María Elósegui,   Stéphanie Mourou-Vikström,   Mykola Gnatovskyy,   Stéphane Pisani,   Úna Ní Raifeartaigh,   Artūrs Kučs , judges , and Victor Soloveytchik, Section Registrar, Having regard to: the application (no.   56712/21) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr F.S.M. (“the applicant”), on 17 November 2021; the decision to give notice to the Spanish Government (“the Government”) of the complaints under Article 6 §§ 1 and 3 (b) of the Convention and declare the remainder inadmissible; the decision not to disclose the applicant’s name; the parties’ observations; Having deliberated in private on 15 October 2024 and 4 February 2025, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The application concerns the criminal conviction of the applicant, an elderly person with alleged difficulties in understanding the scope and course of the criminal proceedings conducted against him and in preparing his defence, owing to a cognitive impairment. It raises issues under Article   6 §§   1 and 3 of the Convention. THE FACTS 2.     The applicant was born in 1948 and lives in Minorca. He was represented by Mr A. Xumetra Subirana, a lawyer practising in Barcelona. 3.     The Government were represented by their co-Agent, Mr L.E. Vacas Chalfoun. 4.     The facts of the case may be summarised as follows.         CIVIL PROCEEDINGS for the applicant’s incapacitation 5 .     On 12 November 2015, a third party asked the public prosecutor to initiate civil proceedings for the applicant’s incapacitation. The request included a report prepared by two psychologists on 18 May 2015, concluding that the applicant suffered from the effects of an attention deficit hyperactivity disorder (“ADHD”), the symptoms of which had been present since childhood, as well as a personality disorder with schizoid and compulsive features. Two additional reports were also prepared by a psychiatrist, Dr   L., on 12 February and 1 June 2015 stating that the applicant showed symptoms of a psychotic disorder. The report of 12   February 2015 further indicated that while the applicant had good visual memory and mechanical skills, he had faced “ups and downs” to complete his engineering degree and that in his different jobs he had always been assisted by another person in charge of the paperwork, which he had been unable to manage. 6 .     On 13 January 2016 a forensic report was issued by a doctor from the Institute of Legal Medicine of the Balearic Islands after examining the applicant. That report mentioned that the applicant had had ADHD since childhood; showed signs of a personality disorder with schizoid and compulsive features; had had amnestic disorders for several years; and had had psychotic disorders with compensatory mechanisms since childhood. The expert observed disturbances in the applicant’s memory and a deterioration of his intellectual capacities, as well as difficulties managing documents and administrative tasks. The report concluded that the applicant’s diagnosis was compatible with a disorder starting in childhood or adolescence, schizoid and compulsive disorder, psychotic disorder with compensatory mechanisms, and the effects ( secuelas ) of ADHD with symptoms having been present since childhood. Those conditions could alter the applicant’s capacity to understand his actions and act accordingly, especially in administrative matters. His incapacity was not total, but only relating to tasks or situations with economic or administrative content or requiring organisational or administrative skills. The report consequently proposed partial guardianship ( curatela ). 7.     On 25 February 2016, in view of those medical reports, the public prosecutor asked for the partial incapacitation of the applicant. 8.     On 9 June 2016 the applicant was examined by the judge of the Ciutadella de Menorca Court of First Instance no. 1. On 17 June 2016 the forensic doctor from the Institute of Legal Medicine of the Balearic Islands, after having re-examined the applicant, confirmed the conclusions of his previous report (see paragraph 6 above). 9 .     On 11 October 2016 the Ciutadella de Menorca Court of First Instance   no.   1 declared the applicant partially incapacitated and ordered his placement under partial guardianship ( curatela ). The decision stated as follows: “[According to the report by the court’s forensic expert,] Mr F.S.M. has been diagnosed with a disorder with an origin in his childhood or adolescence, schizoid and compulsive disorder and psychotic disorder with compensatory mechanisms, [arising from] ADHD with symptoms since childhood. Partial guardianship [is proposed from the medical perspective], mainly with regard to important decisions or decisions with administrative content. This report is complemented by the examination made [by the judge] and the documentary evidence ... [P]artial incapacity must be declared and Mr F.S.M. must be placed under guardianship, with the scope and limits indicated in Articles 259 to 275 of the Civil Code, in particular the need to have the consent of the person exercising the position of guardian to validly make decisions and enter into contracts, from which obligations may result for the incapacitated person, and to perform actions or make decisions or enter into contracts in the administrative sphere. This decision shall be registered in the relevant civil register.” 10 .     The decision explicitly mentioned that there were criminal proceedings pending against the applicant (see paragraph 12 below), stating as follows: “ Lastly, it should be pointed out that the person with allegedly diminished capacity, Mr.   F.S.M., is under investigation in several preliminary proceedings, of which this court is aware owing to the distribution of criminal cases. A question will therefore have to be resolved at the appropriate time as to whether or not this decision may have an impact on the criminal cases indicated; the significance that this declaration of partial incapacity may or may not have for the criminal liability of the person concerned will not be an a priori exonerating circumstance but rather a question to be determined on a case-by-case basis . ” 11 .     On 21 September 2017 the applicant’s relatives filed a claim seeking to change his guardian. On 17 April 2018 the person initially designated as the applicant’s guardian, Mr T., resigned from his position for health reasons. Owing to the disagreement between the applicant’s relatives and the public prosecutor about the person to be appointed as guardian, a hearing was held. On 18 October 2018 the first-instance court ordered that Mr T. should be replaced by the Aldaba Foundation, stating that its functions would have the same scope and limits as those set in the judgment of 11 October 2016.       criminal proceedings AGAINST THE APPLICANT 12 .     In December 2013 criminal proceedings were brought against the applicant in relation to his alleged involvement in tax fraud. He was accused of evading the payment of the relevant VAT and corporate taxes while being the administrator of two companies in 2007 and 2008. On 29 April 2016, after the charges had been presented by the public prosecutor, the Barcelona investigating judge no. 28 referred the proceedings to the Audiencia Provincial for them to be examined on the merits ( auto de apertura del juicio oral ). 13 .     On 11 October 2017, at the applicant’s request, the Audiencia Provincial held a preliminary hearing concerning the applicant’s capacity to understand the implications of the trial and the accusation against him. A forensic expert gave a verbal report, concluding that the applicant’s mental health condition was not so serious as to impede him from understanding the purpose of the trial and its implications. The main hearing was adjourned for other reasons and rescheduled for 17   January 2018. 14 .     On 16 January 2018 the applicant’s legal aid lawyer requested the suspension of the proceedings arguing that the applicant could not understand the administrative concepts related to the facts of which he had been accused. She stressed that the defence of the applicant had been severely affected by his cognitive impairment, his difficulties in understanding the documents and the lack of cooperation from the lawyers who had previously represented the applicant. She informed the Audiencia Provincial of the judgment declaring the applicant partially incapacitated (see paragraph 9 above) and submitted several documents concerning his mental health, namely the report prepared by the forensic expert from the Institute of Legal Medicine (see paragraph   6 above) and an additional report, prepared by Dr L. at the applicant’s request, which stated that the applicant’s capacity to understand the scope of the proceedings was limited. The lawyer concluded that the applicant did not have the necessary capacity to participate in the proceedings and asked for the hearing to be adjourned, further stating that the proceedings should be discontinued. Alternatively, she asked the court to obtain expert evidence aimed at clarifying the applicant’s condition and to allow the applicant to participate via videolink and to be assisted by his guardian. 15 .     On 17   January 2018 the hearing was adjourned and rescheduled for 23   May 2018, since neither the applicant nor the representative of one of the other parties were present. The Audiencia Provincial ordered a new forensic examination in order to evaluate the applicant’s cognitive and volitional capacity, the origins and consequences of his disorders and whether he had sufficient capacity to stand trial and to understand the scope and consequences of the trial and his statements. It further stated that any new evidence would be submitted on the day of the hearing. 16 .     On 22 May 2018 the forensic expert issued a second report on the applicant’s condition. It stated that the applicant had a history of mental illnesses, including attention deficit hyperactivity disorder, personality disorder and cognitive impairment. However, it noted that there were no medical reports confirming the origins and development of his conditions. In addition, it stated that he was able to identify the difference between right and wrong and act accordingly. The report concluded that at the moment of the examination he did not exhibit signs of any cognitive or volitional disorders, nor did he show signs of an acute psychiatric disorder or systemic delirium. The report also referred to his capacity to stand trial. It stated as follows: “Concerning his capacity to attend a hearing, the illnesses he suffers from do not prevent him from appearing at the hearing as long as procedural adjustments [ medidas preventivas ] are taken, such as the assignment and support of another person throughout the judicial proceedings and/or, failing that, a minimally invasive environment is provided, such as testifying via videolink.” 17 .     On 29 May 2018, following the applicant’s failure to appear for trial for the second time and in view of its finding that he was trying to evade justice, the Audiencia Provincial ordered his pre-trial detention. The applicant’s lawyer opposed this measure, mainly relying on the applicant’s mental health condition and the fact that he was under partial guardianship. The Audiencia Provincial noted that (i) according to the forensic reports available, the applicant had sufficient capacity to stand trial; (ii) the incapacity proceedings (see paragraphs 5 - 11 above) had been initiated following the accusation against him; (iii) the proceedings for replacing his guardian (see paragraph 11 above) had been brought shortly before the respective dates of the hearings; (iv) Mr T. had continued to act as guardian until his resignation had been formally accepted; and (v) the presence of the guardian at the trial was unnecessary, in view of the forensic reports and the incapacity judgment. 18 .     On 14 June 2018 the Audiencia Provincial dismissed the applicant’s appeal against the pre-trial detention order and asked the hospital for information regarding the applicant’s admission to hospital, which had been reported by his representative. In reply, the hospital stated that the applicant had been voluntarily admitted to hospital between 1 and 14   June 2018 because he had been having thoughts of self-harm. It also provided information regarding the specific medical treatment given and submitted the applicant’s medical file. 19.     On 22 June 2018 the applicant was taken voluntarily to the Minorca prison. 20 .     On 26 June 2018 the applicant’s lawyer submitted a private psychiatric expert report dated 21 June 2018 and requested the discontinuation of the proceedings and the applicant’s release. The report stated as follows: “Owing to the significant deterioration of mental functions impacting his cognitive and volitional faculties [and that] from the perspective of testifying at a hearing, the patient does not possess the necessary capacity in relation to memory, calculation, mental focus, deliberative critical thinking and abstract thinking, as well as other cognitive functions which are needed to give correct answers to the questions put to him, nor can he properly perform the mental functions essential to his defence”. 21.     On 18 July 2018 the applicant’s lawyer asked the Audiencia Provincial – in the event that it did not order the discontinuation of the proceedings as previously requested – to admit new evidence related to the applicant’s capacity, call a number of experts to the hearing and order a psychiatric expert report. The lawyer further requested the applicant’s release. 22 .     On 26 July 2018 the Audiencia Provincial rejected the requests to discontinue the criminal proceedings and to accept new evidence. With regard to the psychological report submitted by the defence, it stated: “The above-mentioned report concludes ... that the accused shows a moderate deterioration [in his mental capacity]. This does not contradict the two other previous forensic reports that were issued [on 11   October 2017 and 22 May 2018] in response to the defence’s request, both of which, while acknowledging that Mr [F.S.M.] had certain limitations, stated that he had sufficient capacity to stand trial and to understand its scope and purpose, corroborating what was established in the decision granting the status of incapacity.” The Audiencia Provincial further noted that the applicant’s admission to hospital (see paragraph 18 above) had been voluntary and that, during his time there, the applicant had insisted on his incapacity and “his lack of responsibility with regard to the legal problems that were pending”. The Audiencia Provincial found that the applicant was able to understand the scope of the proceedings against him and to stand trial, finding it inappropriate to discontinue them under Articles 381 to 384 of the Criminal Procedure Act. The Audiencia Provincial also held that the new evidence requested should be declared inadmissible as the request had been made out of time, but it would be possible to propose new evidence at the beginning of the hearing. The court stated that it was unnecessary to order a new forensic report as there had already been two previous forensic reports assessing the applicant’s capacity. An additional related request was rejected on 13   September 2018 for the same reasons. 23.     In parallel, on 24 July 2018 the applicant appointed two new lawyers to replace the legal aid lawyer. On 25 July 2018 the new lawyers requested the provisional release of the applicant, arguing that owing to his mental health condition there was no risk of his absconding. They also stated that they would personally ensure his attendance at the hearing. 24.     On 26 July 2018 the Audiencia Provincial ordered the applicant’s provisional release, imposing on him an obligation to appear either before the Audiencia Provincial or before the court of his judicial district twice a month. 25 .     On 8 January 2019 the applicant’s lawyer asked the Audiencia Provincial to admit into evidence new documents, including a forensic report dated 1   October 2018, which concluded that the applicant had the capacity to understand the consequences of the trial, but that his cognitive deterioration, mainly affecting his memory and orientation, “could have an impact on his ability to answer the questions put by the parties and to participate in his defence and could therefore compromise both”. 26 .     The hearing took place on 16 and 17 January 2019. The applicant’s lawyer asked the Audiencia Provincial to admit into evidence the documents submitted on 8 January 2019; to agree to an additional forensic examination of the applicant; and, on that basis, to discontinue the criminal proceedings, in accordance with Article 383 of the Criminal Procedure Act. The court stated that it had previously concluded that there were no circumstances impeding the applicant from standing trial and that it could not be inferred from the new forensic report that he suffered from a disorder that could justify the discontinuation of the proceedings. It further refused to admit the additional evidence submitted on 8 January 2019. During the hearing, the applicant made use of his right to remain silent and only intervened during his closing statement. In particular, when asked if he intended to reply to the questions put forward by the other parties, he stated: “I cannot reply because I don’t know”, and when asked again he responded: “It’s not that I don’t want [to reply], but I can’t”. In his closing statement he said: “I don’t know anything. I can only say that I had cancer, I had it for many years, and they told me not to sit down, so I went to the construction sites, the paperwork was managed by others. Now I have cancer again. I don’t have any idea about anything. I was told ‘sign here, sign there’. I don’t know anything else.” 27.     On 11 February 2019 the Audiencia Provincial found the applicant guilty of three criminal offences against the Public Treasury. He was sentenced to two   years and six months’ imprisonment for each of the three offences, as well as to three fines, and, among other penalties, special disqualification from exercising a profession or engaging in an industrial or commercial occupation or business administration for the duration of the prison sentence, and loss of the opportunity to obtain public subsidies or assistance and the right to enjoy tax or social security benefits or incentives for a total of thirteen years and six months. In addition, the judgment ordered the applicant to pay the Public Treasury a total of 4,678,368.99 euros (EUR) in respect of the sums defrauded. 28 .     The Audiencia Provincial considered proven that in 2008 the applicant, with full awareness and willingness, and with the aim of circumventing tax obligations and the payment of the relevant taxes, concealed part of the economic activity in the VAT declarations of two companies of which he was the sole administrator, and unduly included sums to be compensated from previous years, evading the payment of EUR   2,702,456.68 for the first company and EUR   1,098,881.56 for the second one. Nor did he submit the corporate tax declaration for the second company, evading the payment of EUR   877,030.75. 29 .     The Audiencia Provincial noted that the applicant had made use of his right not to testify and relied on several pieces of evidence, namely the statement of the co-accused; two expert reports by a treasury inspector and a tax inspector; the statements of several witnesses, including colleagues and relatives of the accused; and several documents not challenged by the parties. The court indicated that it was undisputed, as it was shown by the available documents and expert reports and had not been challenged by the defence: (i)   that the applicant had been the sole administrator of the two companies at the relevant time and had had an obligation to submit the relevant tax declarations; (ii) that he had personally intervened in two specific property sales by his companies without properly declaring the relevant amounts in the VAT declarations; and (iii) that the corporate tax declaration for the second company for the 2008 period had not been submitted. In the judgment it was noted that, according to the documents submitted, the applicant had created several companies since 1999 and had directly or indirectly managed them, acting with full capacity, for several years. The court therefore concluded that the applicant had concealed several sums despite being under an obligation to declare them and being aware of that obligation. 30 .     The Audiencia Provincial ’s judgment addressed the applicant’s capacity as a preliminary matter, stating: “In the preliminary questions procedure, Mr [F.S.M.’s] lawyer proposed the admission of the documentary evidence submitted on 8 January 2019 ... [Part of the evidence] is intended to support the request, already raised repeatedly, to discontinue the proceedings, under Article 383 of the Criminal Procedure Act, on the grounds of the defendant’s mental disturbance on the basis of medical reports already in the case file, with the sole exception of a forensic report issued ... on 1 October 2018 in the proceedings against Mr [F.S.M.] before the Barcelona no. 13 investigating judge. ... With regard to the recurring question of Mr [F.S.M.]’s incapacity ... the medical documentation that was intended to be included is already in the case file and was assessed at the time, namely two forensic reports requested by the defence, the first dated 11 October 2017 issued in Barcelona and the second dated 22 May 2018 in Minorca [which were prepared on the basis of the] examination and assessment of the medical documentation submitted by the party itself, as well as the decision on partial incapacity placing the defendant under guardianship, ordered by the Ciutadella de Menorca Court on 11 October 2016, [both of them] concluding that the accused had sufficient capacity to know and understand the scope and purpose of the proceedings, and by virtue of which this court issued an order dated 26 July 2018, in which the psychiatric report of 21 June 2018 was assessed ... Furthermore, those conclusions about the applicant’s awareness of the object and consequences of the proceedings are corroborated by [his] closing statement, in which he exercised his right to remain silent and stated that he ‘could not declare’ and that he ‘did not know anything, [he] only went to the construction site and signed what [he] was asked to sign’ and that he ‘was suffering from cancer at that time’. ... The only new evidence submitted was a new forensic report dated 1 October 2018 issued in separate proceedings before the Barcelona no. 13 investigating judge, which also did not conclude that he lacked the capacity to know and understand the scope of the criminal proceedings.” 31.     On 10 May 2019 the applicant lodged an appeal on points of law ( recurso de casación ) with the Supreme Court. He argued that the refusal to admit some of the medical reports had amounted to a violation of his right of access to justice and to prepare his defence under Articles 17 and 24 of the Spanish Constitution and Article 6 § 3 (b) of the Convention. He alleged that those items of evidence were relevant to the decision to discontinue the criminal proceedings on the basis of his diminished mental capacity or, alternatively, that they could have led to the application of a mitigating circumstance of mental disturbance in his case. 32 .     On 4 March 2021 the Supreme Court dismissed the appeal and upheld the judgment of the Audiencia Provincial , endorsing its conclusions concerning the applicant’s capacity to stand trial. With regard to the application of Article 383 of the Criminal Procedure Act, the Supreme Court stated: “[Article 383 of the Criminal Procedure Act] ... is connected with an essential requirement, namely the need for a procedural framework that outlines the exercise of jus puniendi by the State to define a scenario that makes it possible for the right to a defence to be upheld. A defendant who lacks the mental faculties to be aware of the legal scope of his or her answers to the prosecution’s examination or, in general, of the constitutional value of the right not to confess guilt and the presumption of innocence is defenceless in the face of the State’s punitive power ... In sum, the assessment made by the first-instance court of the capacity of the appellant, who, despite his condition, was considered to be in a position to exercise his defence rights effectively, seems appropriate since the medical information provided, assessed as a whole, cannot be considered to have such significance that the above ‑ mentioned Article 383 is applicable, which is why there is no doubt about his capacity to mount a defence, as was evidenced by those statements which, as we have seen, he made in his closing statement; the decision to discontinue the proceedings [under Article 383] requires much more . ” 33 .     The applicant lodged an amparo appeal with the Constitutional Court, alleging a violation of his right to an effective judicial protection under Article   24 of the Spanish Constitution. The applicant’s lawyer complained about the rejection of additional evidence, reiterating that it had been relevant in deciding whether to discontinue the proceedings and/or apply a mitigating circumstance. He argued that, owing to the applicant’s memory problems, he could not participate in his defence by providing an alternative version of the facts and/or relevant information and, therefore, he was not able to defend himself. He asked the Constitutional Court to quash the judgments of the Audiencia Provincial and the Supreme Court and to restore the proceedings to the moment of the hearing before the Audiencia Provincial in order to properly assess the unduly rejected evidence. 34.     The amparo appeal was declared inadmissible on 29 June 2021 for lack of constitutional relevance. RELEVANT LEGAL FRAMEWORK AND PRACTICE 35.     The relevant Article of the Spanish Constitution reads as follows: Article 24 (The right to an effective remedy and to a fair trial) “1. Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating statements; to not declare themselves guilty; and to be presumed innocent. The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences.” 36 .     The relevant parts of the Criminal Procedure Act read as follows: Article 381 “If the judge notices signs of diminished mental capacity in the defendant, he or she shall immediately submit him or her to an examination by forensic experts at the establishment in which he or she is imprisoned, or in another public establishment if it is more convenient or if he or she is at liberty. In such a case, the experts shall give their report in the manner set forth in Chapter   VII of this Title.” Article 383 “If mental disturbance occurs after the offence has been committed, once the summary proceedings have been concluded, the competent court shall order the case to be discontinued until the defendant is restored to health, and the provisions of the Criminal Code shall also apply to the defendant as prescribed for those who commit an offence in a state of mental disturbance. ....” 37 .     With regards to the specific measures to be applied where a person commits an offence in a state of mental disturbance, the Criminal Code states: Article 101 “1. Persons who have been declared exempt from criminal responsibility under Article   20 § 1 may be committed, if necessary, for medical treatment or special education to an appropriate facility for their mental disorder or disturbance, or any of the other measures established by Article 96 § 3 may be imposed on them. The confinement may not exceed the duration that a sentence of imprisonment would have lasted, had the individual been declared responsible, and to that end the judge or court shall set that maximum limit in the sentence.” 38 .     In 2021 the Code of Civil Procedure was amended to include a specific provision regulating procedural adjustments for persons with disabilities. This provision was further amended in 2023 to regulate procedural adjustments for elderly persons. Under Article 4, this Code is applicable to criminal proceedings in the absence of specific provisions in the Criminal Procedure Act. The relevant rule, as in force since March 2024, reads as follows: Article 7 bis “1. In proceedings involving persons with disabilities or elderly persons, the necessary accommodations and adjustments shall be made to enable them to participate on an equal footing if they so request or, in any event, if they are 80 years of age or older. To this end, persons aged 65 years or older shall be considered as elderly persons. In cases concerning persons with disabilities, the accommodations and adjustments shall be made both at request of the parties or of the public prosecutor and by the court of its own motion. In cases concerning elderly persons below the age of 80, the accommodations and adjustments shall be made at the person’s request. In cases concerning persons aged 80 or older, the accommodations and adjustments shall be made both at the person’s request and by the court of its own motion. The accommodations and adjustments shall be made at every stage and within each procedural step in which they are necessary, including communications, and may refer to communication, understanding and interactions with the environment. 2. Persons with disabilities, as well as elderly persons, have the right to understand and be understood in every step that may be taken. To this end: (a) All communications, verbal or in writing, addressed to a person with a disability, aged 80 years old or older, or elderly person who has requested so, shall be made in a clear, simple and accessible language, in a manner that takes into account his or her personal characteristics and needs, using means such as easy-read versions. If necessary, the information shall also be given to the person who is supporting the person with a disability in the exercise of his or her legal capacity. (b) Persons with disabilities shall be provided with the necessary assistance or support to be understood, which shall include interpretation in sign languages legally recognised and support for the verbal communication of deaf people, people with a hearing disability and deafblind people. (c) The participation of an expert performing the necessary accommodation and adjustments in order to allow a person with a disability to understand and be understood shall be permitted. (d) Persons with disabilities and elderly persons may be accompanied by a person of their own choosing from the first contact with the authorities. ...” 39.     The relevant provisions of the Spanish Civil Code in force at the relevant time read as follows [1] : Article 289 “The guardianship of incapacitated persons shall have as its purpose the guardian’s assistance in those acts expressly referred to in the judgment that established the guardianship.” Article 290 “In the event that the judgment on incapacitation has not specified the acts for which the intervention of the guardian should be necessary, such intervention shall be deemed to extend to the same acts for which guardians require judicial authorisation, in accordance with this Code.” THE LAW         ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 40.     The applicant complained under Article 6 § 1 and 3 (b) of the Convention that he had been unable to prepare his defence properly because of his cognitive impairment, which had prevented him from comprehending the proceedings and being able to communicate adequately with his lawyer. 41.     Article 6 of the Convention, in so far as relevant, provides: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” ... 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 ...” 42.     The Court reiterates that the requirements of paragraph 3 of Article   6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1; accordingly, the Court will examine the complaint under those two provisions taken together (see, among other authorities, F.C.B. v.   Italy , 28   August 1991, § 29, Series A no. 208-B; Vaudelle v. France , no.   35683/97, §   35, ECHR 2001 ‑ I; and Bogdan v. Ukraine , no. 3016/16, § 32, 8   February 2024).    Admissibility      The parties’ submissions    The Government 43.     The Government argued that the application should be declared partly inadmissible owing to non-exhaustion of domestic remedies. The applicant’s complaints concerning the alleged difficulties in preparing his defence as a result of his condition had not been adequately raised as a separate complaint in the amparo   appeal before the Constitutional Court. The applicant had not claimed, neither in his amparo appeal nor in his appeal on points of law, that the fact that he had not participated in the hearing via videolink or that the guardian had not been present at the hearing had negatively affected his defence. The Government further argued that, at the beginning of the hearing of January 2019, the applicant’s lawyer had limited himself to submitting new evidence and requesting the discontinuation of the proceedings, without arguing that there had been any difficulties in preparing the applicant’s defence or requesting any procedural adjustments (such as participation via videolink or the presence of the guardian at the hearing). Nor had the lawyer appealed against the Audiencia Provincial ’s decision of 26 July 2018 (see paragraph   22 above). Lastly, the applicant had not appealed against or requested the review of the incapacitation judgment of 11 October 2016.    The applicant 44.     The applicant argued that Article 35 of the Convention should not be applied with excessive formalism with regard to exhaustion of remedies. The amparo appeal lodged with the Constitutional Court had been formally articulated as a single allegation, but had nevertheless pertained to a violation of Article   24 of the Spanish Constitution in two different ways: a violation of the right to the use of evidence relevant to the defence of the accused in a criminal case (Article 24 § 2), as well as of the right to effective judicial protection and a defence (Article 24 § 1). He further argued that the difficulties in the preparation of the defence had not been raised at the hearing because it was not a new element and, indeed, the Audiencia Provincial had requested a forensic report which had stated the measures needed to preserve his right to defend himself (see paragraphs 14 and 16 above). Domestic remedies had therefore been duly exhausted.      The Court’s assessment 45.     The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. That rule must be applied “with some degree of flexibility and without excessive formalism”; it is sufficient that the complaints intended to be made subsequently before the Court should have been raised, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law”, before the national authorities ( see Castells v. Spain , 23   April 1992, § 27, Series A no. 236, and Fressoz and Roire v. France [GC], no.   29183/95, § 37, ECHR 1999-I). The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available both in theory and in practice at the relevant time, that is to say that the remedy was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Tiba v.   Romania , no. 36188/09, § 21, 13 December 2016, with further references). 46.     In the present case the Court notes that while the Government referred to several available remedies, they did not provide any examples where the use of those remedies had resulted in the domestic courts granting any specific procedural adjustments.   The Court further notes that the issue of the applicant’s mental health condition was raised before the domestic authorities on several occasions. While it is true that the applicant’s allegations were focused on stressing that he could not stand trial and that the proceedings should be discontinued, the various documents submitted in support of that request did refer to a history of several mental health disorders and to the deterioration of his cognitive faculties. In the Court’s view, those elements sufficiently drew the attention of the domestic courts to the existence of doubts about the applicant’s capacity to effectively participate in the proceedings, in a manner which appears to be consistent with the relevant domestic law. Lastly, it appears that at the time of the events, there were no legal provisions expressly regulating specific types of procedural adjustments for elderly persons or persons with disabilities (see paragraph 38 above). 47.     In view of the foregoing considerations, the Court will proceed on the assumption that the applicant exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. Accordingly, the Government’s preliminary objection should be dismissed. 48.     The application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.    Merits      The parties’ submissions    The applicant 49.     The applicant alleged that the right to adequately prepare one’s defence comprises the effective communication between the accused and the lawyer and the ability of the accused to understand and answer the questions concerning the accusations. It was therefore impossible to have an adequate defence in situations where the accused suffered from a cognitive impairment preventing him from understanding the charges and from properly answering the relevant questions put to him or her. The applicant accepted that States had a wide discretion as regards the means to ensure that their legal systems were in compliance with the requirements of Article 6 of the Convention. In his view, in the Spanish domestic system, the relevant safeguards in that connection were provided by Article 383 of the Criminal Procedure Act and Article   101 of the Criminal Code (see paragraphs 36 and 37 above) and referred to the Supreme Court’s case law in that regard (see paragraph   32 above). 50.     The applicant stated that the conclusions of the forensic reports of June and October 2018 called for additional evidence to verify his mental health condition, particularly in view of the time that had elapsed between the reports requested by the Audiencia Provincial and those submitted by the applicant. He further argued that the procedural adjustments indicated by the forensic report of May 2018 (see paragraph 16 above) had been ignored by the domestic courts. His right to a fair trial had therefore been breached by the non-observance of the adjustments indicated in the forensic report. He further argu