CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 janvier 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 }   4 06.01.2010   Press release issued by the Registrar   Chamber judgment [1]   Vera Fernández-Huidobro v. Spain (application no. 74181/01)     ANTI-TERRORIST LIBERATION GROUPS (“GAL”): TRIAL OF FORMER STATE SECRETARY RAFAEL VERA FERNÁNDEZ-HUIDOBRO WAS NOT UNFAIR   No violation of Article 6 §§ 1 and 2 (right to a fair trial and presumption of innocence) of the European Convention on Human Rights   (The judgment is available only in French.)   Principal facts   The applicant, Rafael Vera Fernández-Huidobro, is a Spanish national who was born in 1945 and lives in Madrid. At the time of the events concerned by this case, he held the post of State Secretary at the Ministry of the Interior.   Criminal proceedings were instituted in January 1988 by central investigating judge no.   5 at the Audiencia Nacional against the Anti-Terrorist Liberation Groups ( Grupos Antiterroristas de Liberación – “the GAL”), which were suspected of being behind an illegal large-scale anti-terrorism action plan. In April 1993 central investigating judge no.   5 took leave of absence for personal reasons in order to stand in the June 1993 general election. He went on to occupy various posts within the Government. No significant investigative steps had been taken either before his leave of absence (besides the issuing of a letter of request for judicial assistance) or during his replacement by a temporary judge.   Among the posts occupied by the judge during his leave of absence was that of State Secretary at the Ministry of the Interior with responsibility for coordinating the national security forces’ efforts in combating drug trafficking and related money laundering by criminal organisations and other connected offences. For 28 days, in January 1994, he held a post of equal rank to that of Mr Vera Fernández-Huidobro, who was State Secretary for Security at the Ministry of the Interior at the time (and resigned shortly afterwards). According to the applicant, there were manifest feelings of animosity between the two men, against a background of rivalry as to their political responsibilities, a situation that went so far as to prompt his resignation. The judge denied that there was any such animosity.   In May 1994, a few days after his own resignation from the Government, central investigating judge no. 5 resumed his previous duties as a judge at the Audiencia nacional , and in that capacity took over the investigation of the GAL case. From then on the investigation was actively pursued. In January and April 1995 central investigating judge no.   5 placed Mr Vera Fernández-Huidobro under formal investigation for presumed offences of misappropriation of public funds and false imprisonment; he was accused of having played a role – by financial and other means – in the organisation of the GAL. The applicant unsuccessfully challenged the judge for bias, citing both their hostile relations and the link between the subject matter of the proceedings and the judge’s activities at the Ministry of the Interior. Mr Vera Fernández-Huidobro was held in pre-trial detention from February to July 1995, when he was released on payment of approximately 1.2 million euros as bail.   From August 1995 the investigation was taken over at Supreme Court level by a judge designated from that court’s Criminal Division, for reasons of jurisdiction on account of the parliamentary immunity enjoyed by certain of the accused (in particular, the Prime Minister, the former Minister of the Interior, then serving as a member of parliament, and other members of parliament). The newly assigned judge conducted a fresh investigation, during which most of the investigative steps were carried out anew. He conducted a further examination of witnesses who had given evidence to central investigating judge no. 5 implicating the applicant, and of the applicant himself, in the presence of all the parties and their counsel. Where any statements differed from those initially given, explanations were demanded. Those giving evidence were also cross-examined by the parties’ counsel and questions were put to them by the designated investigating judge. Directions were also given for additional evidence to be obtained (written evidence, witness statements and expert reports). At the end of the investigation, the applicant was charged with the further offence of membership of an armed organisation.   The case was set down for hearing in the Supreme Court in May 1998. A preliminary objection by the applicant alleging bias on the part of central investigating judge no. 5 was dismissed, as the Criminal Division held that there was no proof of the animosity alleged by the applicant. On 25 July 1998 the same division sentenced Mr Vera Fernández-Huidobro to ten years’ imprisonment for misappropriation of public funds and false imprisonment. The judgment was based, among other factors, on the testimony of co-defendants and contained detailed reasons as to why that evidence (including statements by co-defendants who had changed their version of events in the course of the proceedings) had been taken into account. The Supreme Court found that the evidence in question had not been guided by any feelings of revenge or animosity, or by the desire of those concerned to exculpate themselves or to secure advantages in the proceedings. An amparo appeal lodged by the applicant with the Constitutional Court was dismissed on 17 March 2001, in particular on the ground that the Supreme Court’s decision was neither arbitrary nor unreasonable.   Complaints, procedure and composition of the Court   Mr Vera Fernández-Huidobro complained of a lack of independence and impartiality on the part of central investigating judge no. 5 (in view of his poor relationship with that judge and the latter’s connection to the subject matter of the proceedings in question) and, more generally, of a violation of his right to a fair trial under Article 6 § 1. He also alleged a violation of his right to presumption of innocence under Article 6 § 2, complaining that the   investigating judge had been biased and that statements made by co-defendants with a view to securing personal advantages had been taken into account by the investigating judge as evidence against him.   The application was lodged with the European Court of Human Rights on 26 June 2001. On 2 May 2007 the Court declared inadmissible the applicant's complaint concerning the length of the proceedings against him; his other complaints were declared admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Elisabet Fura (Sweden), Egbert Myjer (the Netherlands), Ann Power (Ireland), judges , Alejandro Saiz Arnaiz (Spain), ad hoc judge , and Stanley Naismith , Deputy Section Registrar .     Decision of the Court   Whether the applicant’s case was heard by an impartial tribunal   In accordance with its case-law, the Court examined this complaint by means of two approaches: a subjective approach, attempting to ascertain a judge’s personal conviction or interest in a particular case, and an objective approach, determining whether he offered sufficient guarantees to exclude any legitimate doubt in that respect.   Applying the objective test, the Court examined in particular whether the post held by central investigating judge no. 5 within the Ministry of the Interior (where he would have had dealings with the persons concerned by the GAL case) could have raised an issue as to his impartiality once he had returned to his post as a judge and taken over the investigation of the pending criminal case. It considered that the applicant’s concerns on that account were objectively justified. After he had left political office to resume the investigation in the present case, central investigating judge no. 5 did not satisfy the impartiality requirement of Article 6.   Applying the subjective test, the Court reiterated that a judge’s personal impartiality was to be presumed until there was proof to the contrary. Here, it did not find sufficient evidence that central investigating judge no. 5 had demonstrated any personal bias against the applicant. Nevertheless, it did not consider it necessary to examine the issue any further, seeing that it had already found that the judge had not been objectively impartial.   Beyond that finding of a lack of impartiality on the part of the first investigating judge, however, the Court reiterated that a breach of the requirements of Article 6 § 1 attributable to a judicial body could be redressed at a subsequent stage of the proceedings. In the present case, the Supreme Court and, in particular, the investigating judge appointed from that court’s Criminal Division, had cured the defect in question by conducting a fresh investigation from the outset. During that process, most of the investigative steps had been carried out anew and many further measures had been taken, and the parties had had the opportunity, both before the designated investigating judge and at the trial in the Supreme Court, to confirm or contradict the statements previously taken from them, in a procedure offering all the necessary guarantees.   The Court concluded by four votes to three that there had been no violation of Article 6 § 1.   Complaint relating to the presumption of innocence   The Court noted that the Supreme Court had reached its finding as to the applicant’s guilt on the basis of all the evidence produced against him during the investigation (not only before the central investigating judge but also before the designated judge of the Criminal Division of the Supreme Court) and at the trial.   It observed, in particular, that the Supreme Court had given its ruling in a fully reasoned decision. The Court did not have jurisdiction to re-examine evidence or to revise the domestic courts’ interpretation or replace it with its own opinion as to the evidence on which the conviction had been based. It therefore found that the court concerned had not been responsible for any infringement of the applicant’s defence rights, having afforded the benefit of adversarial proceedings. The fact that the applicant had been convicted at the end of the proceedings was not sufficient for the Court to find a violation of the Convention provision he relied on.   The Court concluded by four votes to three that there had been no violation of Article 6 § 2.     Judge Casadevall, joined by Judge Power, expressed a dissenting opinion. Judge Zupančič also expressed a dissenting opinion. The opinions are annexed to the judgment.   *** This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.