Failure to hear the applicant and witnesses on appeal flouted the requirements of the right to a fair trial.


Camacho Camacho v. Spain 24/09/2019 (application no.  32914/16)

see here


Fair trial and the principle of adversarial  hearing.

The applicant was charged with assaulting his ex-wife. He was acquitted at  first instance but  the public prosecutor  appealed . He was sentenced to imprisonment and fined, even though he and several witnesses had
never been questioned and despite the fact that the appellate court had reassessed the subjective
aspects of the case.

The Court held that the assessment carried out by the Audiencia Provincial had been so substantial
as to require the applicant and the witnesses to be questioned. It found that there had been a
violation of the adversarial principle.


Article 6 par. 1


The applicant, Antonio Camacho Camacho, is a Spanish national who was born in 1980 and lives in
Bonavista (Tarragona).

On 30 April 2008 Ms C., a lawyer representing the applicant’s wife, obtained custody of their
daughter, a minor. On 7 May 2008 Ms C. was the victim of an assault. The applicant and two others
were charged with the offence. Following a public hearing, by judgment of 15 March 2013, Criminal
Court no. 3 acquitted the defendants. The victim, Ms C., and the public prosecutor’s office appealed.
The Audiencia Provincial, by judgment of 7 October 2013, declared the judgment null and void on
the grounds of a serious error in assessing the evidence. The Audiencia Provincial only partly
accepted the facts declared proven by the criminal court, and called a witness’s credibility into
doubt. It ruled, without a public hearing, that the circumstantial evidence pointed to the applicant as
having been involved in the acts in question. It remitted the case to Criminal Court no. 3.

On 15 January 2014 the criminal court, having reconsidered the evidence, once again held that there
was insufficient evidence of the applicant having committed the offences in question, and once
again acquitted him. The public prosecutor’s office appealed.

By a decision of 27 May 2015 a new bench of the Audiencia Provincial rejected the evidence
adduced by the public prosecutor’s office. On 15 July 2015 the Audiencia Provincial held a public
hearing. No evidence was considered, and the public prosecutor’s office pointed out that the
examination of the applicant had been rejected and could therefore no longer take place. At the end
of the hearing the applicant, who attended but was not questioned, spoke last, denying any
involvement in the impugned facts.

On 29 July 2015 the Audiencia Provincial found the applicant guilty and sentenced him to
imprisonment, fined him and ordered him to pay compensation to the victim. According to the
Audiencia Provincial, the evidence gathered at first instance supported the following interpretation:
the applicant had planned the assault on Ms C. in response to the rejection of his application for
custody of his daughter during the civil proceedings.

On 1 September 2015 the applicant applied to have the judgment delivered by the Audiencia
Provincial set aside, but his application was rejected. The applicant then lodged an amparo appeal
with the Constitutional Court. On 26 January 2016 his appeal was declared inadmissible on the
grounds that he had not demonstrated its “special constitutional importance”.


Article 6 § 1

The Court observed that a hearing had been held before the Audiencia Provincial, attended by the
applicant and his representative. It nevertheless noted that no direct, personal and adversarial
hearing of the applicant and the witnesses had taken place during proceedings. The Audiencia
Provincial had consequently set aside the judgment delivered at first instance and convicted the
applicant without questioning him or the witnesses.

Furthermore, the Court noted that, contrary to the judgment at first instance, the Audiencia
Provincial had considered it as an established fact that the applicant had known, before the attack
on counsel for his former partner, of the judgment in the civil proceedings concerning his daughter’s
custody and of its outcome adversely affecting his interests.

However, neither the first-instance nor the appellate court’s case file contained any evidence
definitively establishing that fact. That conclusion should not have been considered as an inference
and had required further witness statements. Indeed, when a court drew an inference concerning
the subjective aspects of a case, the defendant’s conduct could not be legally assessed until a prior
attempt has been made to prove the reality of the conduct, which necessitated substantiating intent
on the part of a defendant.

The Court thus considered in the instant case that a reassessment had been made of the subjective
aspects of the facts without any personal questioning of the applicant enabling the latter to contest,
under adversarial proceedings, the new assessment of the case by the Audiencia Provincial.
Moreover, the statement given by one of the witnesses providing the applicant with an alibi had
been called into question by the Audiencia Provincial, without any questioning of witnesses on

The Court concluded that the extent of the examination conducted by the Audiencia Provincial
would have required a hearing of the applicant and the witnesses. There had therefore been a
violation of Article 6 § 1 of the Convention.

Just satisfaction (Article 41)

The Court held that Spain was to pay the applicant 6,400 euros (EUR) in respect of non-pecuniary
damage and EUR 6,000 in respect of costs and


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